Opinion
NOT TO BE PUBLISHED
Super. Ct. No. 03CVCV0148798
MORRISON, J.
After his criminal convictions and sentence were affirmed in full, plaintiff Mychael Tyrone Shannon sued defendant Gregory Marshall, his appointed appellate attorney, for legal malpractice in failing to raise numerous issues on appeal. Shannon appeals from a judgment entered after the trial court granted Marshall’s motion for summary judgment.
This is Shannon’s second appeal. In our prior unpublished opinion, Shannon v. Marshall (July 29, 2005, C046874) [nonpub. opn.], we held that the trial court erred in granting Marshall’s motion for summary judgment and failing to stay the proceedings while Shannon was pursuing collateral habeas corpus relief. One year later, the trial court found that Shannon “has not timely and diligently pursued postconviction remedies where he has not demonstrated that any claims currently pending in any federal habeas corpus proceeding relate to a claim of factual innocence,” and ordered that the stay of the legal malpractice proceedings be lifted and that the previous order granting Marshall’s motion for summary judgment be reinstated.
The sole issue on appeal here is whether the trial court erred in lifting its stay of the malpractice proceedings while Shannon’s collateral habeas proceeding is still pending. We conclude that the trial court erred in lifting the stay prematurely. Accordingly, we shall reverse the judgment.
BACKGROUND
A. The Underlying Criminal Proceeding and Civil Malpractice Action
The following facts are taken verbatim from this court’s July 29, 2005, unpublished opinion in Shannon’s first appeal:
“A jury convicted Shannon of two counts of forcible rape (Pen. Code, § 261, subd. (a)(2)) and two counts of forcible oral copulation (Pen. Code, § 288a, subd. (c)), and found he had suffered two strikes (Pen. Code, §§ 667, subds. (b)-(i), 1170.12, subd. (c)). The trial court sentenced him to 100 years to life in state prison.”
“Marshall, a panel attorney for Appellate Defenders, Inc., was appointed to represent Shannon on appeal from his criminal convictions. Marshall filed an opening brief that failed to include all issues Shannon wanted raised because Marshall believed those issues were not arguable, had no evidentiary support, or went to matters outside the appellate record.
“In an unpublished opinion dated May 13, 2002, the Fourth District Court of Appeal, Division Two, affirmed the judgment. In propria persona, Shannon filed a petition for review in the California Supreme Court, which was denied. Shannon also filed four petitions for writ of habeas corpus in the Fourth District Court of Appeal, Division Two, and four petitions for writ of habeas corpus in the California Supreme Court, all of which were denied.
“In April 2003, Shannon filed a petition for writ of habeas corpus in the United States District Court [Shannon v. Alameda, United States District Court for the Central District of California, case No. 5:03-cv-00375-RGK]. The record on appeal does not contain the ruling on the petition. [Fn. omitted.]
“In May 2003, Shannon filed a legal malpractice complaint in the Shasta County Superior Court against Marshall. Marshall moved for summary judgment on the grounds he did not owe Shannon a duty to brief every issue Shannon wanted raised and Shannon had not established in a postconviction judicial determination he was factually innocent of the crimes, a condition precedent to an actionable malpractice claim. Shannon responded, among other things, the court should stay his malpractice claim while he pursued postconviction remedies in the federal courts.
“The trial court granted Marshall’s motion for summary judgment, reasoning Marshall had no duty to argue the issues that were the basis of Shannon’s allegations of legal malpractice and Shannon had not been found [] innocent of the crimes. It denied Shannon’s request for a stay, reasoning Shannon ‘has had a number of post appeal writs denied and has not established any probability a finding of [] innocence will be made.’ The trial court then entered judgment in favor of Marshall.”
B. Our Unpublished Opinion in Shannon’s First Appeal
Citing the California Supreme Court decision in Coscia v. McKenna & Cuneo (2001) 25 Cal.4th 1194, we observed that when a former criminal defendant sues his attorney for malpractice, the former client’s innocence of the underlying criminal charges is a necessary element of the malpractice action: a former criminal defendant “must obtain postconviction relief in the form of a final disposition of the underlying criminal case -- for example, by acquittal after retrial, reversal on appeal with directions to dismiss the charges, reversal followed by the People’s refusal to continue the prosecution, or a grant of habeas corpus relief -- as a prerequisite to proving actual innocence in a malpractice action against former criminal defense counsel.” (Id. at p. 1205.) Accordingly, we noted, Coscia v. McKenna & Cuneo, supra, at pages 1210-1211 concluded that a trial court “should stay the malpractice action during the period in which such a plaintiff timely and diligently pursues postconviction remedies.”
Because Shannon was then “still in the process of pursuing postconviction remedies,” we ordered the trial court to stay the proceedings in the malpractice action “during the period in which Shannon timely and diligently is pursuing his post conviction remedies.”
C. Trial Court’s Reinstatement of Summary Judgment in Favor of Marshall
The record before us on this appeal shows that the remittitur in the malpractice action was returned on September 29, 2005. In the 10 months that followed, the court conducted periodic conferences on the status of Shannon’s pending federal habeas proceeding. None of the conferences were reported.
Conferences (which Shannon attended by telephone) occurred on December 19, 2005, and February 6, 2006 (the remaining date references are to events in 2006); at the latter, Marshall reported that a traverse had been filed in the pending federal habeas proceeding, but “no action ha[d] been taken yet.”
At the next status conference on May 8 (which Shannon did not attend), the court ordered him to “provide points and authorities supporting his position that issues in this case have been raised in any Federal cases.”
Shannon filed a document entitled “Points and Authorities Supporting Issues in this Case Have Been Raised in Federal Court,” which incorporated a declaration he had filed in the pending federal habeas proceeding to “confirm[] that issues were raised [in the federal proceeding] claiming deficient performance by defendant Marshall.” Shannon’s declaration states that after Marshall was appointed appellate counsel, he “generated a letter to me that he had discovered about eight arguable issues on the appeal. Eventually, counsel Marshall augmented the record to include[] the jury voir dire based on his belief it ‘will’ be filed on appeal that I was denied a constitutional right to a representative cross-section of the community during the jury composition. However, [later] counsel Marshall generated a letter to me along with the opening brief . . . stating, ‘You will note there are only three issues argued here.’ Counsel Marshall did not include the jury composition violation in the brief. The letter went on to say that I could pursue issues by way of habeas corpus. [Citation.] Not only was counsel Marshall incompetent for not warning me about the barrier of a possible Dixon rule bar because issues would not be included in the brief, counsel Marshall’s incompetence prejudiced me because, but for his deficient failure to file issues in the brief I was deprived of the effective assistance of counsel on appeal.” (Paragraph divisions omitted.)
The declaration is not limited, however, to the recitation of his claims against attorney Marshall: it also reflects his contentions (1) he was prejudiced by trial counsel’s failure to provide Shannon with copies of work product and discovery-related materials after he was relieved as counsel (including information supporting his claim of third-party culpability), and (2) trial counsel sabotaged Shannon’s case in retaliation for his having made charges of misconduct and brought a civil action against trial counsel.
At the July 17 status conference in this case (which Shannon did not attend), the court reviewed Shannon’s “Points and Authorities Supporting Issues in this Case Have Been Raised in Federal Court” and ordered Marshall’s counsel “to prepare an order including a finding that the plaintiff is no longer timely and diligently seeking remedies in this matter.”
Thereafter, the court entered the following order:
“1. [Shannon] has not timely and diligently pursued postconviction remedies where he has not demonstrated that any claims currently pending in any federal habeas corpus proceeding relate to a claim of factual innocence, as provided in the California Supreme Court holding of Coscia v. McKenna & Cuneo (2001) 25 Cal.4th 1194, 1210-1211.
“2. The claims against [Marshall] which [Shannon] asserts are pending in the federal habeas corpus proceeding are claims that defendant Marshall failed to raise all the issues [Shannon] desired to have raised on direct appeal. Even if [Shannon] were to prevail in his federal habeas corpus proceeding, the result would not be a finding of factual innocence as required by the holding of Coscia v. McKenna & Cuneo, supra.
“3. A claim against an appointed criminal appellate attorney for failure to raise all the issues [Shannon] wished to have raised on direct appeal does not give rise to liability for legal malpractice because appointed appellate counsel has no duty to argue every issue a client wishes to have raised. (Redante v. Yockelson (2003) 112 Cal.App.4th 1351, 1356-1357.)
“4. [Shannon] has not demonstrated that the issues omitted by [Marshall] were ‘arguable.’
“5. Even if [Shannon] is completely successful in his currently pending federal habeas corpus proceeding, there is no legal theory upon which he could be entitled to judgment in a legal malpractice action because he has not pursued a postconviction claim which would result in a factual determination of his innocence.” The court lifted the stay, and reinstated its judgment in Marshall’s favor.
Shannon moved unsuccessfully thereafter to set aside the judgment pursuant to Code of Civil Procedure sections 473 and 663. He argued that the trial court’s action was incorrect based on uncontroverted facts, and inconsistent with this court’s prior opinion, inasmuch as he is still pursuing postconviction remedies based on claims of ineffective assistance of counsel.
DISCUSSION
“The failure to provide competent representation in a civil or criminal case may be the basis for civil liability under a theory of professional negligence.” (Coscia v. McKenna & Cuneo, supra, 25 Cal.4th at p. 1199.) The Supreme Court has held, however, that when a criminal defendant sues his or her attorney for legal malpractice, actual innocence of the underlying criminal charges is an element of the malpractice cause of action. (Wiley v. County of San Diego (1998) 19 Cal.4th 532, 535, 537 (Wiley).) In order to establish actual innocence, a convicted criminal defendant “must obtain reversal of his or her conviction, or other exoneration by postconviction relief[.]” (Coscia, supra, at p. 1201; see also Redante v. Yockelson (2003) 112 Cal.App.4th 1351, 1357-1358 [criminal defendant who sued his former criminal appellate attorney for malpractice could not prevail where he did not establish his actual innocence].)
The actual innocence requirement finds support in several public policy considerations. “First, ‘“‘[p]ermitting a convicted criminal to pursue a legal malpractice claim without requiring proof of innocence would allow the criminal to profit by his own fraud, or to take advantage of his own wrong, or to found [a] claim upon his iniquity, or to acquire property by his own crime.’”’ [¶] Second, ‘“allowing civil recovery for convicts impermissibly shifts responsibility for the crime away from the convict.”’ [Citation.] A plaintiff convicted of an offense should bear sole responsibility for the consequences of his or her criminal acts; ‘“[a]ny subsequent negligent conduct by a plaintiff’s attorney is superseded by the greater culpability of the plaintiff’s criminal conduct. [Citation.]” [Citation.]’ [Citation.] ‘The fact that nonnegligent counsel “could have done better” may warrant postconviction relief, but it does not translate into civil damages, which are intended to make the plaintiff whole.’ [Citation.] ‘Only an innocent person wrongly convicted due to inadequate representation has suffered a compensable injury because in that situation the nexus between the malpractice and palpable harm is sufficient to warrant a civil action, however inadequate, to redress the loss. [Citation.]’ [Citation.] [¶] Third, guilty defendants have an adequate remedy in the form of postconviction relief for ineffective assistance of counsel. [Citation.] ‘Not only does the [United States] Constitution guarantee this right [under the Sixth Amendment], any lapse can be rectified through an array of postconviction remedies, including appeal and habeas corpus.’ [Citation.] Moreover, avoiding a procedure that would involve retrying criminal prosecutions in tort actions for malpractice is consistent with ‘“‘a strong judicial policy against the creation of two conflicting resolutions arising out of the same or identical transaction.’”’” (Coscia, supra, 25 Cal.4th at p. 1200; Wiley, supra, 19 Cal.4th at pp. 537, 542-543.)
Here, the parties do not dispute that Shannon’s federal habeas proceedings are still pending. Shannon contends the Coscia stay should remain in place so long as he is “pursuing his postconviction remedies[.]” The trial court found that, notwithstanding the existence of a pending habeas matter, that he “has not timely and diligently pursued postconviction remedies” and he has failed to “demonstrate[] that any claims currently pending in any federal habeas corpus proceeding relate a claim of factual innocence, as provided in the California Supreme Court holding of Coscia v. McKenna & Cuneo (2001) 25 Cal.4th 1194, 1210-1211.”
We have found no cases interpreting Coscia’s requirement of seeking postconviction relief that is timely and diligent. However, on the question of timeliness, we note that Shannon filed his federal habeas petition in April 2003, nearly one year after his convictions in the underlying crimes were affirmed on appeal, and one month before filing the legal malpractice complaint that initiated this action. In the interim, Shannon filed four petitions for writs of habeas corpus in the Fourth District Court of Appeal and four habeas petitions in the California Supreme Court, all of which were denied. The record does not establish that Shannon failed to seek writ relief in a timely fashion. (See Adoption of Alexander S. (1988) 44 Cal.3d 857, 865; In re Clark (1993) 5 Cal.4th 750, 782.)
Nor does the record establish that Shannon has failed to diligently pursue his postconviction remedies. Having taken judicial notice of the docket in Shannon’s pending federal habeas proceeding, we note that he filed a first amended habeas petition in May 2003, and a second amended habeas petition in July 2003. Motions by the director of the Department of Corrections and Rehabilitation to dismiss the petition, including supplemental motions to dismiss, together with Shannon’s opposition, supplemental opposition and motion for order granting library access occupies the entries between September 2003 and October 2004. Following the Supreme Court’s then recent opinion in Blakely v. Washington (2004) 542 U.S. 296 [159 L.Ed.2d 403), the court denied without prejudice Shannon’s request to hold the petition in abeyance, and allowed him instead to withdraw his unexhausted claim.
The director finally filed an answer to the second amended petition for a writ of habeas corpus in May 2005; after several requests for extensions of time, Shannon finally filed a traverse in January 2006. In May 2006, Shannon sought leave to amend the petition to include some previously withdrawn claims; the court initially granted the request, but then granted reconsideration and denied his request in October 2006. The entries between November 2006 and June 2007 (the last entry on the docket in our record on appeal) pertain to Shannon’s petitions for the appointment of guardian ad litem or counsel.
The trial court nonetheless found that Shannon “has not timely and diligently pursued postconviction remedies” because he “has not demonstrated that any claims currently pending in any federal habeas corpus proceeding relate a claim of factual innocence, as provided in the California Supreme Court holding of Coscia . . . .”
Coscia cannot be read as narrowly as the trial court suggests. Rather, it held that the “prerequisite to proving actual innocence in a malpractice action against former criminal defense counsel” may be obtained “in the form of a final disposition of the underlying criminal case -- for example, by acquittal after retrial, reversal on appeal with directions to dismiss the charges, reversal followed by the People’s refusal to continue the prosecution, or a grant of habeas corpus relief . . . .” (Coscia, supra, 25 Cal.4th at p. 1205, italics added.) Coscia does not require, as the trial court concluded here, that a convicted criminal defendant be pursuing a claim by way of habeas plea that “relate[s] to a claim of factual innocence” to warrant holding summary judgment of his attorney malpractice action at bay: it requires only that he diligently pursues claims which could lead to his being granted a new trial. Here, if successful in his habeas claim related to performance by trial counsel, Shannon would be entitled to a new trial.
Accordingly, we find the trial court abused its discretion in specifically finding that Shannon did not timely and diligently pursue postconviction relief, according to the dictates of Coscia, supra, 25 Cal.4th 1194. The record does not establish Shannon has been derelict in seeking postconviction relief. And, so long as his federal habeas proceeding is pending, there exists a theoretical chance of success in obtaining a retrial, which cannot be completely foreclosed unless, and until, the district court denies the petition and Shannon exhausts his federal appeals.
DISPOSITION
The judgment is reversed. The trial court is ordered to stay the proceedings during the period in which Shannon timely and diligently is pursuing his postconviction remedies. Shannon shall recover his costs on appeal pursuant to California Rules of Court, rule 8.278(a)(1).
We concur: BLEASE, Acting P.J., BUTZ, J.