New Hearing Ordered for Ariz. Death-Row Inmate

SAN FRANCISCO (CN) — The Ninth Circuit on Monday ordered an Arizona death row inmate's one-day-late habeas corpus petition to be heard and determined on its merits.

Theodore Washington and two co-defendants, Fred Robinson and James Mathers, were convicted and sentenced to death in 1987 for shooting Robinson's common-law wife's step-mother.

Mathers' conviction was overturned by the Arizona Supreme Court due to insufficient evidence.

Robinson's sentence was reduced to 67 years to life because of an improper sentence enhancement.

Washington's federal habeas petition was denied on June 8, 2005. He had 30 days to file an appeal, but his legal team made a mistake and filed the appeal on July 11, one business day after the deadline. He then had a 30-day grace period to explain why the filing was late, but due to a court error he didn't learn about the late filing until two and a half months later.

The timeliness issue seemed to be a hurdle that could not be cleared. The district court denied Washington's petition to have the judgment vacated and re-entered so as to make his appeal timely. Then a three-judge panel of the Ninth Circuit decided that it lacked jurisdiction to hear the case.

But the Ninth Circuit decided to rehear the case en banc, and Judge Morgan Christen, who delivered the 6-5 decision, wrote that this is an extraordinary case.

"We conclude that when Congress adopted the Federal Rules, it entrusted the courts with the essential task of identifying the rare cases that warrant reentry of judgment for purposes of restoring the right to appeal," Christen wrote. "Of the thousands of judgments entered by district courts each year, only a handful have been found to warrant this type of relief. We conclude that Washington's is one of them."

Christen found it crucial that for two and a half months the district court's docket was empty after Washington filed his notice of appeal, and the district clerk did not send the notice to the appellate clerk in that time. Washington's attorneys could not have known from checking the docket that the notice was late. They would have had to recalculate, unprompted, when the notice was due.

"Washington's lawyers are responsible for the initial late filing, but we cannot say they lacked diligence for failing to detect their late filing in time to seek an extension. The district court abused its discretion in concluding otherwise." (Italics in ruling.)

The state would not be prejudiced if the appeal were heard, Christen wrote, so it should be heard, especially given that this is a death penalty case and Washington's co-defendants have received relief.

"Dismissal of Washington's appeal would prevent any appellate review of the denial of his potentially meritorious habeas petition, yet it was a court error that prevented Washington from seeking an extension of time expressly allowed by the Rules."

Judge Jay Bybee, however, in one of two dissenting opinions, said the Ninth Circuit lacks jurisdiction.

"[The majority] has utterly failed to explain how a claim-processing rule like Rule 60(b) can be used to undermine a jurisdictional, statutory filing requirement promulgated by Congress," Bybee wrote. "And it ignores the consequences of its decision today: that in allowing relief under Rule 60(b) from an untimely appeal, the court puts a hole right through the Rule 4(a) timing requirements, now giving parties up to a year to attempt to pursue an appeal." (Italics in original.)

Gilbert Levy, an attorney for Washington in Seattle, said the team is "grateful for the ruling."

"It's been a long fight," Levy added. "Mr. Washington, my client, has been on death row since the late 1980s and we're hoping with the Ninth Circuit's ruling that his case can be heard sometime soon on the merits."

Assistant Arizona Attorney General Laura Chiasson represented the state corrections department. Her office did not return a request for comment.

Nor did attorneys for the National Association of Criminal Defense Lawyers, which filed an amicus brief in the case. They were represented by Nathaniel Love with Sidley Austin in Chicago.

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