Appeal from the United States District Court for the Central District of California. Ronald S.W. Lew, District Judge, Presiding. D.C. No. CV 88-5344-RSWL
Before: Farris, Noonan And Trott, Circuit Judges
Nelson L. Thomas appeals from the district court's denial of his petition for habeas corpus. We affirm.
On March 28, 1981, Thomas consumed amphetamines and barbiturates. He drove with a friend to a housing project. Angry that a television had been stolen from him earlier in the evening, Thomas got out of the car, opened and closed the car's trunk lid (perhaps extracting something from the trunk), and left. A short while later, a man matching Thomas' description attempted to rob a pedestrian, Freddie Smith, at gunpoint. Smith testified that the robber told him to "Give me your money," while another witness, Harvey Thornsburg, testified that the robber said, "Give me my money back." After a bystander remonstrated with him, the robber fatally shot the bystander with a shotgun. When he returned to the car, Thomas told his friend that he had asked some people for money. After one of them had made a "smart remark," Thomas said, he had "downed" the person, who had "crumpled to the ground."
Thomas pled not guilty to first-degree murder. After a trial, eleven jurors voted for second-degree murder. The twelfth juror refused to vote for religious reasons. Although there were alternate jurors, the court declared a mistrial. The evidence in the retrial resembled that in the first trial, with two differences important here. First, Harvey Thornsburg did not testify; in the first trial he had testified as to his understanding of the robber's demand. Second, a psychiatrist, who had first been contacted the second day of the retrial, testified for the defense. The new jury convicted Thomas of first-degree murder. The California Court of Appeal affirmed, and Thomas did not appeal to the California Supreme Court for health reasons. He subsequently filed a habeas corpus petition in the California Supreme Court, which denied the petition on the procedural ground of failure to set forth sufficiently specific facts.
The federal district court denied Nelson's petition for habeas corpus on July 31, 1990, and denied his motion for reconsideration on August 9, 1990. On September 13, 1990, he submitted to prison authorities a notice of appeal to this court.
This court issued a certificate of probable cause to appeal on November 16, 1990. We remanded for the limited purpose of determining whether the notice of appeal was timely filed. The district court determined that it was. The prison mail room lost the first notice of appeal, which Thomas had delivered on August 28, 1990, within the time for appeal. The duplicate that he delivered to the mail room on September 13, after the time for appeal had passed, was the one actually submitted to the courts. This submission sufficed. Fed. R. App. Proc. 4(a) only requires an inmate to deliver the notice of appeal to the mail room before the time for appeal has run. Houston v. Lack, 487 U.S. 266, 270-71 (1988). By delivering his original notice on time and promptly submitting a duplicate when he discovered the original might have been lost, Thomas did all that Rule 4(a) required of him. He cannot be blamed for the authorities' loss of his notice. The notice was timely filed and we have jurisdiction under 28 U.S.C. § 2253.
Thomas' ineffective-assistance claim and several others are arguably unexhausted. His double jeopardy claim and several others are clearly unexhausted. The state, however, does not raise exhaustion. Neither side has briefed the issue. The merits run clearly against Thomas. We therefore exercise our discretion to proceed to the merits. See Granberry v. Greer, 481 U.S. 129, 134-36 (1987).
Thomas argues that the state court erred in declaring a mistrial in his first trial without consulting him. The mistrial stemmed from one juror's refusal to vote; Thomas contends that the court should have seated one of the alternates and should in any event have consulted the parties before declaring a mistrial. The vote at that time was 11-0 in favor of second-degree murder, and a twelfth vote would have ...