William J. Jones v. M.L. Smith, Warden Attorney General State of California
Docket: 99-56405
Court: Court of Appeals for the Ninth Circuit; January 18, 2001; Federal Appellate Court
In the case of William J. Jones v. M.L. Smith, the Ninth Circuit addressed whether the omission of a premeditation charge from the attempted murder information, combined with its inclusion in jury instructions, constituted a variance or an amendment. The court determined that since premeditation was a sentence-enhancing provision under California law at the time of Petitioner’s conviction, the discrepancy represented a variance that warranted harmless error review. Notably, Petitioner had actual notice of being charged with premeditated attempted murder, leading the court to conclude that any error was harmless.
Petitioner, serving a life sentence for attempted murder, had given a taxi driver, Magdy Ibrahim, a deposit and identification for a fare. After a dispute over payment upon arrival, Petitioner shot Ibrahim multiple times, resulting in Ibrahim's paralysis. The prosecution's information charged Petitioner with attempted murder without explicitly alleging premeditation. However, both sides operated under the assumption that premeditation was part of the charges, and the jury was instructed to consider whether the act was willful, deliberate, and premeditated. The jury convicted Petitioner accordingly. The case became final on January 14, 1992, when the time to file for certiorari expired.
In 1995, the Petitioner filed a state court writ of habeas corpus, claiming he was convicted of a charge not included in the information, which violated his constitutional right to be informed of the accusations against him. He also asserted ineffective assistance of counsel, arguing that his lawyers failed to identify discrepancies between the information and jury instructions. His petition was denied at multiple levels, including the California Supreme Court. In 1997, he submitted a similar habeas petition in federal court, which was denied based on a magistrate judge's report. The district court granted him a Certificate of Appealability (COA), and both the district and appellate courts had jurisdiction under 28 U.S.C. 2254 and 28 U.S.C. 1291, respectively.
The district court's denial of the habeas petition is reviewed de novo, while factual findings are reviewed for clear error. Under 28 U.S.C. 2254(d), federal courts cannot grant habeas corpus for claims adjudicated on the merits in state courts unless the state decision was contrary to established federal law or based on an unreasonable factual determination.
The district court concluded that the Petitioner failed to exhaust state remedies, as he did not present a constitutional violation claim in state court. However, the Petitioner argued that he did invoke his Sixth Amendment rights in his state court briefs, which should have preserved the issue for consideration. The Respondent claimed that the COA did not address the exhaustion issue, implying a lack of jurisdiction to review it. This argument was dismissed, as the Petitioner clearly sought a COA regarding the exhaustion determination, and the district court's granting of the COA likely overlooked the exhaustion claim, as it would be illogical to grant a COA on the merits without addressing whether the claims were exhausted.
In cases where a district court grants a Certificate of Appealability (COA) on the merits of a constitutional claim but is silent on procedural claims, it is assumed that the COA includes those procedural claims necessary for the panel to address the merits. This interpretation leads to the conclusion that both procedural and substantive rulings regarding the Sixth Amendment claim are encompassed in the COA. A merits panel may review issues previously rejected by a motions panel, as supported by relevant case law. Courts of appeals have granted COAs to habeas petitioners whose petitions were denied on procedural grounds, indicating that procedural rulings can be considered if they are prerequisites for evaluating a constitutional issue.
The State's argument that only constitutional rulings are appealable is rejected, emphasizing that a state prisoner should not be denied relief if they can demonstrate a constitutional violation alongside procedural errors by the district court. This interpretation aligns with Congress's intent in the issuance of a COA under 2253(c), which does not permit procedural errors to obstruct substantial constitutional rights on appeal. The district court's erroneous determination regarding exhaustion is now appropriately before the reviewing court.
The petitioner’s primary habeas claim revolves around the distinction between the charges in the information (attempting to murder with malice aforethought) and the jury's conviction (attempting to murder willfully, deliberately, and with premeditation). The absence of the terms "deliberately and with premeditation" is legally significant, as it differentiates first-degree murder from second-degree murder under California law, where second-degree murder lacks the willful, deliberate, and premeditated elements present in first-degree murder.
The determination of the Petitioner's claim hinges on whether the identified discrepancy is classified as a variance or an amendment. A variance occurs when trial evidence materially differs from the allegations in the information, while an amendment signifies a literal or effective change to the information's terms. If deemed a variance, it falls under the harmless error rule; if an amendment, it may be prejudicial per se. The Supreme Court's ruling in Stirone v. United States established that a constructive amendment occurs when a grand jury fails to charge an essential element of a crime, warranting reversal. Conversely, if the variation does not alter an essential element, the trial court's actions, although flawed, do not necessarily prejudice the defendant.
In Lincoln v. Sunn, the critical factor in identifying a constructive amendment is whether the introduction of a new theory alters the offense charged or limits the defendant's ability to defend. The court referenced Boothe v. Wyrick, which found no prejudice when an indictment was amended from first degree murder to felony murder, as both were not separate offenses under state law. Thus, the distinction between a constructive amendment and a variance is based on whether the crimes charged and convicted are separate offenses under state law.
This reasoning aligns with the Supreme Court's decisions, including McMillan v. Pennsylvania, which emphasized state authority in defining crimes and penalties. The Court ruled that the visible possession of a firearm could be treated as a sentencing factor rather than an offense element, indicating that the Due Process Clause does not necessitate proof of such possession beyond a reasonable doubt or a jury trial on that factor. Although McMillan did not address the necessity of including firearm possession in the information, its implications are significant for understanding the distinction between constructive amendments and variances.
All elements of a crime must be charged in an information and proven beyond a reasonable doubt, with the defendant entitled to a jury trial on those elements. McMillan established that certain sentence-increasing factors are not considered elements of a crime and thus do not require charging in an information. Lincoln clarified that when a state legislature designates a sentencing factor as merely a consideration rather than an element of a new crime, it generally negates the constitutional requirement to charge that factor. Consequently, if a sentencing factor is omitted from the information but included in jury instructions, it is treated as a variance, not a constructive amendment. At the time of the Petitioner's conviction, the California Supreme Court had not ruled on whether premeditated attempted murder and attempted murder without premeditation were distinct crimes; however, a California Court of Appeal determined they were the same offense, with premeditated attempted murder being a sentencing enhancement. The California Supreme Court later confirmed that attempted murder in the first degree is a sentencing provision, not an element of a separate crime. Under section 664, subdivision (a), the provision for life imprisonment with the possibility of parole for "willful, deliberate, and premeditated" murder attempts is a sentencing enhancement, not a distinct crime. The California Supreme Court endorsed the reasoning of the Douglas case. In this context, the omission of the premeditation charge from the Petitioner's information constituted a variance, as he was charged with attempted murder and the jury found beyond a reasonable doubt that he acted with premeditation, allowing for the maximum penalty. This discrepancy did not alter the charge or impede the Petitioner’s defense, thus it did not constitute a constructive amendment, even though the jury, rather than the judge, determined the applicability of the sentencing enhancement.
Including the premeditation charge in the information was preferable but not constitutionally required as of January 14, 1992. Since the Petitioner's direct appeal concluded, the Supreme Court has significantly changed the interpretation of relevant legal standards established in cases like McMillan and Lincoln. In 1998, the Court's ruling in Almendarez-Torres v. United States upheld a defendant's conviction, where he was indicted for re-entry after deportation under 8 U.S.C. 1326. The maximum penalty for this violation is typically two years, but can extend to twenty years if the defendant was previously deported due to aggravated felony convictions. The defendant pled guilty and admitted to prior felony convictions, yet argued that the indictment's failure to specify the reason for his deportation limited his sentence to two years. The district court sided with the Government, imposing an 85-month sentence, which was affirmed by the Fifth Circuit. The Supreme Court ruled, by a narrow margin, that the indictment did not need to include sentencing factors, determining that 1326(b)(2) was a sentencing enhancement rather than an element of the crime. However, two terms later, in Apprendi v. New Jersey, the Court questioned the validity of Almendarez-Torres, ruling that any fact increasing a penalty beyond the statutory maximum must be proven to a jury beyond a reasonable doubt, limiting McMillan's applicability and suggesting that Almendarez-Torres may have been incorrectly decided.
Apprendi emphasizes the necessity for the government to include facts that justify increased penalties within the indictment and prove them to a jury beyond a reasonable doubt, thereby broadening the definition of discrepancies that constitute constructive amendments. This challenges California's previous treatment of premeditation as a mere sentencing factor, as determined in Bright. Despite these implications, the ability of the Petitioner to benefit from Apprendi is hindered by the Teague non-retroactivity principle, which limits the application of new rules established after a conviction becomes final. Teague outlines a three-step analysis to determine if a new rule can be applied retroactively: (1) identifying when the conviction became final, (2) assessing the legal landscape at that time, and (3) determining if the new rule fits within specific exceptions to non-retroactivity. Petitioner's conviction was finalized on January 14, 1992, rendering the application of Apprendi inapplicable for collateral review due to its establishment of a new rule that was not dictated by prior precedent.
On January 14, 1992, the legal landscape regarding the constitutionality of the Petitioner's conviction was primarily shaped by the precedents set in McMillan and Lincoln, with Almendarez-Torres and Apprendi not yet influencing the context. Consequently, a state court at that time would not have deemed Petitioner's conviction unconstitutional based on existing case law, indicating that the legal principles were unsettled. In evaluating the applicability of the new rule from Apprendi under the third prong of Teague, the court determined that the first exception regarding state authority to prosecute did not apply, as the state clearly had the power to charge Petitioner with attempted murder. The second exception, which pertains to "watershed rules of criminal procedure," was also found inapplicable, as the Apprendi rule did not meet the stringent criteria of being essential for fundamental fairness in a trial. Although defendants have the right to be informed of accusations, the court noted that a trial could still be fundamentally fair even if the written information was flawed, especially when the defendant was aware of the accusations and potential sentences. Thus, the court declined to retroactively apply the Apprendi rule to the discrepancies between the information provided and jury instructions in this case.
Petitioner cannot take advantage of recent legal changes that occurred after his conviction's finality. The omitted premeditation charge is deemed a sentencing factor rather than an element of the offense, allowing the discrepancy between the information and jury instruction to be analyzed as a variance. A variance only warrants reversal if the defendant suffers prejudice, which was not the case here. The record indicates that Petitioner was aware prior to trial that the prosecution intended to prove premeditated attempted murder. Both Petitioner and his counsel believed he faced premeditated charges, and the issue of premeditation was actively contested during the trial. The prosecution and trial judge also operated under the assumption that premeditation was included in the charges. Given these circumstances, Petitioner experienced no prejudice, deeming the error harmless.
Petitioner argues that knowledge of the actual charge would have allowed him to plead guilty to avoid a life sentence, suggesting prejudice. However, the prosecution was not required to accept such a plea, especially since they could amend the information to include the premeditated charge. Under California Penal Code § 1009 and relevant federal rules, the prosecution could amend the information without court permission at any time before the defendant pleads, provided the amendment did not affect substantial rights. A guilty plea must be knowing and voluntary for both the defendant and prosecution. Petitioner's assertion that he could exploit the prosecution's error is unsupported by legal precedent. Any reasonable trial court would likely permit the prosecution to amend the charge, making Petitioner's speculation about judicial discretion unconvincing. Thus, the omission of premeditation constitutes a variance that did not prejudice Petitioner, resulting in no reversible error.
Strickland v. Washington established a two-part test for claims of ineffective assistance of counsel, requiring a defendant to demonstrate both deficient performance by counsel and resulting prejudice to the defense. In this case, the district court assumed that trial counsel's performance was deficient but concluded that the petitioner failed to meet the prejudice requirement. The oversight concerning a discrepancy between the information and jury instructions did not prejudice the petitioner, as he was aware that premeditation would be argued at trial and had a defense prepared for it. Additionally, if the petitioner had recognized the error and sought to plead guilty to avoid a life sentence, the prosecutor would have corrected the information under California Penal Code section 1009, as premeditation was a sentencing factor rather than an element of the offense. The trial court would have permitted such an amendment, as it believed the petitioner was charged with premeditated attempted murder. Consequently, without showing prejudice from counsel's oversight, the claim for ineffective assistance of counsel was denied. The petition was ultimately denied, and the California Supreme Court's interpretation regarding the necessity of premeditation in the information was acknowledged, affirming that it was not a constitutional requirement for attempted murder charges.
Respondent acknowledged the potential implications of the Apprendi decision on the case, particularly regarding the California Supreme Court's finding in Bright that premeditation and deliberation allegations are sentencing factors. The Teague plurality opinion, initially supported by only four justices, is now treated as a majority opinion, indicating a shift in precedential weight. The Apprendi ruling highlighted a divide among justices on its character: the majority viewed it as a restoration of historical jurisprudence, while dissenters considered it a significant constitutional change. Justice Thomas, who previously supported the Almendarez-Torres decision, later distanced himself from that position in Apprendi, suggesting a reversal of the McMillan line of cases. Under Teague's retroactivity analysis, Apprendi is classified as a new rule because it redefined existing precedents at the time of the Petitioner’s conviction. Furthermore, the Respondent concedes that the Petitioner exhausted state remedies regarding the ineffective assistance claim. However, the alleged ineffective assistance during direct appeal concerning a discrepancy in information/conviction did not result in prejudice, as the discrepancy was not sufficient for reversal; thus, failing to raise a meritless argument does not constitute ineffective assistance.
