Lead Opinion
Dissent by Judge CALLAHAN
OPINION
This is a rare and extraordinary ease. On July 7, 2001, Ronnie Sherrors and Petitioner Willard Hall as co-defendants were convicted of first degree murder in state court. The trial court’s jury instructions included California Jury Instruction Criminal (“CALJIC”) 2.15, which allowed the jury to infer guilt of murder from evidence that defendants were in possession of re
On July 16, 2003, on Sherrors’s and Hall’s consolidated direct appeal, the California Court of Appeal determined that the trial court erred when it instructed the jury on CALJIC 2.15. People v. Hall, No. D038857,
After exhausting state court remedies, Hall filed his own habeas petition in federal court raising a CALJIC 2.15 instructional error claim. Later Hall quit pursuing this habeas petition because he believed that he “co-submitted” another federal ha-beas petition with Sherrors. Sherrors, who filed the petition, was granted habeas relief. Hall, who had relied on Sherrors to advance their instructional error claim on Hall’s behalf, found himself out in the cold. But the U.S. district court judge William Q. Hayes in San Diego recognized these extraordinary circumstances. The district court granted Hall’s motion to reopen his original habeas proceedings under Federal Rule of Civil Procedure 60(b)(6) and granted Hall’s habeas petition consistent with our court’s earlier grant of habeas relief to Sherrors. For the reasons set forth below, we affirm.
BACKGROUND
Here’s the story about how the case came about. In September 1999, after experiencing financial problems and developing a drug habit, Stephen Foth moved back to his home town of San Diego to “get his life back in order.” Foth’s close friend, Grace Ko, permitted him to stay with her. On the afternoon of September 29, 1999, Foth told Ko he was going to see another friend to borrow some money and would return later. Foth borrowed Ko’s black Audi A4, her cell phone, and her Visa card so that he could put some gas in the car. The next day, Foth’s body was found in a pumpkin patch. He had bled to death after being stabbed approximately 83 times.
Nine days after the body was found, Lena Hixon told a friend that she witnessed “something ... pretty bad” and that two men had threatened her life. The friend notified the police after Hixon refused to do so. At first, Hixon told the police that she committed Foth’s murder with two men named Benjamin Wilson and Terrence Smallgreen. A few days later, Hixon changed her story and told the police that Ronnie Sherrors and Willard Hall were involved in the murder. Sherrors and Hall were charged with the murder of Stephen Foth.
Although inconsistent at times, Hixon’s testimony was the key to the prosecution’s case. Here is Lena Hixon’s story:
On September 29, 1999, Foth approached Hixon and asked if she knew where he could buy some rock cocaine. She
After driving around in the Audi with Sherrors and Hall, Sherrors drove off the highway and parked the Audi in a dirt lot. Sherrors and Hall then opened the trunk, from which Foth climbed out. Hixon testified that she demanded to know what was going on, but Sherrors threatened her and grabbed her hands, breaking two of her acrylic fingernails.
Then, Sherrors began to stab Foth, while Foth was tussling with Hall. Sher-rors forced Hixon to stab Foth. Sherrors and Hall stripped Foth and threw his body into the bushes. They put Foth’s clothes in the trunk and drove away in the Audi. Hixon, Sherrors, and Hall stopped at a gas station convenience store where Hall wаs thwarted trying to úse Foth’s ATM card.
Katherine Davis, Hixon’s fellow inmate at Los Colinas Women’s Detention Center, also testified at trial. Hixon had spoken to Davis on several occasions about the incidents on September 29. In these conversations, Hixon again pointed the finger at Sherrors and Hall, but her story to Davis differed from the story she told to the police. Hixon’s story to Davis implied that Hixon was much more involved in the crime than the story she told to the police.
The State’s case against Hall relied overwhelmingly on Hixon’s story. In addition to Hixon’s version of events, the State’s evidence against Hall included (1) testimony that Hall was seen sitting in the passenger side of the Audi days after the crime; (2) testimony that Sherrors and Hall had seen a newscast mentioning the Audi, and the next morning the Audi was found burned; and (3) Foth’s high school class ring found in a pair of Hall’s pants. None of the evidence found at the crime scene — a shirt, a' pair of size eight sneakers, a wristwatch, a broken fingernail, a pair of bloodstained socks, and a shoe print in the soil — was linked to Hall.
Crucial to the federal habeas appeal before us now, at the close of trial, the state jury was instructed on CALJIC 2.15, which states:
If you find that a defendant was in possession of recently stolen property, the fact of that possession is not by itself sufficient to prove an inference that the defendant is guilty of the crime of murder. Before guilt may be inferred, there must be corroborating evidence tending to prove a defendant’s guilt. However, this corroborating evidence need only be slight and need not by itself be sufficient to warrant an inference of guilt.
As corroboration, you may consider the attributes of possession, time, place and manner; that the defendant had an opportunity to commit the crime charged; the defendant’s conduct; his false or contradictory statements, if any; and any other statements that may have been made with reference to the property.
On July 7, 2001, the jury convicted Sher-rors and Hall of first-degree murder. Sher-rors and Hall were both sentenced to life without the possibility of parole, plus one year.
PROCEDURAL HISTORY
On July 16, 2003, on consolidated direct appeal, the California Court of Appeal found that it was error to instruct the jury
On January 3, 2005, Hall filed a pro se habeas petition under 28 U.S.C. § 2254 in federal district court. On March 15, 2005, Hall filed his First Amended Petition for Writ of Habeas Corpus. His petition alleged the following claims: (1) the trial court gave an improper modification of jury instruction CALJIC 2.15;. (2) the trial court gave an improper modification of jury instruction CALJIC 8.81.17; and (3) the trial court provided an incomplete verdict form to the jury. The California Attorney General’s Office and the Warden F.W. Haws (“the State”) moved to dismiss the petition on the ground that Hall had failed to exhaust the second claim in state court.
Because Hall had failed to demonstrate good cause for failing to exhaust the second claim, see Rhines v. Weber,
Meanwhile, in 2005, Sherrors, Hall’s co-defendant, was also advancing a federal habeas petition, propounding the same CALJIC 2.15 argument as Hall. Hall believed that he was a “co-submitter” in these filings based on Sherrors’s representations to him and their history of shared appeals. On November 2, 2007, the district court granted Sherrors’s habeas petition, finding that the use of CALJIC 2.15 constituted prejudicial constitutional error. The State appealed to the Ninth Circuit.
On May 29, 2009, Hall filed a “motion to join” Sherrors’s case. The district court construed the motion to join as a Rule 60(b) motion to reopen his habeas proceedings. The district court dismissed the motion without prejudice, stating that Hall could re-file within 60 days of receiving notice of the Ninth Circuit’s decision in Sherrors’s appeal. On August 31, 2011, the State served on Hall a copy of this court’s decision in Sherrors v. Woodford,
Within 60 days of receiving notice of our decision in Sherrors, Hall re-filed his motion to join Sherrors’s case. In his motion, Hall stated that he “had a good faith reason to believe his interests were included in any outcome of [Sherrors’s case]” because Sherrors had communicated to Hall and to the district court that the petition was “co-submitted,” and because “throughout the state courts [process], counsel for both co-defendants used this language of joinder to ensure that both defendants benefitted from any success through their appeals.” After the State opposed the motion, a pro se Hall filed a motion to concede to the State’s opposition.
On May 22, 2012, the district court appointed counsel for Hall because “a denial of Hall’s motion under Rule 60(b) may raise significant due process issues.” With
The district court granted Hall’s motion under Rule 60(b)(6), finding that extraordinary circumstances — an intervening change in law, i.e., Sherrors v. Woodford— warranted relief from judgment. The district court then concluded that habeas relief was warranted based on the erroneous instruction of CALJIC 2.15. The State appealed both the grant of Rule 60(b)(6) relief and habeas relief.
DISCUSSION
1. Rule 60(b) Motion
A district court’s grant of relief from judgment under Federal Rule of Civil Procedure Rule 60(b) is reviewed for abuse of discretion. Casey v. Albertson’s, Inc,
Under Rule 60(b), a district court may relieve a party from a final judgment in certain circumstances.
The State argues that Hall’s Rule 60(b) motion runs afoul of three of AEDPA’s provisions: (1) the bar on second or successive petitions under 28 U.S.C. § 2244(b)(1); (2) the one-year statute of limitations under 28 U.S.C. § 2244(d); and (3) the exhaustion rule under 28 U.S.C. § 2254(b). In addition, the State argues that the district court abused its discretion by granting relief under Rule 60(b)(6). For the reasons discussed below, we disagree.
A. AEDPA’s Bar on Second or Successive Petitions
Under AEDPA’s second or successive petition provisions, any claim that has been adjudicated in a previous petition must be dismissed. 28 U.S.C. § 2244(b)(1). The State argues that Hall’s Rule 60(b) motion is a disguised successive habeas petition that asserts a рreviously adjudicated claim and therefore the district court
While there is no bright-line rule for distinguishing between a bona fide Rule 60(b) motion and a disguised second or successive habeas petition, the Supreme Court’s decision in Gonzalez v. Crosby informs our analysis. See Jones v. Ryan,
Thus, according to Gonzalez, a bona fide Rule 60(b) motion “attacks, not the substance of the federal court’s resolution of a claim on the merits, but some defect in the integrity of the federal habe-as proceedings.” Id. at 532,
Hall’s motion conforms to Gonzalez’s description of a true Rule 60(b) motion. First, the federal judgment from which Hall seeks relief — the order dismissing his petition for failure to comply with the district court’s July .25, 2006 exhaustion order — does not substantively address the federal grounds for setting aside his conviction. The dismissal was based on Hall’s failure to comply with the district court’s exhaustion order; it was a non-merits-based ruling. Second, Hall’s Rule 60(b) motion only explains the circumstances why his original petition was dismissed, i.e. that Hall failed to comply with the court’s exhaustion order because he believed he had eo-submitted another há-beas petition with Sherrors. Hall’s motion to reopen does not present any substantive ground for setting his conviction aside. Therefore, because neither the district court’s dismissal nor Hall’s motion to reopen address the merits for setting Hall’s conviction aside, allowing the motion to proceed is not inconsistent with AEDPA. Id. at 533,
Our conclusion is further supported by this court’s decision in Butz v. Mendoza-Powers,
• In sum, we agree with the’ district court that Hall’s Rule 60(b) motion is a true Rule 60(b) motion and does not run afoul of AEDPA’s bar against second or successive petitions.
B. AEDPA’s Statute of Limitations
The State argues that even if Hall’s Rule 60(b) motion were a true Rule 60(b) motion (meaning it did not raise a “claim” within the meaning of Gonzalez), it is still an “application” for relief to which the district court was required to apply AED-PA’s statute of limitations before considering any of the discretionary provisions contained in Rule 60(b).
C. Exhaustion under AEDP A
In its reply brief, the State argues that Hall’s petition contained an unexhausted claim both before the dismissal and after the district court granted relief under Rule 60(b), and therefore, the use of Rule 60(b) to reopen Hall’s case is inconsistent with AEDPA.
It is true that Hall initially presented an unexhausted claim in his habeas petition, which prompted the district court to order Hall to either voluntary dismiss the entire petition or formally abandon the unex-hausted claim. Hall requested an extension to file a formal abandonment, signaling a desire to proceed with the second option. When Hall contacted the district court again on May 29, 2009 with the intent to “join” his co-defendant’s successful habeas petition, Hall mentioned only the CALJIC
D. Relief under Rule 60(b) (6)
As stated above, Rule 60(b) “allows a party to seek relief from a final judgment, and request reopening of his case, under a limited set of circumstances.” Gonzalez,
“[T]he decision to grant Rule 60(b)(6) relief is a ease-by-case inquiry that requires the trial court to intensively balance numerous factors, including the competing policies of the finality of judgments and the incessant command оf the court’s conscience that justice be done in light of all the facts.” Phelps v. Alameida,
This is an especially unique case in which a perfect storm produced a situation in which Hall would have been subject to “manifest injustice” if not for Rule 60(b)(6). See Alpine Land & Reservoir Co.,
Moreover, we cannot find fault with the district court’s determination that Hall proceeded diligently or that the delay between the dismissal of Hall’s petition and the filing of his motion to reopen was reasonable. We have said that reasonable diligence “does not require an overzealous or extreme pursuit of any and every avenue of relief;” instead, it “requires the effort that a reasonable person might be expected to deliver under his or her particular circumstances.” Brooks v. Yates,
Further, we disagree with the State’s contention that the district court “minimized” the State’s interests in finality and comity. In Sherrors, this court ruled that the very same trial and resulting conviction was constitutionally compromised. The State could not in good faith argue reliance on the finality of Hall’s conviction because there had been no finality for Sherrors, Hall’s co-defendant. Accordingly, the State’s interest in finality deserved “little weight.” Cf. Buck,
For these reasons, we affirm the district court’s grant of Rule 60(b) relief to Hall.
II. Habeas Relief
A. AEDPA Review of the State Court’s Instructional Error Determination
We review a district court’s decision on a petition for writ of habeas corpus de novo. Deck v. Jenkins,
(1) resulted in а decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States; or (2) resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding.
28 U.S.C. § 2254(d).
Under the “contrary to” clause, a federal habeas court may grant habeas relief if the state court arrives at a conclusion opposite to that reached by the Supreme Court on a question of law or if the state court decides a case differently than the Supreme Court has on a set of materially indistinguishable facts. Williams v. Taylor,
On direct appeal in Hall’s case, the California Court of Appeal determined that it was error to instruct the jury on CALJIC 2.15, but affirmed Hall’s conviction, concluding that the error was harmless. In doing so, the California Court of Appeal did not find the error to be of constitutional magnitude, and consequently applied the harmless error standard set forth in People v. Watson.
The Supreme Court has stated that the Due Process Clause of the Fourteenth Amendment “protects the accused against conviction except upon proof beyond a reasonable doubt of every fact necessary to constitute the crime with which he is charged.” Francis v. Franklin,
In this case, the State used CALJIC 2.15,
In People v. Prieto, the California Supreme Court held that use of CALJIC 2.15 in nontheft offenses is improper because “[pjroof a defendant was in conscious possession of recently stolen property simply does not lead naturally and logically to the conclusion the defendant committed a rape or murder.”
Under clearly established Supreme Court law, the trial court violated Hall’s federal due process rights by instructing the jury that it could presume Hall murdered Foth from the fact that Hall possessed Foth’s property (plus “slight” corroborating evidence) because the presumed fact does not follow from the facts established. See Francis,
The dissent asserts that the instructional error in this case is only one of state law because Prieto never says that the permis
The relevant inquiry to determine whether the instructional error was of constitutional magnitude is whether the suggested conclusion — that Hall murdered Foth — is one that reason and common sense justify in light of the proved fact that Hall was in possession of Foth’s ring some time after Foth was killed. Proof that Hall possessed Foth’s ring does not make it “more likely than not” that Hall murdered Foth. The use of CALJIC 2.15 in this case constitutes an instructional error of constitutional magnitude, and the California Court of Appeal’s determination otherwise was objectively unreasonable. See Ulster Cty.,
B. Brecht Harmless'Error Review
But the inquiry does not end the conclusion that the state court’s decision was unreasonable in finding no constitutional violation. Habeas relief on a trial error claim is appropriate only if the error results in “actual prejudice.” Davis v. Ayala, — U.S. -,
The Brecht standard is so stringent that it “subsumes” the AED-PA/Chapman standard for review of a state court determination of the harmlessness of a constitutional violation. Deck v. Jenkins,
Even if we were to separately analyze the state court’s harmless error determination under AEDPA/Chapman before engaging in a separate Brecht analysis, we would find that the California Court of Appeal’s harmless error determination was objectively unreasonable. As discussed above, instructing the jury on CALJIC 2.15 violated Hall’s due process rights, and therefore harmless error should have been analyzed under the Chapman standard for constitutional violations. See Chapman v. California,
Our Brecht analysis also reveals that the state court’s harmless error determination was unreasonable because the instructional error resulted in actual prejudice. Like the two magistrate judges, the two district court judges, and another panel majority of our court that have reviewеd this trial error under Brecht, we have “grave doubts” about whether the jury, without having heard the erroneous CALJIC 2.15 instruction, would have found Hall guilty beyond a reasonable doubt. The State’s case against Hall relied overwhelmingly on the testimony of Lena Hixon, whose story changed numerous times before trial and whose statements under oath were contradicted by the objective evidence at trial and by the other witnesses.
First, it is nearly impossible to believe Hixon’s testimony of the timeline of events given the judicially noticed distance between the different locations where each event allegedly took place. Second, Hixon lied about using and possessing Foth’s property. She testified that she never saw, touched, or took any of Foth’s property or used Foth’s cell phone. But phone records showed that days after the murder, Hixon used Foth’s phone to call a customer and her fingerprints were found on some of Foth’s belongings. In addition, months after the crime, a woman by the name of Mikiisha Perine found incriminating items among those she was storing on behalf of Hixon’s boyfriend, Michael Washington. Perine found a blue purse containing Hix-on’s social security card, Ko’s Visa and Costco cards, Foth’s ATM card, and three of Foth’s business cards. Third, Hixon downplayed her own involvement in the crimes. Initially, Hixon denied ever stabbing Foth. Then, she told police that she did stab Foth once, but that Sherrors forced her to stab Foth. Thеn, she told fellow inmate Katherine Davis that she used her shirt over the knife to avoid leaving fingerprints and that she was surprised at how the knife felt as it went into the body. In addition, Hixon testified that she broke a fingernail when Sherrors grabbed her at the crime scene, but later she told Davis she broke it while she was
Given these non-trivial inconsistencies, the jury could have disbelieved Hixon entirely. After all, she had a motive to lie; she was offered a plea agreement in exchange for her testimony against Sherrors and Hall. Aside from Hixon, the only other evidence against Hall was his possession of Foth’s ring and his presence as a passenger in the Audi. No physical evidence linked Hall to the murder.
CALJIC 2.15 invited and encouraged the jury to infer that Hall was guilty of murder from his possession of Foth’s ring plus “slight” corroborating evidence. The instruction defined “slight” corroborating evidence as the “attributes of possession (timе, place and manner), opportunity to commit the crime, and defendant’s conduct.” This allowed the jury to infer that Hall committed the murder based on the “time, place, and manner” of his possession; in other words, the jury may have been encouraged to infer that Hall committed the murder based on the mere fact that he was in possession of the ring and a passenger in the Audi in the days after the murder. As already discussed, such an inference is illogical and improper. Because Hixon’s testimony was unbelievable and because of the lack of other evidence linking Hall to the murder, we have grave doubts about whether the jury would have found Hall guilty beyond a reasonable doubt without the unconstitutional permissive instruction.
CONCLUSION
We conclude that Hall’s Rule 60(b) motion was not inconsistent with AEDPA’s bar on second or successive petitions, AEDPA’s statute of limitations, or AED-PA’s exhaustion requirement. The district court did not err in reviewing Hall’s Rule 60(b) motion and it did not abuse its discretion in reopening Hall’s case under Rule 60(b)(6). Further, we conclude that habeas relief is warranted. Therefore, we AFFIRM the district court’s order granting Hall’s motion to reopen under Rule 60(b) and we AFFIRM the district court’s
AFFIRMED.
Notes
. Hall and Sherrors were represented by counsel at trial.
. The district court may relieve a party from a final judgment for the following reasons:
(1) mistake, inadvertence, surprise, or excusable neglect;
(2) newly discovеred evidence that, with reasonable diligence, could not have been discovered in time to move for a new trial under Rule 59(b);
(3) fraud (whether previously called intrinsic or extrinsic), misrepresentation, or misconduct by an opposing party;
(4) the judgment is void;
(5) the judgment has been satisfied, released or discharged; it is based on an earlier judgment that has been reversed or vacated; or applying it prospectively is no longer equitable; or
(6) any other reason that justifies relief.
Fed. R. Civ. P. Rule 60(b).
. The State attempts to distinguish Butz by pointing out that Butz (1) arose from a gatek-eeping motion filed under 28 U.S.C. § 2244(b)(3)(A); and (2) concerned a procedural dismissal with prejudice rather than a dismissal without prejudice. Nothing in Butz suggests that its holding was limited to gatek-eeping motions or dismissals with prejudice and the State has offered no argument as to why these two facts were crucial to the court's decision.
. The State, relying on a footnote from Gonzalez, believes Hall’s Rule 60(b) motion to be an "application” because the district court's dismissal of Hall's original petition rested on a correct ruling rather than an erroneous ruling. In this Gonzalez footnote, the Court further explained the term "on the merits,” stating that a habeas petitioner does not make a "claim” when he "merely asserts that a previous ruling which precludes a merits determination was in error.” Gonzalez v. Crosby,
. Before the district court, Hall also argued for relief under Rule 60(b)(5). The district court did not grant relief undеr Rule 60(b)(5) and Hall does not argue that it applies now. Therefore, we do not address whether relief under Rule 60(b)(5) would have been appropriate.
. When Hall filed his original federal habeas petition on January 3, 2005, he was pro se. Later on, on March 12, 2012, the district court appointed counsel to assist Hall in reopening his habeas proceedings under Rule 60(b).
. The Watson standard is used to review non-constitutional, trial type errors. Watson requires a reviewing court to determine whether "it is reasonably probable that a result more favorable to the appealing party would have been reached in the absence of the error.”
. As a reminder, CALJIC 2.15 states: If you find that a defendant was in possession of recently stolen property, the fact of that possession is not by itself sufficient to prove an inference that the defendant is guilty of the crime of murder. Before guilt may be inferred, there must be corroborating evidence tending to prove a defendant’s guilt. However, this corroborating evidence need only be slight and need not by itself be sufficient to warrant an inference of guilt.
As corroboration, you may consider the attributes of possession, time, place and manner; that the defendant had an opportunity to commit the сrime charged; the defendant’s conduct; his false or contradictory statements,
. California courts have .disagreed that this instructional error is of a constitutional magnitude. See, e.g., People v. Hayes, No. D060781,
. The dissent argues that the California Court of Appeal did not address Hall's claim that the jury instruction violated the federal constitution, so there is no reasoned decision on that claim. Accordingly, the dissent contends that we should use the gap-filling approach from Harrington v. Richter,
The Harrington gap-filling approach applies when the state court fails to set forth any reasoning for denying a claim. That is not the case here.
In Hall’s brief to the California Court of Appeal, he argued that use of CALJIC 2.15 violated due process. Although the dissent contends that the California Court of Appeal addressed only why the use of CALJIC 2.15 was an error of state law, the Court of Appeal’s opinion also included grounds for rejecting Hall's constitutional argument. The California Court of Appeal relied on Prieto, which in turn relies on Barker, a case that discusses when a permissive inference instruction comports with due process. People v. Barker,
Regardless, even if we applied the gap-filling approach from Harrington, we would still hold that the result reached by the California Court of Appeal was unreasonable. The hypothetical “arguments or theories” that could have supported the denial of relief are, as the dissent suggests, that the permissive inference in CALJIC 2.15 is not "irrational” so it cannot amount to a violation of due process, or that the instruction was harmless even under Chapman. We have addressed those arguments in the body of our opinion.
. This court previously drew this conclusion in the case of Hall’s co-defendant, Sherrors. See Sherrors v. Woodford, 425 Fed.Appx. 617 (9th Cir. 2011). Though Sherrors is an unpublished memorandum disposition that is not binding on us, it is quite persuasive because the analysis arose from the very same trial. In fact, the State concedes that it assumed that our decision in Sherrors would be binding and that “if it were not for Johnson v. Williams, the State may not have taken this appeal.” We disagree that Johnson changes the result in this case.
In Johnson, the Supreme Court held that when a state court addresses some, but not all, of a defendant’s claims, the federal court on habeas review must presume, subject to rebuttal, that the unaddressed claims were adjudicated on the merits, thereby warranting AEDPA deference.
Dissenting Opinion
dissenting:
I agree with the majority that this case is “rare and extraordinary” but not for the reasons it cites. What is extraordinary is that this court repeats the error of Sherrors v. Woodford,
Nor is Hall deserving of relief under Rule 60(b). Hall knowingly caused his own petition to be disinissed, and, of his own accord, failed to take any action on that dismissed federal habeas petition for three years. Indeed, he waited until after Sher-rors procured habeas relief before seeking leave to reopen his own case. The state explained at oral argument that, because Hall had clearly abandoned his own efforts to, pursue habeas relief, he was not retried with Sherrors. Reopening his ease imper-missibly rewards his inaction and gamesmanship, and unfairly imposes the cost of his retrial on the state.
I therefore respectfully dissent.
I
Hall and Sherrors stole a car that Steve Foth was driving. They forced Foth into the trunk of the car and drove out to a dark street. There, accompanied by Lena Hixon, they pulled Foth out of the trunk and began stabbing him. Foth sustained approximately eighty-three stab wounds and bled to death. Hall and Sherrors stripped Foth’s body naked, discarded it in some bushes, and drove away.
Hall and Sherrors were tried and convicted in state court of first degree murder while using a deadly weapon, and with the speсial circumstance of murder during the course of a robbery. At trial, the jury was instructed with CALJIC Ño. 2.15, which states:
If you find that a defendant was in possession of recently stolen property, the fact of that possession is not by itself sufficient to prove an inference that the defendant is guilty of the crime of murder. Before guilt may be inferred, there must be corroborating evidence tending to prove a defendant’s guilt. However, this corroborating evidence need only be slight and need not by itself be sufficient to warrant an inference of guilt.
As corroboration, you may consider the attributes of possession — time, place and manner; that the defendant had an opportunity to commit the crime charged;the defendant’s conduct; his false or contradictory statements, if -any; and any other statements that may have been made with reference to the property.
Each defendant received a sentence of life without the possibility of parole, plus one year.
Hall appealed the judgment to the California Court of Appeal, which affirmed the judgment in an unpublished decision. The Court of Appeal assessed whether it was error to have instructed the jury pursuant to CALJIC No. 2.15, but assessed this error under the harmless error test of People v. Watson,
In 2005, Hall filed a Petition for Writ of Habeas Corpus in the district court pursuant to 28 U.S.C. § 2254, challenging his conviction. He then filed a First Amended Petition which raised not only his claim related to CALJIC No. 2.15, but also an additional claim, related to a different jury instruction,' CALJIC No. 8.81.17. When the state moved to dismiss the petition on the ground that the claim related to CALJIC No. 8.81.17 was unexhausted, Hall requested that the district court stay his case so that he could present his unex-hausted claim to the state courts. This request was denied. The district court advised Hall that he could either “voluntarily dismiss his entire federal petition and return to state court to exhaust his unex-hausted claims,” or “formally abandon his unexhausted claim and proceed with his exhausted claims.” Hall was explicitly informed by the district court that if he chose to proceed with his exhausted claims, “he must file a pleading entitled ‘Formal Abandonment of Unexhausted Claim’ with this Court no later than 30 days after the District Judge issues his decision.” The district court informed Hall that he was “presented with the options stated above to avoid dismissal of his petition.” Hall requested an extension of time to file a formal abandonment of his unex-hausted claim, which was granted. But Hall never submitted a notice of formal abandonment or any other filing in response to the district court’s order. Hall’s mixed petition was therefore dismissed without prejudice and the case was terminated.
Hall’s co-defendant Sherrors also filed a Petition for Writ of Habeas Corpus in 2005, challenging his own conviction. In May 2007, well after the dismissal of Hall’s petition, the district court conditionally granted the writ, and the state appealed that decision. It was not until almost two years latér — and over three years after the district court’s dismissal of Hall’s petition — that Hall filed a “Motion to Join Case of Co-Defendant” in the district court. The district court treated this filing as a motion to reopen Hall’s original habe-as petition. The district court deemed “consideration of the matter” premature while the decision granting Sherrors’s petition was on appeal, and denied the motion “without prejudice to refile the motion once the Court of Appeals for the Ninth Circuit issues a final decision in Sherrors’s habeas case.” When the Ninth Circuit affirmed the district court’s decision to grant Sherrors’s petition in 2011, Sherrors,
II
Rule 60(b)(6) entitles the moving party to relief from judgment for “any other reason that justifies relief’ and a motion invoking this rule must be filed “within a reasonable time ... after the entry of the judgment.” Fed. R. Civ. P. 60(b)(6), (c)(1). Our precedent is clear that “[w]e use Rule 60(b)(6) ‘sparingly as an equitable remedy to prevent manifest injustice.’ ” Lai v. California,
Hall does not come close to showing a “good reason for failing to take the action sooner,” United States v. Holtzman,
Granting Rule 60(b)(6) relief under these circumstances not only contradicts our Rule 60 jurisprudence but blithely accepts Hall’s excuses for his inaction. Indeed, the conclusion that these facts “are the reason for Hall’s failure to comply with the district court’s January 25, 2006 order” finds
Ill
The majority compounds its mistake by finding an error of constitutional magnitude where none exists. “The Due Process Clause of the Fourteenth Amendment ‘protects the accused against conviction except upon proof beyond a reasonable doubt of every fact necessary to constitute the crime with which he is charged.’ ” Francis v. Franklin,
Here, the California Court of Appeal addressed the merits of Hall’s instructional-error claim only as an error of state law, and found that any error was harmless under Watson,
“When a state court rejects a federal claim without expressly addressing that claim, a federal habeas court must presume that the federal claim was adjudicated on the merits .... ” Johnson v. Williams,
People v. Prieto,
The California Supreme Court reached this same conclusion when it considered whether CALJIC No. 2.15 created an improper permissive inference in violation of a defendant’s due process rights. People v. Moore,
The majority concludes the opposite, and finds that the jury instruction violated Hall’s due process rights. Op. at 990-91. The majority finds not only that the state court erred in concluding that this error was one of state law only, but that this decision was objectively unreasonable. Op. at 991. In doing so, the majority repeats the error that we are so often criticized for, and “treat[s] the unreasonableness question as a test of its confidence in the result it would reach under de novo review .... ” Harrington,
The majority’s conclusion further ignores that we “determine the constitutionality of a permissive inference instruction on a case-by-case basis,” in the context of the trial at issue. United States v. Warren,
Accordingly, the state court did not err, let alone unreasonably apply clearly established federal law, in rejecting Hall’s claim that instructing the jury with CALJIC No. 2.15 was a constitutional error. To the contrary, giving the jury this instruction was an error of state law only.
IV
Even assuming that instructing the jury with CALJIC No. 2.15 was not simply an error of state law, but was an error of constitutional magnitude, Hall is still not entitled to relief because any error was harmless.
Of course, because this is a collateral proceeding, we must apply not only the KEIDPAJChapman standard of review, but also the standard set forth by Brecht v. Abrahamson,
The majority applies the wrong standard, and in doing so, fails to afford the state court the deference it is due. The
Indeed, the overwhelming evidence presented at trial that Hall murdered Foth underscores that it would have been, entirely reasonable for the state court to reject Hall’s federal claim on the basis that the error was harmless. Lena Hixon testified in detail about the manner in which Hall and Sherrors committed the murder, and her testimony was corroborated by, and consistent with, other evidеnce presented at trial. The prosecution also admitted evidence that Hixon told a fellow inmate that she had held Foth down as Sherrors and Hall stabbed him, and that the three of them — Hixon, Sherrors, and Hall — had robbed Foth and killed him, leaving him naked in the bushes. The prosecution introduced evidence corroborating and supporting Hixon’s account of the murder. Foth’s body was found naked. An autopsy report revealed that Foth sustained eighty-three stab wounds. When police arrested Sherrors and Hall, they found Foth’s class ring in a pair of Hall’s pants. Sherrors and Hall kept Foth’s car for several days, claiming it belonged to Hixon’s mother. The burned and destroyed car was found near Hall and Sherrors’s apartment the day after the two men saw a news report describing the car. Someone unsuccessfully attempted to use Foth’s ATM card at 8:56 PM the night of the murder, and someone used a cell phone in Foth’s possession to call a pager owned by Hix-on’s boyfriend, Michael Washington. When Hall and Sherrors were arrested and searched, the police found Washington’s pager number in Sherrors’s pocket. Each of these pieces of evidence provides corroboration for Hixon’s testimony.
Hixon’s testimony also accounts for specific details of Foth’s murder. For example, responding officers found a number, of items at the scene, including a broken fingernail and a watch. Hixon testified that when Hall and Sherrors initially let Foth out of the trunk of the car, Sherrors had grabbed her hands, breaking two of her acrylic fingernails. She also testified that after the murder, Sherrors mentioned dropping his watch at the scene. Evidence showed that Foth’s ATM card was unsuccessfully used that night; Hixon testified that, following the murder, the trio attempted to use Foth’s ATM card at a convenience store.
Moreover, while the California Court of Appeal applied only the Watson harmless-error standard in assessing the instruction’s prejudicial effect, its sound reason
We answer this question in the negative. CALJIC No. 2.15 specifically instructed the jurors that they could not infer guilt of murder from the defendants’ possession of recently stolen property absent corroborating evidence of guilt. The inference of guilt addressed in CALJIC No. 2.15 is permissive, not mandatory, and thus the jury was entitled to credit, or reject, the inference based on its evaluation of the evidence.
It further observed that the jurors were instructed that they needed to find the elements of each crime, and the special circumstances, beyond a reasonable doubt. .Most importantly, the court determined that because the jury found true the special circumstance that the defendants committed the murder during the commission of a robbery, it was clear that the jury had “accepted the substance of Hixon’s testimony regarding the defendants’ involvement in the incident,” and, “[biased on Hixon’s testimony, there is no reasonable likelihood that [the jury] would have rendered a verdict more favorable to the defendants had the court omitted this instruction.”
By contrast, the majority walks through what it deems to be the flaws in Hixon’s testimony, stating that it is “nearly impossible to believe” her account “of the time-line of events,” that she “lied about using and possessing Foth’s property,” that she “downplayed her own involvement in the crimes,” and that she “lied or changed her story regarding several other details of the night.” Op. at 993. Adding up these invented shortcomings, the majority concludes that the jury “could have disbelieved Hix-on,” and “may have been encouraged to infer that Hall committed the murder based on the mere fact that he was in possession of the ring and the Audi in the days after the murder.” Op. at 993. These speculations do not show that the theory of harmlessness that may have supported the state court’s rejection of Hall’s due process claim was unreasonable. See Ayala,
The fact that Sherrors was retried without the erroneous instruction and was again convicted of first degree murder only confirms that any error in giving CALJIC No. 2.15 was harmless. At Sher-rors’s retrial, the jury again found true that he committed the crime during the commission of a robbery, and he was again sentenced to life in prison without the possibility of parole. People v. Sherrors,
V
Hall’s years-long inaction precludes him from demonstrating the type of extraordinary circumstances required for relief under Rule 60(b)(6). And, even assuming that such relief were warranted, Hall has not shown that the permissive inference creat
It bears repeating that “[a]s a condition for obtaining habeas corpus from a federal court, a state prisoner must show that the state court’s ruling on the claim being presented in federal court was so lacking in justification that there was an error well understood and comprehended in existing law beyond any possibility for fairminded disagreement.” Harrington,
I therefore respectfully dissent.
. The majority contends that Harrington does not apply because the Court of Appeal’s analysis under the Watson standard indicates that it determined that there was no constitutional
Moreover, the majority’s analysis contradicts the clear holding of Williams,
. Prieto’s citation to Barker is revealing, but not for the reasons given by the majority. See Op. at 990-91. Indeed, the Prieto court appears to have considered, and rejected, Barker's conclusion that instructing the jury with CALJIC No. 2.15 on a murder charge implicates a defendant's due process rights.
. Again, although the California Court of Appeal assessed harmlessness, it did so under the Watson standard, and addressed only whether the error was one of state law. The California Supreme Court issued a summary denial of Hall's federal claim. As explained above, when a state court’s determination of a federal claim is unaccompanied by a reasoned decision, we “must determine what arguments or theories ... could have supported ... the state court's decision .... ” Harrington,