Candace Fox v. Deborah Johnson

FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

CANDACE L. FOX, No. 13-56704 Petitioner-Appellant, D.C. No. v. 2:04-cv-06933-AG-SS

DEBORAH K. JOHNSON,

Respondent-Appellee. OPINION

Appeal from the United States District Court for the Central District of California Andrew J. Guilford, District Judge, Presiding

Argued March 5, 2015 Submitted August 1, 2016 Pasadena, California

Filed August 8, 2016

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

Opinion by Judge N.R. Smith; Concurrence by Judge Hurwitz; Dissent by Judge Reinhardt 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…

Concurrence by Judge HURWITZ;

Dissent by Judge REINHARDT

OPINION

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, Pox 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 28 U.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…

concurring:

Candace Fox committed a gruesome and senseless crime. She was ultimately convicted of first-degree murder, and does not argue in this § 2254 proceeding that she did not receive a fair trial.

Nonetheless, as both Judge Smith and Judge Reinhardt note, this is a troubling case. Fox originally pleaded guilty to second-degree murder in exchange for her testimony against a co-defendant. She held up her end of the bargain, testifying for five hours in a preliminary hearing. Yet both that co-defendant ahd another received lesser sentences than the one Fox is now serving. Moreover, the record of the plea bargaining process is,' to put it charitably, a mess. At one point the record suggests that Fox was promised release from prison after seven and one-half years, and at another reflects that Fox was clearly advised that her sentence was indeterminate, and that the parole board would ultimately decide when she would be released.

But, all this became moot when the superior court granted Fox’s habeas petition, setting aside her guilty plea and conviction. That is the remedy she repeatedly sought. Indeed, her habeas counsel testified that he thought about seeking specific…

dissenting:

Candace Fox’s crime was not a pretty one. Yet, in 1984, California made her a promise in exchange for her promise of consideration it badly wanted from her. It promised her that, if she testified against her co-defendant and pleaded guilty to second degree murder, she would be paroled, assuming good behavior, in seven and one-half years. If the State had kept its word, Fox would have been released from prison over two decades ago. Instead, because the State brazenly broke its promise to her and lied about it to the courts, Fox will now likely spend the rest of her life in prison, unless the governor commutes her sentence.

Thirty years ago, in 1986, when Fox filed her first habeas petition, this case should have had a simple resolution. There would be no petition before us today if the State had simply assured Fox that she would receive the term of imprisonment that she and the State had agreed to when she forfeited her freedom, or if the State courts that heard Fox’s 1986 petitions had fulfilled their obligation, under Santobello v. New York, 404 U.S. 257 , 92 S.Ct. 495 , 30 L.Ed.2d 427 (1971), to determine the appropriate remedy for the State’s breach of its plea…