From Casetext: Smarter Legal Research

In re Downing

COURT OF APPEAL OF THE STATE OF CALIFORNIA SECOND APPELLATE DISTRICT DIVISION FIVE
Sep 13, 2012
B120629 (Cal. Ct. App. Sep. 13, 2012)

Opinion

B120629

09-13-2012

In re PAUL DOWNING on Habeas Corpus.

California Appellate Project, Jonathan B. Steiner and Ann Krausz for Petitioner. Kamala D. Harris, Attorney General of California, Dane R. Gillette, Chief Assistant Attorney General, Lance E. Winters, Assistant Attorney General, Keith H. Borjon and Jaime L. Fuster, Deputy Attorneys General, for Respondent.


NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

(Super. Ct. No. PA024412)


OPINION

ORIGINAL PROCEEDING. Petition for writ of habeas corpus. Petition granted.

California Appellate Project, Jonathan B. Steiner and Ann Krausz for Petitioner.

Kamala D. Harris, Attorney General of California, Dane R. Gillette, Chief Assistant Attorney General, Lance E. Winters, Assistant Attorney General, Keith H. Borjon and Jaime L. Fuster, Deputy Attorneys General, for Respondent.

Paul Downing filed a petition for writ of habeas corpus in the California Supreme Court. He sought to reinstate his 1998 appeal, which had been dismissed after his attorney failed to timely file an opening brief. The California Supreme Court issued an order to show cause on the petition, returnable in this court, as to why the remittitur should not be recalled, the order dismissing petitioner's appeal vacated, and his appeal reinstated. After considering the petition, the return, the traverse, and counsel's argument, we recall the remittitur, vacate our order dismissing the appeal, and restore the appeal to the active calendar.

FACTS AND PROCEDURAL HISTORY

On January 28, 1998, Paul Downing was found guilty in a court trial of one felony count of making terrorist threats in violation of Penal Code section 422. The court also found that Downing had four prior serious or violent felony convictions within the meaning of Penal Code sections 667, subdivisions (b) through (i), and 1170.12, subdivisions (a) through (d). He was sentenced to 25 to life, plus one year for a prior prison term pursuant to Penal Code section 667.5, subdivision (b). Downing's trial attorney, Ken Carroll, agreed to undertake an appeal on Downing's behalf. Carroll filed a timely notice of appeal but failed to prosecute the appeal thereafter. The appeal was dismissed. Remittitur issued on December 24, 1998.

Downing declares that Carroll did not have much communication with him after sentencing, but he did not worry because he understood appeals took a long time. Sometime in 2000, Downing tried to reach Carroll but could not contact him. Downing asked his mother to help, and she eventually learned that Carroll had died in May 2000. Downing then asked his mother to investigate how he could reinstate his appeal. She contacted an attorney, the superior court, and the state bar. However, she was consistently told it was too late to do anything and was not referred to other sources of assistance. In 2002, Downing, with the help of other inmates, filed his own petition for a writ of habeas corpus. That petition was denied on August 25, 2002, because Downing failed to explain his delay in seeking relief.

We take judicial notice of the order in case No. B160790, which contains Downing's 2002 petition for writ of habeas corpus.

In December 2003, Downing sent a letter to the Los Angeles County Superior Court seeking copies of documents from his case and transcripts, but his request was denied. In February 2004, Downing sent a second letter to the superior court, but his request was again denied. In 2007, Downing contacted another attorney, as well as the Innocence Project, but was told it was too late to reinstate his appeal. In 2008, another inmate suggested that Downing contact the California Appellate Project. The California Appellate Project agreed to take Downing's case.

In addition to the facts stated above there are unsubstantiated allegations in the petition that: Downing had attempted to contact the American Civil Liberties Union for assistance but his request was denied on October 28, 2002; on December 31, 2002, Downing was granted assistance in the law library by the California Men's Colony; and Downing's mother again contacted an attorney for help in 2007, as well as the public defender's office, but was unsuccessful. The parties do not address those allegations in their return and traverse so we do not consider them to be at issue and do not rely upon them here.

On June 26, 2009, the California Appellate Project filed a motion to recall the remittitur on Downing's behalf based on Carroll's ineffectiveness. The motion was denied because Downing failed to demonstrate adequate diligence in seeking relief. On May 28, 2010, the California Appellate Project filed a second motion to recall the remittitur. It supplemented its arguments in the first motion with medical records regarding Downing's mental state through January 21, 2004.

The records showed that in December 1999, while Carroll was supposedly still pursuing Downing's appeal, the Department of Corrections had transferred petitioner to Atascadero State Hospital for mental health treatment pursuant to Penal Code section 2684. Downing remained at Atascadero State Hospital until July 2001. A 2001 evaluation indicated that Downing was initially diagnosed with schizoaffective disorder and borderline intellectual functioning. By July 5, 2001, Downing's psychiatric condition had improved, and he was cooperative in taking medications to reduce visual and auditory hallucinations. Downing was cleared for return to the general prison population with continued psychiatric and medical attention in an outpatient program.

In a January 21, 2004 evaluation, a psychologist found Downing to have continuing depression and persecutory delusions, but adequate coping skills. The motion to recall remittitur alleged Downing's medications are known to cause numerous side effects, including drowsiness and confusion as noted on the National Institutes of Health's website. The implication was that Downing would have been suffering from such side effects as long as he took the medications. On June 25, 2010, the second recall motion was denied because Downing failed to exercise reasonable diligence in pursuing his remedy.

On June 9, 2011, Downing filed the instant petition for writ of habeas corpus in the California Supreme Court. He asserted he received ineffective assistance of counsel and supported his petition with a copy of the briefing and exhibits submitted in the second motion to recall the remittitur, supplemented by a list of his attempts to gain assistance and a letter to the court about his underlying crimes and his experience in prison. On May 23, 2012, the California Supreme Court issued an order to show cause why the relief prayed for in the petition should not be granted, returnable in this court. A return and traverse were filed in due course.

DISCUSSION

The California Supreme Court ordered the director of the Department of Corrections and Rehabilitation to show cause in this court why the remittitur on Downing's appeal should not be recalled, dismissal of the appeal vacated, and the appeal reinstated. In In re Serrano (1995) 10 Cal.4th 447, 454-455 (Serrano), the Supreme Court explained that when it issues such a direction it has made a preliminary determination that the petitioner's prima facie statement of facts, if established, would entitle the petitioner to relief. The return to the petition and the petitioner's traverse, with their admissions and denials of the factual allegations, frame the issues that must be decided in order to resolve the matter. (Id. at p. 455.)

In this case, the return and traverse largely agree on the facts underlying the parties' dispute. Respondent admits that Downing's appeal was dismissed on account of Carroll's failure to file an opening brief. Respondent further agrees or does not dispute that Downing had mental health issues in the years after his conviction and was prescribed numerous medications, as reflected in the medical records. Both parties agree or do not dispute that Downing or his mother made the above-described attempts over the years to obtain assistance in having Downing's appeal reinstated, or in otherwise challenging his conviction. The outstanding question is whether Downing's situation was such that he could not have exercised greater diligence in pursuing the appropriate remedy of having the remittitur recalled and his appeal reinstated. Because that requires a conclusion drawn from the agreed upon facts, we can resolve the matter on the record before us and do not require a referee to resolve any factual issues. (See Serrano, supra, 10 Cal.4th at p. 455; People v. Duvall (1995) 9 Cal.4th 464, 478.)

There is a factual issue as to whether Downing actually suffered from commonly recognized side effects of his medications and whether those side effects played a role in his ability to pursue relief. However, because we find Downing's efforts to obtain relief were sufficient even if he did not suffer from any side effects, the issue is not material. (People v. Duvall, supra, 9 Cal.4th at p. 478.)

The record shows that Downing relied on Carroll to pursue his appeal in a competent manner. Once he grew suspicious of the length of time his appeal was taking, Downing enlisted his mother's assistance in contacting Carroll. Upon learning of Carroll's death and dismissal of the appeal, Downing and his mother searched for assistance in having the appeal reinstated. All the while, Downing was receiving treatment for mental health issues at Atascadero State Hospital. Once Downing was returned to the general prison population, he continued to receive mental health treatment as an outpatient. He also continued to seek some sort of relief from his conviction. With the assistance of other inmates, Downing filed a habeas corpus petition and repeatedly wrote to the superior court, searching for information that would enable him to obtain relief. When unsuccessful there, Downing contacted an attorney and wrote to the Innocence Project in an effort to obtain assistance. When he was finally referred to the California Appellate Project, Downing followed up on that lead as well. He cooperated with the California Appellate Project, and ultimately won an order to show cause from the California Supreme Court. We hold that Downing's decade's worth of persistence in seeking review of his conviction, despite his mental difficulties during that time, describes sufficient diligence to warrant the relief sought by the petition.

Respondent argues that those very efforts demonstrate that Downing had the rudimentary skills necessary to pursue relief earlier. It is true that Downing was repeatedly able to raise the issue of his dismissed appeal, and either file inquiries on his own behalf or seek assistance from others to do so. But it was Downing's consistent effort to bring the matter to the attention of the court in some cognizable form that makes the difference. The now undisputed facts show that Downing never gave up his pursuit and ultimately found an advocate for his cause, despite setbacks that included this court's prior rulings. In the end, Downing persuaded the California Supreme Court that his appeal should be reinstated based on the facts alleged in his petition.

The decision in In re Grunau (2008) 169 Cal.App.4th 997 (Grunau) is instructive. In that case, an attorney misled a defendant and his father, who was assisting the defendant, as to the state of the defendant's appeal. Though the appeal had been dismissed after the attorney failed to file an opening brief, the attorney assured the father for years that the matter was still pending and was simply delayed for various reasons. (Id. at pp. 1000-1001, 1006.) After seven years, the father contacted the court of appeal directly and learned the appeal had been dismissed. When the father's own efforts to research a remedy were fruitless, he again contacted the court of appeal and was referred to an assistance program which helped him file a motion to recall the remittitur. (Id. at pp. 1001, 1007.)

The motion was initially denied, but the California Supreme Court issued an order to show cause on a petition for writ of habeas corpus filed there which raised the same issue. The Supreme Court directed corrections officials to show cause before the Grunau court why the remittitur should not be recalled, dismissal of the appeal vacated, and the appeal reinstated. (Id. at pp. 1001-1002.) Upon reconsidering the evidence, the Grunau court found the defendant's efforts to pursue his appellate rights were reasonable. (Id. at pp. 1000, 1007.) It noted that it is a daunting task for laypersons to "penetrate the esoteric world of appellate procedure." Given the assurances defendant and his father were receiving from the attorney and their lack of success in independent inquiries, the court excused any delay in the defendant's failure to realize his appeal had been dismissed or to seek relief earlier. (Id. at p. 1007.)

The Grunau decision is in line with Serrano. Serrano involved yet another defendant's attempt to reinstate his appeal after his retained counsel failed to file an opening brief, resulting in dismissal. In fact, counsel had failed to file a substitution of attorney with the appellate court, so the court considered the defendant to be acting in pro per and sent all notices about the case to the defendant. Though defendant's niece had paid the attorney and tried to follow up with him over the course of a year, it was not until the defendant was transferred and the niece received a box of his belongings that she discovered a notice of dismissal among the defendant's papers. The niece immediately sought assistance from the attorney, only to find that he had sold his practice. The attorney who purchased the practice helped the niece obtain new representation, and the new attorney filed a motion to recall the remittitur. When that was denied, the new attorney filed a petition for writ of habeas corpus based on the ineffective assistance of counsel. (Serrano, supra, 10 Cal.4th at pp. 451-453.)

After a protracted procedural journey, the court of appeal denied the habeas petition because it found the defendant failed to exercise due diligence in seeking relief. (Serrano, supra, 10 Cal.4th at pp. 453-454.) The Serrano court reversed. It found the "equities" of the defendant's situation warranted an order recalling the remittitur, vacating the dismissal, and reinstating the appeal. (Id. at pp. 454, 457-458.) It noted the appeal was dismissed due to the attorney's failure to prosecute it as agreed. Once the dismissal was discovered, the defendant's niece acted promptly to have the defendant's appeal reinstated. (Id. at pp. 453, 457.) Moreover, California has a policy of favoring resolution of appeals on their merits, rather than on a procedural default. (Id. at p. 458; see also In re Martin (1962) 58 Cal.2d 133, 136-137, 139.) Given the circumstances of the case, the California Supreme Court held that the defendant was entitled to the reinstatement of his appeal. (Serrano at p. 458.)

The People allege that even if Downing has shown sufficient diligence, it has been prejudiced by the delay between the 1998 dismissal of the appeal and the 2009 filing of the first motion to recall the remittitur. It asserts that prejudice "militates against granting relief." Notably, Downing does not dispute that allegation in his traverse. However, the eleven year delay described by the respondent is not substantially different than the almost eight year delay present in Grunau. (Grunau, supra, 169 Cal.App.4th at p. 1001.) The court there found that even a delay of eight years may not bar an order recalling the remittitur. (Id. at p. 1007.) The equities are in Downing's favor, as he persisted in seeking to vindicate his appellate rights despite repeated setbacks.

DISPOSITION

The petition for writ of habeas corpus is granted. The remittitur issued on December 24, 1998, is recalled. The dismissal order filed October 19, 1998, is vacated. Downing's appeal is hereby reinstated to the active calendar. The California Appellate Project is directed to assign counsel to represent defendant in further appellate proceedings. Downing's opening brief is due 30 days after this opinion becomes final.

FERNS, J. We concur:

Judge of the Los Angeles Superior Court, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.
--------

MOSK, Acting P.J.

KRIEGLER, J.


Summaries of

In re Downing

COURT OF APPEAL OF THE STATE OF CALIFORNIA SECOND APPELLATE DISTRICT DIVISION FIVE
Sep 13, 2012
B120629 (Cal. Ct. App. Sep. 13, 2012)
Case details for

In re Downing

Case Details

Full title:In re PAUL DOWNING on Habeas Corpus.

Court:COURT OF APPEAL OF THE STATE OF CALIFORNIA SECOND APPELLATE DISTRICT DIVISION FIVE

Date published: Sep 13, 2012

Citations

B120629 (Cal. Ct. App. Sep. 13, 2012)