Mitchell Thomas Blazak, Petitioner-Appellee-Cross-Appellant v. James R. Ricketts, Donald Wawrzaszek, Respondents-Appellants-Cross-Appellees

971 F.2d 1408, 92 Daily Journal DAR 10824, 92 Cal. Daily Op. Serv. 6763, 1992 U.S. App. LEXIS 18042, 1992 WL 184992

• Court: Court of Appeals for the Ninth Circuit
• Decided: August 4, 1992
• Docket: 91-16549, 91-16562
• Status: Published

Opinions

PER CURIAM.

This is an appeal and cross-appeal from a grant of habeas corpus by the district court in a death penalty case. We sua sponte have considered whether we have jurisdiction to consider this appeal, see Collins v. Miller, 252 U.S. 364, 366, 40 S.Ct. 347, 348, 64 L.Ed. 616 (1920), and whether we should remand this case because of prudential concerns for judicial finality and efficiency. We find that the grant of habeas corpus was a final judgment ripe for immediate review.

I

In 1988, Petitioner Mitchell Blazak filed a second amended habeas corpus petition under 28 U.S.C. § 2254.¹ The petition contained thirty-seven claims for relief, eleven of the claims challenged the conviction and twenty-six of the claims attacked the sentence. Both parties indicate that the district judge in effect bifurcated the conviction and sentencing issues, considering all of the conviction issues, claims one through eleven, separately. In July of 1990, the district court granted summary judgment in favor of the state on claims five, six, seven, nine, and ten. The court held an evidentiary hearing on claims one, two, three, four, eight, and eleven. On September 10, 1991, the court entered an order denying habeas relief as to claims one, two, three, four, and eight. The court, however, granted habeas relief as to claim eleven, finding that “reasonable grounds exist to question Petitioner’s competency at the time of trial.” The order granted the Petition for Writ of Habeas Corpus, but left the “state free to retry Petitioner, assuming, of course, that at the time of such trial he is competent to be tried.”

The dissent states that at this point “there was no indication the district court ever considered the judgment to be final.” Dissent at 1416. We disagree. The district court’s order clearly was designed to be final. The order granted the writ, left the state free to retry the petitioner, and returned all exhibits in the court’s possession to the Arizona Attorney General’s Office. Subsequently, on September 11,1991, as required by Fed.R.Civ.Pro. 58, the clerk for the court entered a “JUDGMENT IN A CIVIL CASE” granting the writ as to claim eleven only.² The court’s docket noted that judgment had been entered granting the writ of habeas corpus and “terminating the case.” The state filed an appeal from the “district court’s judgment which granted the writ of habeas corpus” and the Petitioner cross-appealed the “final judgment entered in this action.” The district court then granted a Certificate of Probable Cause to allow Petitioner to proceed with his cross-appeal. We fail to see any reason to believe that the court, or the parties, considered the judgment to be anything less than a final judgment ending the litigation at the district court level. Indeed, had the district court contemplated further proceedings it would not have certified the case for appeal or returned the exhibits to the state.

The state appeals the grant of habeas as to claim eleven and Petitioner cross-appeals the denial of claims one through ten. On May 28, 1992, we issued an order to show cause as to why the case should not be dismissed without prejudice and remanded to the district court in conformity with the finality principles announced in the recent case of Clisby v. Jones, 960 F.2d 925 (11th Cir.1992) (en banc). On June 23, 1992, argument was held to discuss this question.

II

We have jurisdiction under 28 U.S.C. § 2253 to review on appeal a “final order” of a district judge in a habeas corpus proceeding. The settled rule in civil proceedings that we have jurisdiction over only final judgments applies to habeas corpus proceedings. Collins v. Miller, 252 .U.S. 364, 366, 40 S.Ct. 347, 348, 64 L.Ed. 616 (1920). The district court’s order requiring the, state to retry the Petitioner, if competent, left nothing to be done but the execution of the judgment and was thus final. Catlin v. United States, 324 U.S. 229, 233, 65 S.Ct. 631, 633, 89 L.Ed. 911 (1945). Because this order disposed of all the conviction related claims and, by vacating the Petitioner’s conviction, granted all the relief requested it is a final appealable judgment. See Young v. Herring, 777 F.2d 198, 202 (5th Cir.1985); Blake v. Kemp, 758 F.2d 523, 525 (11th Cir.), cert. denied, 474 U.S. 998, 106 S.Ct. 374, 88 L.Ed.2d 367 (1985); but cf. Stewart v. Bishop, 403 F.2d 674, 679 (8th Cir.1968) (District court’s order requiring state to provide hearing on voluntariness of defendant’s conviction, but reserving jurisdiction over habeas petition, not a final judgment.).³

Both logic and case law dictate our conclusion that the order of the district court was a final judgment. The order left the state free to retry the Petitioner if it chose but nothing further remained for the district court’s consideration. In Browder v. Director, Illinois Dept. of Corrections, 434 U.S. 257, 98 S.Ct. 556, 54 L.Ed.2d 521 (1978), the Supreme Court rejected the state’s argument that a conditional grant of habeas corpus was not a final judgment leaving nothing to be done but to enforce its execution “because all the required procedures under the Habeas Corpus Act had not been completed at the time the order was issued.” Id. at 265, 98 S.Ct. at 561. The state maintained that the district court erred in not deciding whether to hold an evidentiary hearing before granting the writ. The Court dismissed the appeal as untimely because the state did not appeal soon enough after the district court’s order “directing the Petitioner be released unless the State retried him within 60 days.” Id. at 256, 98 S.Ct. at 555. In reaching this conclusion the Supreme Court specifically held that the order was a final order. Similarly, the order in the present case was a final order. Unless the district court’s judgment is overturned on appeal nothing is left for the district court but to ensure the execution of its judgment.

In Young, 777 F.2d at 201, the Fifth Circuit specifically considered the issue before us today: a grant of habeas corpus by the district court where the court did not rule on all the habeas arguments. The court noted that “the sole purpose of the habeas corpus proceedings is to test the validity or legality of the restraint of the Petitioner.” Id. at 202 (quoting Martin v. Spradley, 341 F.2d 89, 90 (5th Cir.1965)). Id. Thus, the court held that an order granting a writ of habeas corpus ended the litigation on the merits and was a final appealable judgment. In reaching this conclusion the court cited to Blake, 758 F.2d at 525, where the Eleventh Circuit also decided that a habeas corpus grant ordering a new trial or release of the Petitioner finally settled the rights of both parties and was a final judgment. In the case before us, as in Young and Blake, both parties’ rights have been determined and the litigation on the merits is over. Therefore, there is a final appealable judgment.

The dissent insists that the recent case of Clisby v. Jones, 960 F.2d 925 (11th Cir. 1992) (en banc), “clearly undermined” the decision in Blake (and by virtue of its citation to Blake, the decision in Young). This is not true. In Clisby the court considered a district court’s decision granting a writ of habeas corpus but reserving decision on some remaining claims. The Eleventh Circuit used its supervisory powers to issue a prospective rule requiring district courts to consider all claims for relief raised in a habeas petition, whether the habeas petition is granted or denied. Significantly, the court took jurisdiction over the appeal before it and decided the merits of the claims reached by the district court. Id. at 928-34. Thus, the court did not overrule its law that a grant of habeas corpus on some claims for relief can be a final judgment for purposes of appeal. See, e.g., Wilson v. Kemp, 777 F.2d 621, 622-23 (11th Cir.1985), cert. denied, 476 U.S. 1153, 106 S.Ct. 2258, 90 L.Ed.2d 703 (1986); Blake, 758 F.2d at 525. Obviously, if the court did not believe the order in Clisby was a final judgment, no appellate jurisdiction would have existed and the court would have been powerless to decide the issues it reached.

In Firestone Tire & Rubber Co. v. Risjord, 449 U.S. 368, 101 S.Ct. 669, 66 L.Ed.2d 571 (1981), the Court made it clear that an appellate court is powerless to hear a case unless there is a final judgment. In Firestone the appellate court held that an order denying motions to disqualify counsel was not a final judgment but made its decision prospective and went on to reach the merits of the challenged order. Id. at 369-70, 101 S.Ct. at 670-71. The Court upheld the ruling as to finality, but went on to state:

If the appellate court finds that the order from which a party seeks to appeal [is not final], its inquiry is over. A court lacks discretion to consider the merits of a case over which it is without jurisdiction, and thus, by definition, a jurisdictional ruling may never be made prospective only. We therefore hold that because the Court of Appeals was without jurisdiction to hear the appeal, it was without authority to decide the merits.

Id. at 379, 101 S.Ct. at 676 (footnote omitted). In reaching the merits in Clisby the Eleventh Circuit had to have considered the district court’s judgment final or it would have been powerless to decide the case and its decision on the merits would be futile. There is a world of difference between a court issuing a prospective order under its supervisory power and a ruling that a court is without jurisdiction because no final judgment has been entered.⁴

In Bermudez v. Smith, 797 F.2d 108, 109 (2d Cir.1986), the Second Circuit reserved decision over the specific question facing us today. In its opinion, however, the court distinguished the situation facing it, a dismissal of most but not all of the habeas claims, from a grant of habeas corpus. The Court stated: “[I]n the situation here, unlike that in which (as in Blake) the writ is granted, petitioner has not secured ‘all he could hope to achieve.... ’ Thus, unlike in Blake, the judgment does not satisfy the classic test of finality_” Id. at 110 (citation omitted). Other cases, without much discussion, have ássumed that a grant of a writ of habeas corpus is a final decision. See, e.g., Hull v. Freeman, 932 F.2d 159, 163 (3d Cir.1991) (“It is well-settled that a district court order conditionally granting a habeas corpus petition and directing the state to discharge the petitioner unless he or she is retried within a certain number of days is ‘final’ for purposes of sections 1291 and 2253.”); Martin-Trigona v. Shiff, 702 F.2d 380, 385 (2d Cir.1983) (“An order granting habeas corpus review is final and subject to review.”); see also 16 Fed.Procedure § 41:550 (Lawyers ed. 1983) (“Examples of final orders [on petitions for habeas corpus review] include — an order specifying that a prisoner be discharged if the state does not retry him within a specified period.”).

Two other cases also illustrate how the grant of a writ of habeas corpus vacating a sentence and granting a new trial meets the classic tests of finality. In these cases, the courts faced the question of whether the issuance of a habeas corpus granting a new trial was a final judgment for purposes of 28 U.S.C. § 2255. The standard of reviewability for § 2255 cases is the same as for habeas corpus proceedings under 28 U.S.C. § 2254. 28 U.S.C. § 2255. In United States v. Allen, 613 F.2d 1248 (3d Cir. 1980), the court noted that once the § 2255 court grants the motion for a new trial the court is divested of jurisdiction and the role of the court ends because “ ‘there is nothing for the court to do but execute the judgment.’ ” Id. at 1251 (quoting Catlin v. United States, 324 U.S. 229, 233, 65 S.Ct. 631, 633, 89 L.Ed. 911 (1945)). In United States v. Dunham Concrete Products, Inc., 501 F.2d 80 (5th Cir.1974), cert. denied, 421 U.S. 930, 95 S.Ct. 1656, 44 L.Ed.2d 87 (1975), the court reached the same result. The court noted:

In our case the § 2255 proceedings have ended with an order requiring the Government, if it wishes to persist in an effort to punish Dunham, to return to Square One and recommence its effort ab initio. A more final termination of the § 2255 action can scarcely be imagined; what possible purpose could it serve? We have jurisdiction.

Id. at 81-82.

Since the order is a final appealable judgment, granting the Petitioner all the success he could hope to obtain from his lawsuit, there was no requirement for the district court to certify the case for appeal under Fed.R.Civ.P. 54(b). Young, 111 F.2d at 202. Although the district court did not address the sentencing issues, these claims became moot and unnecessary to reach by virtue of the order vacating the conviction and requiring a new trial.⁵ The district court’s order implicitly disposed of the sentencing claims as moot once it vacated the conviction. Only if the district court’s decision is reversed on appeal will it become necessary to reach these claims.

This case is not unlike other final judgments in civil cases, such as grants of summary judgment, which effectively would end the litigation if upheld but would require a remand for further proceedings if reversed by an appellate court. For instance, if in a libel case the district court grants summary judgment for the newspaper on the issue of liability, the court need never resolve the question of whether punitive damages would be appropriate. That issue has been mooted by the district court’s ruling on the merits. Only if a court of appeals reverses the liability determination made by the district court and orders a trial will it become necessary to turn to the damages issues raised by the case. In such a case, we would not insist that the district court address hypothetically the damages issue before taking jurisdiction over the summary judgment ruling. Nor would we require a Rule 54(b) certification. There, as here, the ruling on liability grants one party full relief and dispenses with the need to pursue penalty issues.

Ill

We believe it would be unwise in this case to exercise our supervisory powers to enact a rule similar to the one adopted in Clisby. Although we embrace the goals of prompt resolution of habeas petitions and the avoidance of piecemeal litigation, this is not a case where a remand to the district court to consider all the issues presented in the petition makes sense. Indeed, extending Clisby to this context would be mixing apples and oranges. In Clisby the district court granted relief as to the imposition of a sentence of death, but reserved judgment on claims going to the underlying conviction. 960 F.2d at 926-27. As a result, the conviction issues remained alive and unresolved regardless of whether the court of appeals affirmed or reversed the district court’s decision on the penalty issues. As the en banc court noted, this relief was partial because, even if the Petitioner was resen-tenced correctly, the conviction itself was still at risk. Id. at 937. Unlike Clisby, however, in the present appeal we have a complete resolution of all of the alleged constitutional infirmities arising from the relevant set of operative facts relative to conviction. See id. at 936. This decision renders the sentencing issues moot. There can be no sentence without a conviction. Thus, unlike Clisby, if we affirm, the habe-as corpus action is completed. No further proceedings before the district court will be necessary. No live issues will remain unresolved. Only if we overturn the district court’s judgment will the Petitioner’s remaining sentencing issues become live claims. Even if the district court’s grant of the writ is ultimately overturned, all of the conviction challenges will be resolved and leave only the sentencing issues to be considered.

Also unlike Clisby, when habeas is granted on a conviction issue rather than a sentencing issue, requiring the district court to resolve at one time all the issues raised in the petition could actually delay the proceedings unnecessarily and waste the district court’s scarce judicial resources. In Clisby cases, having the district court address the conviction claims even though habeas has already been granted on the sentence promotes efficiency. The conviction issues remain alive despite the grant of habeas on the sentence and must be decided regardless of the outcome of the appeal. Instructing district courts to decide conviction claims after ruling on the sentencing issues thus does not impose any additional work burden on district courts. It just affects the timing of their decisions.

In Blazak’s case, by contrast, an affirmance on appeal will obviate altogether the need for either the district court or this court to address Blazak’s penalty phase claims. True, in the event this court reverses the district court’s determination, we will have to remand for resolution of the sentencing issues and presumably await the next appeal. On the other hand, should we ultimately affirm the grant of habeas on the conviction, an interruption of the present appeal for the district court to decide sentencing issues that we will never reach will occasion needless delay and hardship for all concerned. The district court will be required to expend valuable time and scarce judicial resources deciding sentencing claims that our affirmance renders purely academic.⁶ After all, from the district court’s viewpoint, Blazak’s sentencing claims are moot. Thus what appears procedurally economical to appellate judges may, from the district court’s vantage point, be deemed unjustifiably burdensome and costly. Judicial efficiency, in this context, is truly in the eyes of the beholder.⁷

All of Petitioner’s claims have been raised in his second amended habeas corpus petition. Both of the parties here wish us to proceed. The Supreme Court recently has urged us to “take all steps necessary to insure a prompt resolution of” habeas claims, particularly where federal courts have ordered the stay of an execution by a state. In re Blodgett, — U.S.-,-, 112 S.Ct. 674, 676, 116 L.Ed.2d 669 (1992). There has been no piecemeal presentation of the issues in this case. A decision of this appeal will promptly move this matter to its next logical phase — either affirmance of the district court granting of the writ and retrial, or reversal of the granting of the writ and remand for consideration of the sentencing issues.⁸

The dissent implies that the parties are engaged in an odious and collusive attempt to confer jurisdiction upon our court. Dissent at 1416. At the time of the proceedings, the district court and the parties proceeded based on the reasoned assumption that a grant of the relief requested amounted to a final judgment. At the time of the district court’s judgment and the parties’ appeals there was no cause to believe this was anything but a final order. The Clisby case was not decided until eight months after the appeal was filed. Until that time the only case supporting the notion that the judgment possibly might not be final was a 1968 case from the Eighth Circuit, Stewart v. Bishop, 408 F.2d 674 (8th Cir.1968), which apparently had never been followed directly.

It is significant that even Clisby applied the rule prospectively, enforcing the rule only in cases decided 120 days after the court issued its opinion. 960 F.2d at 938. Thus, the Clisby court avoided the result urged by the dissent here; to suddenly remand the case and prolong the proceedings with no fair warning. In the present case, the parties appealed the decision in October of 1991. For us to remand the case in July of 1992, ten months later and after full briefing by the parties, with no progress having been made, would appear to be a delay in the litigation.

In fact, at this point, if we enact a rule requiring remand of all habeas corpus cases where habeas has been granted but not all the claims were addressed below, we would do so with no idea of the number of cases this rule would affect. Indeed, there is the potential that some cases that have already been argued and are nearing decision would have to be remanded. Such a course is ill-advised.

IV

Accordingly, it is hereby ordered that we will hear oral argument on the merits of this appeal in San Francisco on September 11, 1992, at 10:00 a.m.

1 . Petitioner was convicted of murdering a bartender and patron at the Brown Fox Tavern in Tucson, Arizona. The dissent describes the testimony at trial as having "established” certain facts. Blazak, however, challenges the sufficiency of the evidence at trial. Thus, the dissent’s language may be premature since we have not yet considered the merits of this appeal.

2 . The dissent makes the argument that this entry of judgment was invalid under Fed.R.Civ.P. 58(2) because the court did not "promptly approve of the form of the judgment.” Dissent at 1415. The Rule 58 “separate judgment” was entered, on the court’s standard form for a “Judgment in a Civil Case.” We have never applied Rule 58 in the manner the dissent urges here. Rule 58 was designed "to clarify when the time for appeal ... begins to run” and not to be a categorical imperative with talismanic powers to derail appellate jurisdiction. Bankers Trust Co. v. Mollis, 435 U.S. 381, 384, 98 S.Ct. 1117, 1120, 55 L.Ed.2d 357 (1978) (per curiam); Hollywood v. City of Santa Maria, 886 F.2d 1228, 1231 (9th Cir.1989). Furthermore, we have required a party to establish prejudice before dismissing an appeal because of an allegedly defective Rule 58 separate document. See, e.g., Noli v. Commissioner, 860 F.2d 1521, 1525 (9th Cir. 1988); Harris v. McCarthy, 790 F.2d 753, 757 (9th Cir.1986). Here, -as in Noli, 860 F.2d at 1525, both parties understood the district court’s order and subsequent judgment as final for purposes of appeal. To dismiss the appeal to allow the district judge to "approve the form” of the Rule 58 document would be absurd and nothing more than spinning our wheels “for no practical purpose.” See Bankers Trust, 435 U.S. at 385, 98 S.Ct. at 1120.

3 . The dissent misreads the petition when it asserts that claims 16 and 33 pertain to Blazak’s conviction, rather than his sentence. Claim 16 addresses the use of prior convictions as "aggravating factors” at the penalty phase. The use or attempted use of Blazak's criminal history during the guilt/innocence phase is not raised as ■ an issue in the petition for habeas corpus. Likewise, claim 33 speaks to the unconstitutionality of the “imposition of capital punishment” in a case where the jury was not instructed on a lesser included offense. While such an argument could be made to challenge a conviction for capital murder, see Beck v. Alabama, 447 U.S. 625, 100 S.Ct. 2382, 65 L.Ed.2d 392 (1980), Blazak chose to couch his claim as an attack on the validity of his sentence. In short, the most that a ruling on claim 16 or 33 could accomplish for Blazak is an order for resentencing. The claims do not go to the merits of the underlying conviction.

4 . A ruling that we are without jurisdiction to consider this appeal would prevent us from, as the dissent suggests, remanding the case. Our only recourse would be to dismiss the appeal. 449 U.S. at 380, 101 S.Ct. at 676. The parties then would need to seek relief from the district court’s order from the district court itself, perhaps under Fed.R.Civ.P. 60. The state would likely have a strong desire to secure relief somehow before it was obligated to retry Petitioner without a chance to appeal on the merits.

5 . Two circuits, noting the need for prompt resolution of habeas corpus petitions and the unique nature of a habeas challenge to the legality of confinement, have held that Rule 54(b) does not apply to cases in which habeas and non-habeas claims are joined. See Miller v. Misfud, 762 F.2d 45 (6th Cir.1985); United States ex rel. Stachulak v. Coughlin, 520 F.2d 931 (7th Cir. 1975), cert. denied, 424 U.S. 947, 96 S.Ct. 1419, 47 L.Ed.2d 354 (1976). These cases emphasize that the focus of a habeas claim is upon the validity of the conviction and that once this is determined there is a final judgment in relation to the habeas action.

6 . Of course, under the dissent’s approach, courts of appeals may now have to abandon their historic practice of deciding only those issues necessary to dispose of an appeal. Perhaps we too will now have to decide all of an appellant’s issues presented on appeal, regardless of necessity, simply to avoid remands from the Supreme Court in habeas corpus cases. In cases where the Supreme Court would deny certiorari or affirm the initial ruling, increasing the courts of appeals’ work load in this manner promotes neither efficiency nor the expeditious resolution of petitions for habeas corpus.

7 . Moreover, unlike habeas grants exclusively on sentencing issues, the grant of a habeas petition because of the constitutional invalidity of a conviction raises concerns that a possibly innocent person has been unjustifiably incarcerated on death row for a number of years. Delaying retrial in such cases, while attorneys fight over a sentence that may no longer exist, risks the perpetuation of a monumental injustice, should retrial ultimately result in an acquittal.

8 .We do not decide whether the Clisby approach would be appropriate in cases where habeas corpus is granted on sentencing issues, rather than on claims going to the merits of the underlying conviction.