Summary
denying habeas relief where petitioner claimed he was deprived his constitutional rights where trial court gave oral instructions on duress defense but failed to provide jury written instructions on duress defense despite emphasizing importance of written instructions because the court's failure to provide written instruction did not so infect the entire trial thereby violating petitioner's due process rights
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No. 08-56880.
Argued and Submitted February 5, 2010.
Filed February 26, 2010.
Steven Alan Feldman, Feldman Feldman, Uniondale, NY, for Petitioner-Appellant.
Keith Williams, pro se.
Attorney General for the State of California, Esquire, AGCA — Office of the California Attorney General, San Diego, CA, Christopher Beesley, Deputy Attorney General, CAAG — San Diego, San Diego, CA, for Respondent-Appellee.
Appeal from the United States District Court for the Southern District of California, Napoleon A. Jones, District Judge, Presiding. D.C. No. 3:05-cv-02150-J-CAB.
Before: SCHROEDER, FISHER, and N.R. SMITH, Circuit Judges.
MEMORANDUM
This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3.
1. Williams claims that he was deprived his constitutional right to due process when, despite giving oral instructions regarding the defense of duress, the district court failed to provide the jury with written jury instructions on the defense of duress while emphasizing the importance of the written instructions. We disagree. "An omission, or an incomplete instruction, is less likely to be prejudicial than a misstatement of the law." Henderson v. Kibbe, 431 U.S. 145, 155, 97 S.Ct. 1730, 52 L.Ed.2d 203 (1977). The court's failure to provide a written instruction on the defense of duress did not "`so infect[] the entire trial that the resulting conviction violate[d] due process.'" Estelle v. McGuire, 502 U.S. 62, 72, 112 S.Ct. 475, 116 L.Ed.2d 385 (1991) (quoting Cupp v. Naughten, 414 U.S. 141, 147, 94 S.Ct. 396, 38 L.Ed.2d 368 (1973)).
2. Williams claims that his amended habeas claims should have been heard by the district court, because the motions to recall the remittitur that he filed in the California Court of Appeal and California Supreme Court had tolled the statute of limitations, pursuant to 28 U.S.C. § 2244(d)(2). "An application to recall the remittitur is a unique California post-conviction remedy whereby the petitioner asks the Court of Appeal or Supreme Court to reassert its jurisdiction over a case after it has relinquished that jurisdiction by issuing a remittitur following the final determination of the appeal." Hayward v. Stone, 496 F.2d 844, 845 (9th Cir. 1974); see also Gallenkamp v. Superior Court, 221 Cal.App.3d 1, 270 Cal.Rptr. 346, 349-50 (1990).
A motion to recall the remittitur can reinstate a direct appeal. People v. Mutch, 4 Cal.3d 389, 93 Cal.Rptr. 721, 482 P.2d 633, 637 (1971). However, a motion to recall the remittitur can also act as a habeas petition. Id. Thus, depending on the claims raised, a motion to recall the remittitur may serve as a habeas petition, thus tolling the statute of limitations for filing federal habeas claims. 28 U.S.C. § 2244(d)(2).
We therefore AFFIRM IN PART, REVERSE IN PART, and REMAND for a determination as to whether the claims in the motions to recall the remittitur are such that the motions should be treated as state habeas petitions. The California courts have permitted recall of the remittitur to function equivalently to a writ — or in its place — when a petitioner has alleged ineffective assistance of appellate counsel, see In re Smith, 3 Cal.3d 192, 90 Cal.Rptr. 1, 474 P.2d 969, 976 (1970); In re Grunau, 169 Cal.App.4th 997, 86 Cal.Rptr.3d 908, 910-11 (2008), and where "there is no material dispute as to the facts relating to his conviction and . . . it appears that the statute under which [the petitioner] was convicted did not prohibit his conduct." Mutch, 93 Cal.Rptr. 721, 482 P.2d at 637; see also People v. Hunter, 4 Cal.3d 432, 93 Cal.Rptr. 746, 482 P.2d 658, 659 (1971). If petitioner asserted these habeas claims, the district court shall make determinations as to the tolling of the statute of limitations and the merits of the amended claims.
The parties are to bear their own costs.