Flowers v. Foulk

Background

The Ninth Circuit remanded the case for the limited purpose of deciding whether to issue a certificate of appealability concerning the district court’s September 16, 2021 order. A certificate of appealability is required for an appeal from the denial of a federal habeas petition.

In the September 2021 order, the court denied Joseph J. Flowers’s motion under Federal Rule of Civil Procedure 60(b)(1), (b)(2), (b)(3), and (b)(6) to vacate the judgment and reopen his petition. Flowers argued that the respondent had committed fraud on the court and on Flowers by making him and the court believe that the respondent had provided a particular set of transcripts from proceedings held on December 9, 2009.

Flowers contended that the court’s earlier ruling that Claim 4 was procedurally defaulted under In re Dixon, 41 Cal. 2d 756 (1953), depended on an incorrect assumption that he could have raised his argument about confidential communications with trial counsel on direct appeal. He argued that the assumption resulted from the respondent’s alleged failure to provide all relevant transcripts.

Reasons for the Earlier Denial

The court previously concluded that the motion was untimely to the extent it relied on Rule 60(b)(1), (b)(2), or (b)(3), because Flowers filed it more than one year after judgment was entered on September 5, 2017. The court also concluded that the motion failed under Rule 60(b)(6) because Flowers had not shown that the procedural-default ruling was erroneous. Specifically, he had not demonstrated that the respondent’s alleged failure to provide the December 9, 2009 transcripts prevented him from raising Claim 4 on direct appeal.

Certificate-of-Appealability Standard

When a district court denies a habeas petition on procedural grounds without deciding the underlying constitutional claim, a certificate of appealability should issue only if reasonable judges could debate both whether the petition states a valid constitutional claim and whether the district court correctly applied the procedural rule.

Ruling

The court found that Flowers had not shown that reasonable judges could debate whether Claim 4 was procedurally defaulted or whether the motion to vacate the judgment was properly denied. The court relied on the reasons in its September 16, 2021 order, which it incorporated by reference.

The court also noted that Flowers had not explained what occurred during the December 9, 2009 proceedings that could have prevented him from raising Claim 4 on direct appeal. Transcripts from December 8, 2009 showed that the trial court had considered Flowers’s argument that his right to confidential communications with trial counsel was being violated. Flowers did not argue that he lacked access to those December 8 transcripts when he was required to file his direct appeal. The court stated that even if Flowers lacked access to some transcripts, that would not change its conclusions because he had not shown that he lacked access to other transcripts showing that trial counsel had raised the confidentiality issue.

The court DENIED a certificate of appealability.