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Fox v. Johnson

United States Court of Appeals, Ninth Circuit

August 8, 2016

Candace L. Fox, Petitioner-Appellant,
v.
Deborah K. Johnson, Respondent-Appellee.

          Argued March 5, 2015

          Submitted August 1, 2016 Pasadena, California

         Appeal from the United States District Court No. 2:04-cv-06933-AG-SS for the Central District of California Andrew J. Guilford, District Judge, Presiding

          Michael Parente (argued), Assistant Federal Public Defender; Sean K. Kennedy, Federal Public Defender; Federal Public Defender's Office, Los Angeles, California; for Petitioner-Appellant.

          David Wildman (argued) and Jason Tran, Deputy Attorneys General; Lance E. Winters, Senior Assistant Attorney General; Kamala D. Harris, Attorney General; Office of the Attorney General, Los Angeles, California; for Respondent-Appellee.

          Before: Stephen Reinhardt, N. Randy Smith, and Andrew D. Hurwitz, Circuit Judges.

         SUMMARY[*]

         Habeas Corpus

         The panel affirmed the district court's denial of a California state prisoner's habeas corpus petition challenging her conviction for first-degree murder and first-degree burglary.

         The petitioner pleaded guilty to second-degree murder and, pursuant to a plea agreement, was sentenced to fifteen years to life imprisonment. She later successfully petitioned to withdraw her guilty plea after establishing that the sentencing court failed to inform her that she would receive a mandatory term of lifetime parole as a direct consequence of her plea. At her subsequent trial, she was convicted of first-degree murder and first-degree burglary and was sentenced to life imprisonment without the possibility of parole.

         In her federal habeas petition, the petitioner sought specific performance of an alleged plea agreement in which the state promised her a term of imprisonment no greater than seven and one-half years in exchange of her plea. The panel held that because the petitioner chose in the state habeas proceedings to seek vacation of her conviction, rather than specific performance of the purported plea agreement, she had no due process right to specific performance of the rescinded agreement.

         Concurring, Judge Hurwitz wrote that the case was troubling and that, having had a hand in producing an outcome that disfavored the one defendant who cooperated with the prosecution, the state could remedy the situation either through clemency or by once again offering the petitioner the chance to plead guilty to second-degree murder.

         Dissenting, Judge Reinhardt wrote that the proceeding was fundamentally unfair, and due process required specific performance of the plea agreement and vacation of the petitioner's unconstitutional sentence of life without the possibility of parole.

          OPINION

          N.R. SMITH, CIRCUIT JUDGE.

         Candace Lee Fox pleaded guilty to second-degree murder in 1984 in California Superior Court and, pursuant to a plea agreement, was sentenced to a term of imprisonment of fifteen years to life. Approximately five years later, Fox successfully petitioned to withdraw her guilty plea after establishing that the sentencing court failed to inform her that she would receive a mandatory term of lifetime parole as a direct consequence of her plea. At her subsequent trial, Fox was convicted of first-degree murder, first-degree burglary, and the special circumstance that the murder was committed in the course of a burglary. She was sentenced to life imprisonment without the possibility of parole. In this 28U.S.C. § 2254 habeas proceeding, Fox now argues that the State originally promised her a term of imprisonment no greater than seven and one-half years in exchange for her plea, and asks for specific performance of that purported agreement.

         We refuse Fox's request and affirm the district court, because Fox chose in the state habeas proceedings to seek vacation of her conviction, rather than specific performance of the purported plea agreement. She therefore has no due process right to specific performance of the rescinded agreement.

         FACTUAL BACKGROUND

         In June 1984, Fox, Janet Meyer, Scott Peters, and Eddie Rangel drove to Lewis Levy's apartment to collect $100 that Levy allegedly owed Meyer for sexual services. Meyer told the others that Levy had $20, 000 to $30, 000 in travelers checks in his apartment. The group forced their way into the apartment and held Levy at gunpoint while they searched for cash and travelers checks. After they found Levy's wallet and $20, 000 in travelers checks, Meyer and Rangel departed to purchase cocaine, leaving Fox and Peters with Levy.

         Levy took this opportunity to run for the door. Peters struck Levy over the head with the barrel of his revolver until the handle broke. Peters then attempted to shoot Levy, but his gun jammed. Fox handed Peters a large steak knife from Levy's kitchen. Peters attempted to stab Levy twice, but the blade bent and did not penetrate. At that point, Levy fell to the ground nearly unconscious. When Meyer and Rangel returned with the cocaine, Levy remained semiconscious on the ground. After Rangel left, Peters explained to Meyer that Levy had tried to escape.

         After Fox, Peters, and Meyer used the cocaine, Meyer stated that she was not leaving the apartment until Levy was dead. Meyer took a Swiss Army knife from her pocket and repeatedly stabbed Levy. Fox struck Levy over the head with a beer bottle, and Peters attempted to strangle Levy with a phone cord. Nonetheless, Levy was still alive. Peters then left the apartment and waited in Fox's car. Twenty minutes later, Fox and Meyer left the house with two shopping bags containing the gun and knives used in the attack. They told Peters that Levy was dead.

         The next day, the group cashed several of Levy's travelers checks and purchased drugs. The following morning, Meyer's roommate called the police after overhearing an argument between Meyer and Fox about the murder. The police questioned Meyer, who disclosed the location of Levy's body. After further investigation, the police arrested Fox, Meyer, and Peters.

         PROCEDURAL BACKGROUND

         A. Fox's Guilty Plea and Sentence

         Fox, Meyer, and Peters were charged with first-degree murder, first-degree burglary and robbery, and the special circumstances of (a) murder during the commission of a robbery and burglary and (b) use of a deadly weapon in the murder, making them eligible for the death penalty. Fox agreed to plead guilty to second-degree murder[1] in exchange for testifying against Peters.[2]

         The plea agreement was not reduced to writing. Fox argues that she was promised she "would be paroled after serving 7.5 years with good behavior." The State contends that Fox was promised she would be sentenced to fifteen years to life in prison, but would be eligible for parole consideration after seven and one-half years. Fox's change of plea hearing on November 6, 1984, supports the State's contention:

PROSECUTOR: By way of sentence . . . you're going to receive-as we discussed, you're going to receive 15 years to life on this case. Do you understand that?
FOX: Yes.
PROSECUTOR: That is the sentence for second degree murder. There are no enhancements. It's a straight second degree and you're going to receive a sentence from [the court] of 15 years to life.
FOX: Yes.
PROSECUTOR: And do you understand that it's up to you how much time you will do. It's indeterminate. We can make no promises or representations on what the Board of Prison Terms will or will not do or when they will release you. There is a life-time top. Do you understand that?
FOX: Yes.

         After being so advised, Fox pleaded guilty. The court accepted her plea as knowing and voluntary. There is thus no contest that Fox agreed to a sentence of fifteen years to life. But, Fox was not advised during the plea colloquy that she also faced a lifetime term of parole when released.

         At the sentencing hearing, Fox's counsel asked for a continuance to amend the probation report. The court responded: "I don't understand exactly what you're doing here, Mr. Ficht. She is going to receive a sentence of fifteen to life, is that correct? Fifteen to life, and that's going to be her sentence." In response, Ficht stated that Fox's probation report was "the most outrageous document I've seen." The court told Ficht to "file an amendment. She's going to be there for quite awhile. I don't understand what the difference is. She should get going. She's losing time." Any parole consideration was only discussed during the following exchange:

FICHT: Also, if I may, for the record, Your Honor, I believe the People have indicated as part of the plea bargain that [Fox would] be looking at obtaining probation-parole, excuse me, in seven and a half years. Is that correct, [prosecutor]?
PROSECUTOR: That's correct.
TRIAL COURT: All right. Understand that?

         Fox now argues that this exchange "modified the plea agreement" to require that she be paroled after seven and one-half years in prison. However, neither the parties nor the court acknowledged any modification of the plea agreement at the hearing. Following the exchange between Ficht and the prosecutor, the court sentenced Fox to fifteen years to life in state prison without any reference to parole eligibility or release on parole, stating: "All right. Miss Fox, the court has read and considered the probation report. Probation is denied. You are sentenced to the state prison for the term prescribed by law, which in this case is fifteen years to life." Fox did not object.

         B. Post-Conviction Proceedings

         On July 1, 1986, Fox filed her first petition for a writ of habeas corpus in state Superior Court. Rather than seeking specific performance of the alleged plea agreement, Fox instead sought to withdraw her plea of guilty on two grounds.

         First, Fox alleged that, when she entered her plea, she "did not understand that her term could exceed seven and one-half years even if her prison behavior were good." Instead, Fox claimed that she believed that she was "entitled to release after seven and one-half years, provided that she behaved properly in state prison." Fox acknowledged that such a belief was contrary to California law, because a petitioner "is not entitled to release after serving the minimum period of incarceration." Fox also acknowledged that "no firm promise . . . was given [to her] before her actual sentencing" as to eligibility for parole in seven and one-half years. However, Fox maintained (citing the portion of the sentencing proceedings excerpted above) that the "the parties understood that if [Fox] was cooperative and fully truthful in her testimony, she would be eligible for parole after 7 1/2 years . . . and in fact would receive parole if she behaved herself in state prison." Fox also argued that, before entering her plea, she "was not advised of the mandatory post-incarceration parole term." Fox asserted that, had "she known the full consequences of her guilty plea, she would not have pled guilty."

         Second, Fox asserted that she had received ineffective assistance of counsel during the plea process and that she was "not in fact guilty of second degree murder."[3] Fox argued that her previous attorney "erroneously" told her that, if she went to trial, she could not use a defense of duress; her new counsel, on the other hand, assured her that she "had a good defense of duress." Fox argued that her former attorney failed to "comprehend and/or advise her of the defenses available" and that she entered her plea after "rel[ying] upon [such] erroneous lega1 advice." The Superior Court denied this first habeas petition, citing the guilty plea transcript.

         On August 26, 1986, Fox filed a second petition in the Court of Appeal, alleging "that her sentencing was unlawful and the matter should be remanded for resentencing." In this petition, Fox repeatedly insisted that she sought "withdrawal [of] her plea of guilty, " making the same arguments as those in her Superior Court petition. On September 4, 1986, the Court of Appeal denied the petition as not ripe, because Fox had not yet served seven and one-half years in prison.

         On January 24, 1989, after serving just over four and one-half years in prison, Fox filed a third habeas petition in the state Superior Court. The arguments echoed those in her previous petitions. Fox asked to withdraw her guilty plea, asserting that it was not voluntary and that her counsel was ineffective. Fox also argued that (1) newly discovered evidence exonerated her of the murder;[4] (2) defense counsel failed to throughly investigate and advise her regarding a viable duress defense; (3) she was not advised of a mandatory parole term after incarceration and "would not have entered a guilty plea if she had known of this lifetime parole"; and (4) she did not understand that her period of confinement would exceed seven and one-half years with good prison behavior. Importantly, this petition again did not seek specific performance of the alleged plea agreement. On October 13, 1989, the Superior Court granted the habeas petition, setting aside Fox's conviction and granting her a new trial on the basis that she had not been informed before entering the plea that she faced lifetime parole. The court did not address Fox's other arguments.

         On November 26, 1990, shortly before the new trial was to begin, Fox filed a motion seeking, for the first time, to enforce the previous plea agreement as she understood it-that is, assuring release after seven and one-half years-or, in the alternative, preventing the State from seeking more than a second-degree murder conviction at trial. The State argued that, because Fox had successfully withdrawn her plea of guilty, there was no plea agreement to enforce. The Superior Court denied "specific performance of the original case settlement."

         Fox was tried on the original charges of first-degree murder, first-degree burglary, and the special circumstance that the murder was committed in the course of a burglary. On January 28, 1992, the jury returned guilty verdicts on all charges. On May 13, 1992, Fox again requested that the court order specific performance of her prior plea bargain, arguing she was entitled to eligibility for parole in seven and one-half years. On May 29, 1992, the court denied the motion and sentenced Fox to life imprisonment without the possibility of parole.

         Fox appealed, asserting, among other things, that "the trial court erred in denying appellant's motions for specific performance of her plea bargain, " citing Santobello v. New York, 404 U.S. 257 (1971), for the proposition that specific performance is a remedy for breach of a plea agreement.[5] On March 30, 1994, the California Court of Appeal affirmed Fox's conviction. The court concluded that Fox was not entitled to specific performance of her plea bargain, stating that:

When Fox pled guilty in 1984, she got what she bargained for, a sentence of 15 years to life, with a promise of parole in seven and one-half years. Five years into her sentence (with only two and one-half years to go), Fox decided she didn't like the deal she'd made, petitioned for a writ of habeas corpus and succeeded in having her plea set aside, on the ground she had not been fully advised of the consequences of her guilty plea (her alternative ground of duress was rejected). She clearly felt very strongly that the obligation of a lifetime on parole was not something she could accept . . . . She got exactly what she asked for-her plea was set aside and the People were required to prove the charges against her.[6]

         Fox then filed a petition for review in the California Supreme Court, which was summarily denied on June 30, 1994.

         On April 22, 1997, Fox filed a new habeas petition in the Superior Court, which was denied on May 14, 1997. Fox filed another habeas petition in the Court of Appeal on April 23, 1998. On July 24, 1998, that court remanded for an evidentiary hearing on whether Fox received ineffective assistance of counsel in connection with the habeas petition that resulted in her guilty plea being withdrawn. The Superior Court "cabined" its inquiry to the question of whether counsel had advised Fox that, if she successfully withdrew her plea, she could face a new trial and a longer sentence, including a potential life sentence without the possibility of parole. During the two-day hearing, Fox's habeas counsel, Rowan Klein, testified that he had advised Fox that, if her habeas petition were granted, she would go back to square one and face the possibility of a sentence of life without parole. When asked if he considered seeking specific enforcement of the original plea bargain prior to seeking to withdraw the plea, Klein responded,

I'm sure I did but . . . [the reference to obtaining parole in seven and a half years wasn't] a plea bargain because it's an attorney uttering incompetent words at the time of sentencing. It's not something that is legally binding on The Court or the District Attorney, unfortunately. I mean, you can try and turn it into that through alliance and whatever, but, legally, it probably isn't the strongest argument. And that's why I sought relief on the stronger argument, which was the failure to advise her of the parole consequences. . . . My assessment was that the comments of Bruce Ficht [Fox's counsel at sentencing] are . . . an indication that he didn't know what he was taking about . . . with respect to the meaning of a 15-to-life sentence. To me, a plea bargain is when the parties may have a discussion at the time of the plea, not when an attorney makes a gratuitous comment at the time of sentencing.

         The Superior Court denied Fox's petition, finding that she had been advised prior to the 1989 grant of habeas "of all the possible ramifications that were legally available, including-and it may even have been the death penalty-but certainly the option of life without the possibility of parole; that she'd go back to square one."

         On February 9, 2001, Fox filed a new habeas petition in the California Court of Appeal, which was denied without explanation or citation to authority on August 15, 2001. On November 24, 2003, Fox filed a habeas petition in the California Supreme Court, which was denied on July 14, 2004, in an order stating: "Petition for writ of habeas corpus is DENIED. (See In re Robbins (1998) 18 Cal.4th 770, 780.)."

         Fox filed a pro se 28 U.S.C. § 2254 habeas petition in the district court on August 13, 2004, claiming that the state courts denied her due process rights by failing to specifically enforce her 1984 plea agreement. A magistrate judge ultimately recommended denying the petition, noting that Fox had "successfully moved to withdraw her guilty plea before she was eligible for release on parole; therefore, the State could not have actually breached the parole agreement in the manner petitioner claims." The district court adopted the report and recommendation, denied the petition, and issued a certificate of appealability on the question of the specific performance of Fox's 1984 plea agreement. This appeal timely followed.

         STANDARD OF REVIEW

         The district court's denial of a petition for a writ of habeas corpus is reviewed de novo. Jones v. Taylor, 763 F.3d 1242, 1245 (9th Cir. 2014). "[A] federal district court's findings and its adoption of the findings of a federal magistrate judge are reviewed under the clearly erroneous standard." Sanders v. Ratelle, 21 F.3d 1446, 1452 (9th Cir. 1994).

         Under the Anti-Terrorism and Effective Death Penalty Act ("AEDPA"), a federal court may not grant a habeas petition filed by a person in state custody:

with respect to any claim that was adjudicated on the merits in state court proceedings unless the adjudication of the claim (1) resulted in a 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 ...

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