Crime - Sacto 911

Appeals court says Yolo County attorney erred in not filing paperwork to overturn murder conviction

An Elverta man serving a life sentence in prison for first-degree murder should not be prevented from challenging his 2001 conviction just because his lawyer missed a deadline to file required paperwork, a federal appellate court has ruled.

A three-judge panel of the 9th U.S. Circuit Court of Appeals struck down a Sacramento federal judge’s dismissal of Benito Julian Luna’s petition to set aside his conviction.

The panel sent the case back to U.S. District Judge Morrison C. England Jr. in Sacramento and directed him to determine whether Luna diligently pursued his rights from his prison cell, despite what the panel characterized as the “utterly deficient” performance of Yolo County attorney Joseph Wiseman.

Luna claims in his petition that his murder conviction was flawed for a variety of reasons, including perjured testimony and mistaken identity.

Wiseman’s failure to meet a deadline for the filing of a renewed federal petition “was bad enough. Worse still, in response to an inquiry from Luna shortly before the statute of limitations expired, Wiseman misled Luna to believe that a ... petition would be filed ‘shortly,’” the appellate panel said Tuesday.

The deadline of Feb. 14, 2005, was three weeks away when Wiseman assured his client that the filing of a federal petition was imminent. Instead, he filed it more than six years later, on June 3, 2011.

Wiseman declined comment in an email message to The Sacramento Bee.

The 23-page appellate court’s opinion was authored by 9th Circuit Judge Paul J. Watford and concurred with by 9th Circuit Judges Ronald M. Gould and Michelle T. Friedland.

Luna was found guilty by now-retired Sacramento Superior Court Judge Richard Gilmour at the conclusion of a non-jury trial in 2001. He was sentenced the next year to life in prison with no possibility of parole for the April 2000 murder of Adam Todd, who was attending a party in Citrus Heights where an attempted home invasion robbery ended in a shootout.

Now 48, Luna is an inmate at Salinas Valley State Prison.

Wiseman, who heads Wiseman Law Group in Davis, was appointed in June 2004 by U.S. Magistrate Judge Gregory G. Hollows to represent Luna in his attempt to overturn his conviction in both the state and federal courts.

“Sadly,” Hollows later wrote, “it may be the case in hindsight that (Luna) may have been better off without counsel, but (Luna) could not have done more to ensure a timely filing once his attorney was appointed.”

Hollows replaced Wiseman in September 2011 with Walnut Creek attorney Barry Morris. Despite his conclusion that Wiseman’s conduct was “inexcusable,” Hollows recommended to England that Luna’s petition be dismissed because the papers were filed late. England adopted the recommendation and threw the case out.

The 9th Circuit panel had a distinctly different view.

Wiseman’s actions were “utterly deficient and unprofessional ... and, unlike run-of-the-mill mistakes, were far enough outside the range of behavior that reasonably could be expected in the typical case that they may be regarded as extraordinary,” which is the legal requirement to allow Luna to pursue his challenge, the panel said.

Call The Bee’s Denny Walsh, (916) 321-1189.

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