Shannon v. Newland ( 2005 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
BRIAN DENNIS SHANNON,  No. 03-16833
Petitioner-Appellant,
v.  D.C. No.
CV-01-03275-MJJ
ANTHONY NEWLAND, Warden,
OPINION
Respondent-Appellee.

Appeal from the United States District Court
for the Northern District of California
Martin J. Jenkins, District Judge, Presiding
Argued and Submitted
April 11, 2005—San Francisco, California
Filed June 8, 2005
Before: Robert R. Beezer, Diarmuid F. O’Scannlain, and
Andrew J. Kleinfeld, Circuit Judges.
Opinion by Judge O’Scannlain
6629
6632 SHANNON v. NEWLAND
COUNSEL
Donald M. Horgan, Riordan & Horgan, San Francisco, Cali-
fornia, argued the cause and filed briefs for the petitioner;
Dennis P. Riordan was on the briefs.
Juliet B. Haley, Attorney General’s Office, San Francisco,
California, argued the cause and filed a brief for the respon-
dent; Bill Lockyer, Robert R. Anderson, Gerald A. Engler,
and Peggy S. Ruffra were on the brief.
OPINION
O’SCANNLAIN, Circuit Judge:
We must decide whether a California prisoner’s petition for
writ of habeas corpus is timely when it is filed long after his
conviction but shortly after a decision by the California
Supreme Court clarifying the state’s criminal law in a way
potentially favorable to his federal constitutional claim.
I
In October 1993, Brian Shannon and his girlfriend, Kim-
berly Stack, began to argue heatedly in the living room of
Shannon’s home. Stack was killed by a shot from a handgun
that Shannon kept on the premises. Evidence suggested that
the couple had been struggling physically at the time of the
shooting or shortly before. Shannon was charged with murder
and convicted by a jury. The court sentenced him to fifteen
years to life on that count, with an additional enhancement of
four years for the use of a gun and sixteen months on a weap-
ons possession charge to which Shannon pled nolo con-
tendere.
Shannon appealed his conviction, arguing (among other
SHANNON v. NEWLAND 6633
things) that the trial court had incorrectly instructed the jury.
At Shannon’s trial, the jury was instructed on the elements of
second-degree murder, which consists, in California, of “the
unlawful killing of a human being with malice aforethought.”
It was instructed that “malice” exists either when “there is
manifested an intention unlawfully to kill a human being,” or
when the defendant intentionally performs an act which he
knows is dangerous to human life.1 It was instructed that mur-
der is reduced to manslaughter if the defendant acted “upon
the ground of sudden quarrel or in the heat of passion” and
that “[t]o establish that a killing is murder and not manslaugh-
ter, the burden is on the People to prove beyond a reasonable
doubt each of the elements of murder and that the act which
caused the death was not done in the heat of passion or upon
a sudden quarrel.”
The parties do not dispute that all of the above instructions
were accurate. Shannon’s objection, rather, is to the court’s
instructions defining the lesser offense of voluntary man-
slaughter. The court instructed the jury that “[e]very person
who unlawfully kills another human being without malice
aforethought but with an intent to kill, is guilty of voluntary
manslaughter,” and that voluntary manslaughter requires the
prosecution to prove that “[t]he killing was done with the
intent to kill.” Shannon argued on appeal that the trial court
erred in instructing the jury that intent to kill is required for
a voluntary-manslaughter conviction. Instead, Shannon
argued, voluntary manslaughter—like murder—can also be
committed by acting with reckless disregard for human life.
The error was important, Shannon argued, for the following
reasons. Murder requires either intent to kill or reckless disre-
gard for life. If the killing is of the intent-to-kill variety, then
1
The prosecution alleged that Shannon acted with malice aforethought
because he intended to kill Stack or, in the alternative, behaved with wan-
ton disregard for human life by brandishing a gun he knew was dangerous.
The defense argued that the shooting was an accident.
6634 SHANNON v. NEWLAND
the existence of “heat of passion” clearly reduces the charge
to voluntary manslaughter. What happens, however, when the
killing is of the reckless-disregard variety, but the defendant
acted in the heat of passion? The crime should not be murder,
because heat of passion negates malice; but it cannot be vol-
untary manslaughter under the trial court’s instructions,
because that crime requires actual intent to kill. Shannon thus
argued that voluntary manslaughter must include reckless-
disregard homicides as well as intentional ones and that the
erroneous instruction could have led the jury to convict him
of murder even had the prosecution failed to meet its burden
to disprove heat of passion.
The California Court of Appeal rejected Shannon’s claim
in June 1996, opining that his “argument does make sense”
but holding that it was bound by prior decisions of the Cali-
fornia Supreme Court that included intent to kill as an element
of voluntary manslaughter. See People v. Shannon, 46 Cal.
App. 4th 1365, 1370 (Ct. App. 1996). The California Supreme
Court denied review on October 17, 1996.
Because Shannon did not petition the U.S. Supreme Court
for certiorari, his conviction became final, for purposes of the
statute of limitations for a habeas petition under the Antiterro-
rism and Effective Death Penalty Act (“AEDPA”), 28 U.S.C.
§ 2244(d)(1), when the period for filing such a petition
elapsed on January 17, 1997. See Bowen v. Roe, 188 F.3d
1157, 1159-60 (9th Cir. 1999). He sought no federal habeas
relief at that time, and the standard limitations period of one
year from the date of final judgment, 28 U.S.C.
§ 2244(d)(1)(A), therefore expired on January 17, 1998.
In June 2000, the California Supreme Court decided People
v. Lasko, 999 P.2d 666 (Cal. 2000), holding that the standard
voluntary manslaughter instruction was indeed incorrect
under California law because actual intent to kill is not an ele-
ment of the crime. Id. at 668. In August 2000, Shannon peti-
tioned the California Court of Appeal for a writ of habeas
SHANNON v. NEWLAND 6635
corpus based on Lasko. The Court of Appeal denied his peti-
tion without opinion and the California Supreme Court denied
review in January 2001.
On August 27, 2001, Shannon filed a habeas petition in dis-
trict court for the Northern District of California, arguing that
the erroneous jury instruction violated his federal right to due
process. The district court denied the petition as untimely and,
in the alternative, on the merits. The district court denied
Shannon’s request for a Certificate of Appealability, but in
December 2003, we granted a certificate and this appeal fol-
lowed.2
II
[1] A habeas petition by a person in custody pursuant to the
judgment of a state court is subject to a one-year statute of
limitations. See 28 U.S.C. § 2244(d)(1). The date on which
the one-year period begins is the latest of four possible dates:
(A) the date on which the judgment became final
by the conclusion of direct review or the expiration
of the time for seeking such review;
(B) the date on which the impediment to filing an
application created by State action in violation of the
Constitution or laws of the United States is removed,
if the applicant was prevented from filing by such
State action;
(C) the date on which the constitutional right
asserted was initially recognized by the Supreme
Court, if the right has been newly recognized by the
Supreme Court and made retroactively applicable to
cases on collateral review; or
2
We initially granted the certificate only as to the question of untimeli-
ness, but subsequently expanded it to include the question whether the vol-
untary manslaughter instruction violated Shannon’s constitutional rights.
6636 SHANNON v. NEWLAND
(D) the date on which the factual predicate of the
claim or claims presented could have been discov-
ered through the exercise of due diligence.
Id. Since direct review of Shannon’s conviction ended in 1996
and he did not file this habeas petition until August 2001, his
petition clearly is not timely under subsection (A). He argues,
however, that the California Supreme Court’s decision in
Lasko constituted either, under subsection (B), the removal of
an “impediment to filing an application created by State
action,” or, under subsection (D), the factual predicate of his
claim. Alternatively, Shannon argues, the period between his
conviction and the California Supreme Court’s decision in
Lasko should be equitably tolled. We consider these argu-
ments in turn.3
A
Shannon first argues that the California Supreme Court’s
decision in Lasko, by confirming his contention that his jury
instructions had been erroneous, removed a state-created
impediment to the filing of his habeas petition and thus trig-
gered a new one-year statute of limitations under 28 U.S.C.
§ 2244(d)(1)(B). He contends that the state appellate court’s
rejection of his appeal in June 1996 and the California
Supreme Court’s refusal to review that decision in October
1996 were state-created impediments to his ability to seek
habeas relief. Before the California Supreme Court decided
Lasko in 2000, federal courts would have been bound by the
state appellate court’s holding that the challenged jury instruc-
tion accurately stated California law. See West v. Am. Tel. &
Tel. Co., 311 U.S. 223, 237-38 (1940) (holding that federal
courts must defer to an intermediate state court’s interpreta-
3
We review de novo the dismissal of a habeas petition on grounds of
untimeliness. See Delhomme v. Ramirez, 340 F.3d 817, 819 (9th Cir.
2003). Legal determinations regarding equitable tolling are also reviewed
de novo. See Malcolm v. Payne, 281 F.3d 951, 956 (9th Cir. 2002).
SHANNON v. NEWLAND 6637
tion of state law, made in the very case under consideration,
when the state supreme court has denied review). Thus, Shan-
non argues, he was “imped[ed]” from filing his habeas claim
until the California Supreme Court finally corrected the lower
California courts’ error and clarified the elements of voluntary
manslaughter in Lasko.
[2] We are not persuaded, however, that the state appellate
court’s decision was an “impediment” to Shannon’s filing a
habeas petition. He was free to file such a petition at any time.
Shannon’s real objection is that the state court’s decision
determined state law in a way that provided no legal basis for
a federal habeas petition: since the state court held that the
challenged instruction accurately defined voluntary man-
slaughter under California law, Shannon could not success-
fully argue in federal court that the instruction was so
mistaken as to violate due process. But Shannon provides no
support for the proposition that a state’s determination of its
own substantive law in a way that leaves a convict with no
meritorious federal claim can constitute an “impediment”
under § 2244(d)(1)(B), and so far as we can tell, none exists.
The limited case law applying § 2244(d)(1)(B) has dealt
almost entirely with the conduct of state prison officials who
interfere with inmates’ ability to prepare and to file habeas
petitions by denying access to legal materials. See, e.g.,
Whalem/Hunt v. Early, 233 F.3d 1146 (9th Cir. 2000) (en
banc); Egerton v. Cockrell, 334 F.3d 433 (5th Cir. 2003). A
plurality of the Supreme Court has also suggested that the
provision would apply if a “state court . . . refuse[d] to rule
on a constitutional claim that ha[d] been properly presented to
it.” Lackawanna County Dist. Att’y v. Coss, 532 U.S. 394,
405 (2001) (plurality op. of O’Connor, J.). These cases com-
port with the plain meaning of the provision, which applies
when a petitioner has been impeded from filing a habeas peti-
tion.
6638 SHANNON v. NEWLAND
It is not surprising that § 2244(d)(1)(B) has not been inter-
preted as Shannon suggests, because the implications of his
contention would be serious. Whenever a state court clarified
its own substantive or procedural law, any prisoner convicted
under the understanding of the state’s legal standard or proce-
dure previously prevailing in state courts—no matter how
long ago he was convicted—would be free to file a federal
habeas petition. The text of § 2244(d)(1)(B) cannot bear that
construction, and we decline to adopt it.4
B
[3] Shannon also argues that the California Supreme
Court’s decision in Lasko triggered a new one-year statute of
limitations under 28 U.S.C. § 2244(d)(1)(D) by supplying the
“factual predicate” for his federal constitutional claim. This
argument is equally difficult to square with the statute’s lan-
guage. Section 2244(d)(1)(D) refers to a “factual” predicate;
the California Supreme Court’s decision in Lasko, however,
clarified the law, not the facts. If a change in (or clarification
of) state law, by a state court, in a case in which Shannon was
not a party, could qualify as a “factual predicate,” then the
term “factual” would be meaningless.
At our instruction, the parties discussed at oral argument
the implications of the Supreme Court’s recent decision in
Johnson v. United States, 125 S. Ct. 1571 (Apr. 4, 2005), for
Shannon’s claim of timeliness under § 2244(d)(1)(D). John-
son actually dealt with 28 U.S.C. § 2255, ¶6(4), the counter-
part to § 2244(d)(1)(D) that applies to habeas-like motions by
federal prisoners attacking their sentences. The two provisions
are almost identical, though,5 and the Supreme Court has
4
Section 2244(d)(1)(B) also requires that the “impediment” be imposed
“in violation of the Constitution or laws of the United States.” Shannon
does not explain how the pre-Lasko opinions of the California courts,
interpreting the elements of voluntary manslaughter under California law,
could violate the Constitution or federal laws.
5
Section 2255, ¶6(4), provides for the one-year limitations period to
begin on “the date on which the facts supporting the claim or claims pre-
sented could have been discovered through the exercise of due diligence.”
SHANNON v. NEWLAND 6639
interpreted the statute-of-limitations provisions of § 2244 and
§ 2255 in concert with one another. See, e.g., Lackawanna
County, 532 U.S. at 402 (plurality op. of O’Connor, J.).
In Johnson, a federal prisoner’s sentence had been
enhanced because of his prior state convictions. When one of
the state convictions was subsequently vacated by a state
court, Johnson sought to challenge his federal sentence under
§ 2255. Since more than a year had elapsed since his federal
conviction became final, Johnson relied on § 2255, ¶6(4). The
Eleventh Circuit held that a state legal decision did not qualify
as a “fact” under that provision. See Johnson v. United States,
340 F.3d 1219, 1223 (11th Cir. 2003). The Supreme Court,
however, rejected that analysis, holding that a state-court
order vacating a petitioner’s state conviction does qualify as
a “fact” under § 2255, ¶6(4)—and thus, doubtless, would also
qualify as a “factual predicate” under § 2244(d)(1)(D).
[4] Johnson establishes that a state-court decision can, in
some circumstances, qualify as a fact. There is, however, a
crucial difference between Johnson and this case. In Johnson,
the state-court decision in question was a decision in the peti-
tioner’s own case. It did not merely establish an abstract prop-
osition of law; rather, it directly eliminated Johnson’s legal
status as a convict. That status was a fact used to enhance his
sentence, just as the use of a gun or the quantity of narcotics
sold are facts that can enhance a defendant’s sentence. In this
case, by contrast, the California Supreme Court’s decision in
Lasko was unrelated to Shannon’s case and had no direct
effect on his legal status.
The opinions in Johnson support this distinction. The
majority noted that
[w]e commonly speak of the “fact of a prior convic-
tion,” and an order vacating a predicate conviction is
spoken of as a fact just as sensibly as the order enter-
6640 SHANNON v. NEWLAND
ing it. In either case, a claim of such a fact is subject
to proof or disproof like any other factual issue.
Johnson, 125 S. Ct. at 1579-80 (citation omitted). By contrast,
the California Supreme Court’s clarification in Lasko of the
elements of voluntary manslaughter under California law is
not subject to “proof or disproof like any other factual issue.”
We would never, for example, ask a jury to decide whether
a judicial decision had indeed changed a state’s law in the rel-
evant way, nor would the parties introduce evidence on the
question.
The dissenting Justices disagreed with the majority’s reso-
lution of the case, but for all purposes relevant to Shannon’s
case they agreed with the majority. Joined by each of the
other three dissenters, Justice Kennedy wrote:
The Court is quite correct, in my view, to hold that
the state-court order of vacatur itself is the critical
fact which begins [AEDPA’s] 1-year limitations
period. It is an accepted use of the law’s vocabulary
to say that the entry or the setting aside of a judg-
ment is a fact. An order vacating a judgment is a def-
inite and significant fact of litigation history. So the
Court is on firm ground to say a state judgment of
vacatur begins the 1-year limitations period.
Id. at 1583 (Kennedy, J., dissenting) (citations omitted). The
California Supreme Court’s decision in Lasko is not, by con-
trast, a “significant fact of [Shannon’s] litigation history.”
[5] Thus, while the Court’s decision in Johnson does estab-
lish that a state-court judgment can sometimes constitute a
fact triggering a new limitations period under AEDPA, the
language of both the majority and the dissent suggests that a
state-court decision establishing an abstract proposition of law
arguably helpful to the petitioner’s claim does not constitute
the “factual predicate” for that claim. Moreover, like Shan-
SHANNON v. NEWLAND 6641
non’s claim under § 2244(d)(1)(B), the construction of
§ 2244(d)(1)(D) that he urges would create a large loophole
in AEDPA’s scheme to promote finality. Whenever a state
court announced a new interpretation or clarification of state
law, that announcement would constitute the “factual predi-
cate” for a federal habeas claim seeking to enforce the new
ruling retroactively. But nothing in AEDPA suggests that it
was meant to take away state courts’ ability to handle as they
see fit the always-thorny problem of the retroactivity of
changes in substantive law.
C
[6] Finally, Shannon argues that the time between his con-
viction and the California Supreme Court’s decision in Lasko
should be equitably tolled.6 Equitable tolling is available only
when “extraordinary circumstances beyond a prisoner’s con-
trol make it impossible to file the petition on time.” Stillman
v. Lamarque, 319 F.3d 1199, 1202 (9th Cir. 2003). “Extraor-
dinary circumstances exist when . . . wrongful conduct pre-
vents a prisoner from filing.” Id. (internal quotation marks
omitted). Equitable tolling has been applied, for example,
where the prison library was inadequate, Whalem/Hunt v.
Early, 233 F.3d 1146, 1148 (9th Cir. 2000) (en banc); where
the prisoner was denied access to his files, Lott v. Mueller,
304 F.3d 918, 925 (9th Cir. 2002); and where an attorney’s
egregious misconduct prevented timely filing, Spitsyn v.
Moore, 345 F.3d 796, 801 (9th Cir. 2003).
6
In his opening brief, Shannon argues for tolling the period from the
time of his conviction until the California Supreme Court denied the state
habeas petition he filed based on Lasko. The reply brief, however, refers
to the allegedly tolled period as lasting only until the California Supreme
Court’s decision in Lasko itself. The tolling of either period would suffice
to render his claim timely. If Shannon’s claim had merit, the second for-
mulation would be the accurate one (because it is Lasko that he claims
ended the “prevent[ion]” of his filing a federal habeas petition).
6642 SHANNON v. NEWLAND
[7] Each of the cases in which equitable tolling has been
applied have involved wrongful conduct, either by state offi-
cials or, occasionally, by the petitioner’s counsel. See Still-
man, 319 F.3d at 1202 (9th Cir. 2003) (“Extraordinary
circumstances exist when . . . wrongful conduct prevents a
prisoner from filing.” (internal quotation marks omitted)).
Moreover, in each case, the misconduct has actually pre-
vented the prisoner from preparing or filing a timely petition.
Shannon’s case meets neither of those criteria. He does not
argue that the California courts acted “wrongful[ly]” as a mat-
ter of federal law by defining voluntary manslaughter as
requiring intent prior to Lasko; and nothing prevented him
from preparing and filing a habeas petition at any time. His
argument, rather, is that the state court prevented him from
prevailing on a federal habeas claim, because, before Lasko,
the federal courts would have had to accept the California
courts’ understanding of their own law.
[8] Shannon’s argument thus calls for an unprecedented
extension of the principle of equitable tolling. We have stated,
however, that “[e]quitable tolling is justified in few cases,”
and that “the threshold necessary to trigger equitable tolling
[under AEDPA] is very high, lest the exceptions swallow the
rule.” Spitsyn, 345 F.3d at 799 (alteration in original). More-
over, just like Shannon’s previous arguments, this argument
would open the door for any state prisoner to file a habeas
petition anytime a state court issues a clarification of state
law. Such an interpretation cannot be squared with the goals
of finality that are central to AEDPA. Shannon is not entitled
to equitable tolling.
III
Because Shannon’s petition for writ of habeas corpus was
untimely, the district court was correct to dismiss it. We need
not reach—and take no position on—the merits of Shannon’s
constitutional claim. The judgment of the district court dis-
missing the petition as untimely is
AFFIRMED.