Tracy Jones v. Gloria Henry

MEMORANDUM *

In 1996, Tracy Maxxizzine Jones pleaded no contest in California Superior Court to an assault offense that can be sentenced as a felony or a misdemeanor. The sentencing judge treated the offense as a felony, and because Jones had two prior qualifying felonies, she received twenty-five years to life in prison under California’s “three strikes” law. Following a number of collateral challenges to her sentence in state court, Jones filed a federal habeas petition in May 2005, raising several claims of ineffective assistance of counsel. The State of California moved to dismiss *719 Jones’s amended petition on grounds of untimeliness. The district court denied the motion and granted habeas relief on the basis of Jones’s claim of ineffective assistance of appellate counsel. The court, however, denied habeas relief on the basis of Jones’s claim of ineffective assistance of trial counsel. The State appeals the district court’s rulings on timeliness and ineffective assistance of appellate counsel, and Jones appeals the court’s ruling on ineffective assistance of trial counsel. We address each claim in turn. As the facts and procedure are known to the parties, we do not discuss…

concurring in part:

I agree that counsel for Petitioner Tracy Jones failed to perfect her appeal as requested. I also agree that counsel’s failure to perfect the appeal was a sufficiently egregious dereliction to warrant equitable tolling. See Holland v. Florida, — U.S. -, -, 130 S.Ct. 2549, 2562 , 177 L.Ed.2d 130 (2010); see also Spitsyn v. Moore, 345 F.3d 796, 801 (9th Cir.2003). Accordingly, I concur in the affirmance of the district court’s grant of habeas relief to Jones on her claim asserting ineffective assistance of appellate counsel.

Because of the unique procedural posture of this case, the issues raised in Jones’s cross-claims are pending in the state court and are, therefore, unexhaust-ed. See King v. Ryan, 564 F.3d 1133, 1138 (9th Cir.2009). In that circumstance, I think it more appropriate to remand the case to the district court to exercise its discretion regarding whether to stay the habeas petition pending exhaustion. See id. at 1139 (describing the procedure to be used by district cowis).

In sum, I concur in the affirmance of the district court’s grant of habeas relief to Jones. I would remand the case to the district court for a determination of whether to…

FILED

NOT FOR PUBLICATION DEC 07 2011

MOLLY C. DWYER, CLERK

UNITED STATES COURT OF APPEALS U.S . CO U RT OF AP PE A LS

FOR THE NINTH CIRCUIT

TRACY MAÈÈIZZINE JONES, No. 09-15550

Petitioner - Appellant, D.C. No. 2:05-cv-01067-GEB-

GGH

v.

GLORIA A. HENRY; ATTORNEY MEMORANDUM *

GENERAL OF THE STATE OF

CALIFORNIA,

Respondents - Appellees.

TRACY MAÈÈIZZINE JONES, No. 09-16120

Petitioner - Appellee, D.C. No. 2:05-cv-01067-GEB-

GGH

v.

GLORIA A. HENRY; ATTORNEY

GENERAL OF THE STATE OF

CALIFORNIA,

Respondents - Appellants.

Appeal from the United States District Court for the Eastern District of California

* This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3. Garland E. Burrell, District Judge, Presiding

Argued and Submitted September 1, 2010 San Francisco, California

Before: B. FLETCHER, TALLMAN, and RAWLINSON, Circuit Judges.

In 1996, Tracy Maxxizzine Jones pleaded no contest in California Superior

Court to an assault offense that can be sentenced as a felony…