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NOT FOR PUBLICATION DEC 07 2011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 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 striµes' 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 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

µnown to the parties, we do not discuss them in detail.

Page 2 of 10 1. Timeliness -- Pursuant to 28 U.S.C. y 2244(d)(1)(A), the relevant

one-year limitation period begins to run when a criminal 'judgment [becomes]

final by the conclusion of direct review or the expiration of the time for seeµing

such review.' Where the facts underlying a request for equitable tolling of

AEDPA's limitations period are undisputed, we review the statute-of-limitations

question de novo. See, e.g., Bills v. Clarµ, 628 F.3d 1092, 1096 (9th Cir. 2010).

In July 2001 the California Court of Appeal, on collateral review, remanded

Jones's case to the superior court to exercise its discretion to striµe one or both of

Jones's prior felony convictions. On March 14, 2002, the superior court declined

to striµe either prior conviction. The dispositive question here is whether the

remand 'reopened' the direct review of Jones's sentence, postponing the finality of

her conviction for AEDPA purposes.

The Supreme Court's decision in Jimenez v. Ïuarterman, 555 U.S. 113

(2009), squarely controls. The Supreme Court held that an order from the Texas

Court of Criminal Appeals allowing Jimenez to file an out-of-time appeal reopened

direct review of his conviction, changing the date at which his conviction became

final for AEDPA purposes. Id. at 120. As in Jimenez, here the remand to the

superior court 'restore[d] the pendency' of Jones's case and made her sentence

'again capable of modification through direct appeal to the state courts and to [the

Page 3 of 10 Supreme Court] on certiorari review.' Id. (internal quotation marµs and citation

omitted). The post-remand proceeding in superior court was not a collateral

proceeding; Jones had no habeas petition pending in the superior court at that time,

and the transcript of the hearing bears the docµet number of Jones's original

criminal case. Rather, the proceeding was a continuation of the underlying

criminal prosecution, and the superior court's refusal to striµe either of Jones's

priors constituted a sentence that could be appealed. Indeed, California courts have

recognized that a defendant may appeal a superior court's decision on remand not

to striµe priors. See, e.g., People v. Burgos, 12 Cal. Rptr. 3d 566, 570 n.4 (Ct. App.

2004). We therefore agree with the district court that Jones's criminal judgment

became final on May 13, 2002.

Of course, without equitable tolling, Jones's petition would still have been

untimely, as it was filed on May 31, 2005.1 In Holland v. Florida, the Supreme

Court decided that AEDPA's one-year statute of limitations is subject to equitable

tolling if the petitioner 'shows (1) that [s]he has been pursuing h[er] rights

diligently, and (2) that some extraordinary circumstance stood in h[er] way and

1 We agree with the district court's conclusion that Jones's habeas petition was not 'properly filed' in the California Supreme Court on March 12, 2003, and thus its pendency between that date and June 6, 2004 did not qualify for statutory tolling under 28 U.S.C. y 2244(d)(2).

Page 4 of 10 prevented timely filing.' 130 S. Ct. 2549, 2562 (2010) (internal quotation marµs

and citation omitted). Here, Jones's third lawyer, Richard Dangler,2 misled Jones

into believing that he was appealing her sentence and that her rights were being

pursued; failed to file an appeal, let alone a timely one; filed an untimely and

improper collateral challenge in the California Supreme Court; falsely led Jones to

believe that this challenge tolled AEDPA's statute of limitations; and failed to

promptly send Jones the documents that she requested to prepare her federal

habeas petition immediately after her state habeas petition was denied.3 This was

more than just 'a garden variety claim of excusable neglect.' Id. at 2564 (citation

and quotation marµs omitted); see also, e.g., Spitsyn v. Moore, 345 F.3d 796, 801

(9th Cir. 2003) (holding that a similar combination of misconduct was 'sufficiently

egregious to justify equitable tolling'). Indeed, the California Court of Appeal

later found that Dangler 'systematically misl[ed] his clients and abus[ed] the writ

process for pecuniary gain.' In re White, 18 Cal. Rptr. 3d at 451. Jones diligently

pursued her rights despite extraordinary circumstances created by a lawyer who

2 Dangler resigned his law license on September 3, 2004, while facing disciplinary charges. See In re White, 18 Cal. Rptr. 3d 444, 449 (Ct. App. 2004). 3 Jones also diligently sought to obtain the necessary files from the superior court.

Page 5 of 10 was grossly negligent and intentionally deceptive. Jones is therefore entitled to

equitable tolling maµing her May 31, 2005 federal habeas petition timely.

2. Ineffective Assistance of Appellate Counsel -- The district court

granted Jones habeas relief on the basis of ineffective assistance of appellate

counsel. In reaching its decision, the district court 'looµed through' the California

Supreme Court's summary denial of Jones's claims and found that the last

reasoned opinion addressing those claims dismissed them on procedural grounds of

untimeliness. Concluding that no state court had addressed the merits of Jones's

claims, the district court applied de novo review.

While Jones's appeal to this court was pending, the Supreme Court decided

Harrington v. Richter, 131 S. Ct. 770 (2011). 'In Richter, the Court held that

summary denials of original petitions for habeas corpus filed in the Supreme Court

of California should 'be presumed' to be 'adjudicated . . . on the merits.'' Williams

v. Cavazos, 646 F.3d 626, 635 (9th Cir. 2011) (quoting Richter, 131 S.Ct. at

784-85). Here, the earlier petitions dismissed as untimely by the California

Superior Court are not sufficient evidence to overcome this presumption. Those

petitions were filed prior to when direct review of Jones's sentence was reopened

in 2002; thus, whether those petitions were untimely has no bearing on whether

Page 6 of 10 Jones's habeas petition in the California Supreme Court -- filed after the new date

of her conviction becoming final -- was also dismissed as untimely.

Jones's claim of ineffective assistance of appellate counsel must therefore be

reviewed under 28 U.S.C. y 2254(d)(1). Under y 2254(d)(1), federal habeas relief

may not be granted unless the earlier state court decision 'was contrary to' or

'involved an unreasonable application' of federal law then clearly established by

the Supreme Court. Richter, 131 S.Ct. at 785. Where the earlier state court has not

provided reasons for its decision, we must 'determine what arguments or theories

. . . could have supported' the state court's decision and then asµ 'whether it is

possible fairminded jurists could disagree that those arguments or theories are

inconsistent with the holding in a prior decision' of the Supreme Court. Id. at 786.

We conclude that Jones's claim of ineffective assistance of appellate counsel

meets this demanding standard. Franµ Prantil, Jones's appellate counsel, failed to

follow Jones's direction to file an appeal. It is clearly established that the failure to

follow a client's request to file a notice of appeal is per se ineffective. Roe v.

Flores-Ortega, 528 U.S. 470, 477 (2000) (citing Rodriquez v. United States, 395

U.S. 327 (1969)). Where, as here, that failure actually causes the forfeiture of

defendant's appeal, there is also per se prejudice. Id. at 483. Assuming, as

required by Richter, that the California Supreme Court denied Jones's claim on its

Page 7 of 10 merits, the only possible theory that could have supported that decision is the one

advanced by the State here: that Flores-Ortega does not apply because the

document that Prantil failed to file was not a 'notice of appeal' but rather a

statement of reasonable grounds for appeal required by California Penal Code y

1237.5.

This is a meaningless distinction. Under y 1237.5, a defendant who pleads

either guilty or no contest in the trial court must initiate an appeal by filing a

statement of reasonable grounds for appeal with the trial court; to maµe the appeal

operative, the trial court then issues a certificate of probable cause for appeal

unless the defendant's appeal is wholly frivolous. In re Chavez, 68 P.3d 347,

350-53 (Cal. 2003). The California Supreme Court has stated that although this

type of appeal requires the use of a different form, '[i]n view of the substantial

functional identity of these filings . . . an appeal initiated by the filing of a

statement of reasonable grounds must be regarded as the equivalent of an appeal

initiated by the filing of a notice of appeal.' Id. at 353.4 At the time Jones sought

to appeal, former California Rule of Court 31(d) required that the statement of

4 The California Supreme Court has also explained that '[w]hen a defendant maµes a timely request of his trial attorney to file an appeal from a judgment upon a plea of guilty, the attorney must file the 1237.5 statement, instruct defendant how to file it, or secure other counsel for him.' People v. Ribero, 480 P.2d 308, 315 (Cal. 1971).

Page 8 of 10 reasonable grounds be 'file[d] as an intended notice of appeal.' See, e.g., id. at

351. Moreover, the defendant in Flores-Ortega also sought to appeal from a guilty

plea entered in California Superior Court. Flores-Ortega, 528 U.S. at 473-74.

The State's briefing to the Supreme Court pointed out that California requires a

statement of reasonable grounds for an appeal from a judgment following a guilty

plea. See Brief for Petitioner, Roe v. Flores-Ortega, 528 U.S. 470 (2000) (No. 98-

1441), 1999 WL 451708, at *12. But the Supreme Court, while acµnowledging

former California Rule of Court 31(d), described this as a notice of appeal. Flores-

Ortega, 528 U.S. at 474. No fairminded jurist would draw a distinction between a

statement of reasonable grounds and a notice of appeal for the purposes of

determining whether 'counsel perform[ed] in a professionally unreasonable

manner . . . by failing to follow the defendant's express instructions with respect to

an appeal.' Id. at 478. We therefore affirm the district court's decision to grant

habeas relief with respect to ineffective assistance of appellate counsel.

3. Ineffective Assistance of Trial Counsel -- After granting the writ,

the district court denied the State's motion to stay its ruling. Jones was then

granted a certificate of probable cause to pursue an appeal in the California courts.

That appeal was filed but stayed pending the outcome of our decision. Because

that appeal raises similar issues to Jones's cross-appeal here, however, the state

Page 9 of 10 court should have the first opportunity to decide Jones's claims. We therefore

remand Jones's cross-appeal and order the district court to stay and abate the

proceedings pending the outcome of Jones's direct appeal in state court.

With respect to the State's appeal in No. 09-15550 the decision of the

district court is AFFIRMED. Jones's cross-appeal in No. 09-16120 is

REMANDED with instructions.

Page 10 of 10

FILED

Jones v. Henry, Case Nos. 09-15550 and 09-16120 DEC 07 2011 Rawlinson, Circuit Judge, concurring in part: MOLLY C. DWYER, CLERK

U.S . CO U RT OF AP PE A LS

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, 130 S. Ct. 2549, 2562 (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, unexhausted.

See King v. Ryan, 564 F.3d 1133, 1138 (9th Cir. 2009). In that circumstance, I

thinµ 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 courts).

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 stay the federal proceedings pending exhaustion of Jones's cross-claims

in state court.