Michael Bell v. Greg Lewis

FILED
NOT FOR PUBLICATION DEC 20 2011
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS
FOR THE NINTH CIRCUIT
MICHAEL XAVIER BELL, No. 10-56405
Petitioner - Appellant, D.C. No. 2:09-cv-03346-JFW-
MLG
v.
GREG LEWIS, MEMORANDUM *
Respondent - Appellee.
Appeal from the United States District Court
for the Central District of California
John F. Walter, District Judge, Presiding
Argued and Submitted November 17, 2011
Pasadena, California
Before: GOODWIN, W. FLETCHER, and RAWLINSON, Circuit Judges.
Michael Xavier Bell appeals the district court’s dismissal of his habeas
petition. We have jurisdiction under 28 U.S.C. § 2253. Because Bell has failed to
exhaust state remedies in light of Graham v. Florida, 130 S. Ct. 2011 (2010), we
vacate and remand to the district court.
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
When Bell was fourteen years old, he and an accomplice committed a series
of crimes over a period of hours. A California jury convicted Bell of several
counts of robbery, forcible rape, forcible oral copulation, and attempted
kidnapping. He was sentenced to 54 years to life in state prison. Bell appealed his
sentence to the California Court of Appeal, arguing that it was cruel and unusual
punishment. The Court of Appeal rejected Bell’s argument.
Several years later, Bell filed a petition for a writ of habeas corpus in district
court. The State filed an Answer, in which it admitted that “the Petition is not
barred by a failure to exhaust state remedies.” After the State filed its Answer, the
U.S. Supreme Court decided Graham, and the district court ordered supplemental
briefing in light of that decision. The State submitted a supplemental brief
discussing the implications of Graham. It did not raise the exhaustion issue in that
brief.
On this appeal, Bell argues that his sentence of 54 years to life is cruel and
unusual punishment. Bell relies on Graham, which held that the Eighth
Amendment prohibits sentencing a juvenile who did not commit homicide to a life
sentence without parole. Graham, 130 S. Ct. at 2034. Bell argues that the holding
and reasoning in Graham extend to “de facto” life sentences and that his is such a
sentence.
2
The State argues that Bell’s claim is unexhausted, and we agree. The
purpose of the exhaustion requirement is to ensure that state courts are the
principal forum for asserting constitutional challenges to state convictions. See
Harrington v. Richter, 131 S. Ct. 770, 787 (2011). The Graham decision itself
states that “[i]t is for the State, in the first instance, to explore the means and
mechanisms for compliance” with Graham’s holding. Graham, 130 S. Ct. at 2030.
Although Bell had exhausted state remedies at the time the State filed its
Answer, the intervening Graham decision rendered Bell’s claim unexhausted.
Graham was decided after the state court rejected Bell’s Eighth Amendment claim,
and the state courts have not had an opportunity to determine whether Bell’s
sentence complies with the holding in Graham. Thus, Bell has not exhausted state
remedies.
Bell argues that the State waived the exhaustion requirement by stating in its
Answer that Bell had exhausted state remedies. That statement is not a waiver. It
is merely a statement that was true at the time it was made. In light of Graham,
however, that statement is no longer true. The State’s failure to raise the
exhaustion issue in its supplemental brief is also not a waiver because it was not
express. See 28 U.S.C. § 2254(b)(3).
3
The remand will allow the district court to order a stay and abeyance in order
to retain jurisdiction of Bell’s federal habeas petition, in its discretion, while Bell
exhausts available remedies in state court.
VACATED and REMANDED.
4