Kenneth Bianchi was arrested in Bellingham, Washington, on January 12, 1979, a day after two Western Washington University students, Karen Mandic and Diane Wilder, were strangled in a house he had lured them to while he was working as a security guard. The newspapers were soon asking whether the Bellingham killings had anything to do with the Hillside Strangler murders of ten women and girls in Los Angeles in 1977 and 1978, and to protect his right to a fair trial the prosecutor and the defense together asked the Whatcom County Superior Court to seal the affidavit setting out the grounds for his arrest. The Bellingham Herald asked to join the case to fight the order, and the trial court let it. On April 30, 1979, the Supreme Court of Washington held that a newspaper had no business intervening in a criminal prosecution.
In October 1979 Bianchi pleaded guilty to the two Bellingham murders and to five of the Los Angeles murders under a single agreement between the two states, which spared him the death penalty in exchange for his testimony against his cousin, Angelo Buono. He received two consecutive life terms in Washington and a California life term that the Los Angeles judge ordered merged into them. After Buono's trial, the Los Angeles prosecutor declared that Bianchi had not testified fully and truthfully, the trial judge affirmed that finding in January 1984, and Bianchi was sent back to Washington. The two federal appeals printed after the 1979 ruling are his own. In the first, which he filed without a lawyer from the state penitentiary at Walla Walla, he sued the Bellingham police over his arrest nine years after it happened, and in 1990 the Ninth Circuit held that his time in custody had stopped the clock. In the second, the same court held in 1991 that he could not attack the judgments of two states in a single habeas petition.
As of 2025 Bianchi was still held in the Washington State Penitentiary, under the name Anthony D'Amato, which he took in 2023. California denied him parole in 2010 and again in July 2025, at his eighth hearing there, and the Washington board has also refused to release him.
The 1979 ruling is the only one of the three that belongs to the murder prosecution, and it is about who may take part in a criminal case, not about what Bianchi did. It does not name Karen Mandic or Diane Wilder, it does not describe the killings, and it mentions Los Angeles only as "unsolved homicides in another state," because at the end of April 1979 nothing had been proved there. The sealed affidavit it concerns is not in this file. The court ended by commending the judge, both sets of lawyers and the Herald itself for keeping to Washington's voluntary Bench-Bar-Press guidelines in a case it expected to draw sensational coverage.
The two Ninth Circuit opinions give the clearest short account in any court record of the bargain Bianchi struck with two states and of how it came apart after he took the stand against Buono. His own positions, that his arrest was unlawful and that California's detainer breaks the plea agreement, appear in them only as claims. Neither court decided either one. The 1990 panel sent the arrest suit back to the district court to be heard, over a dissent by Judge Diarmuid O'Scannlain, who would have ended it as too late, and the 1991 panel dismissed the habeas petition without prejudice so that he could refile it against one state at a time.
Court opinions are in the public domain. The text is the Caselaw Access Project's digitization of the Washington Reports and the Federal Reporter, and we left its errors alone: the 1979 opinion quotes the Fourth Circuit on "the property before the fcourt," the federal opinions carry words broken where the old printed lines broke them, Quacken-bush, Bian-chi and de-tainer among them, and one citation to the habeas rules prints as "28 foIl. § 2254" with a capital I in place of an l. No name has been shortened. Apart from Bianchi and Buono, the people named are officers, lawyers and judges.
[No. 46062.
En Banc.
April 30, 1979.]
The State of Washington, Petitioner, v. Kenneth Bianchi, Petitioner, Federated Publications, Inc., Respondent.
Dean Brett (of Brett, Brinn & Daugert), John Strait, and David S. McEachran, Prosecuting Attorney, for petitioners.
John S. Ludwigson (of McCush, Kingsbury, O'Connor, Ludwigson, Thompson & Hayes), for respondent.
[OPINION BY Utter, C.J. type=majority]
Utter, C.J.
Both the defense and the prosecution appeal from a Superior Court order permitting The Bellingham Herald to intervene for limited purposes in a highly publicized criminal action. We hold that such intervention in a criminal proceeding is improper.
In January 1979, the defendant, Kenneth A. Bianchi, was arrested and charged with two counts of first-degree murder. Interest in the case was heightened by speculation in the press as to a connection between the defendant and unsolved homicides in another state. In order to ensure the defendant's right to a fair trial, both the prosecution and the defense moved the Superior Court for a protective order sealing the affidavit of probable cause determination. The motion was granted. The Bellingham Herald then moved to intervene for the limited purpose of contesting the order limiting access of the public and the newspaper to the affidavit of probable cause determination. The Superior Court granted the Herald's motion.
In deciding to allow the Herald to intervene for limited purposes, the Superior Court appears to have been primarily motivated by a desire to provide a forum for the Herald to assert its First Amendment rights. We agree that the press has important and valid reasons for seeking access to records in criminal proceedings. It is generally through the news media that the citizenry is kept informed as to the conduct of the judicial system, including the administration of criminal justice. Of course, the Herald's First Amendment rights must be balanced with the defendant's Sixth Amendment right to a fair trial. The issue in this case, however, is not the striking of a balance between the competing interests, but rather a determination of the means available to the press for securing a forum in which to assert First Amendment rights when court records are ordered sealed. Intervention in a pending criminal proceeding is not a proper means of securing such a forum.
There is no rule, statute, or precedent in this state that would allow a third party to intervene in a criminal proceeding. The Washington rules of criminal procedure make no provision for such intervention. Intervention of right is provided for in civil cases only if the intervening party claims "an interest relating to the property or transaction which is the subject of the action". Washington Superior Court Civil Rule 24. The only purpose of a criminal trial is the legal determination of the defendant's guilt or innocence. The Herald has no direct interest in this determination to justify its intervention and the disruption of the pending criminal proceedings inherent in the intervention process. The Herald's remedy must therefore lie in a separate action for declaratory judgment, mandamus, or prohibition.
Other jurisdictions faced with this issue have reached the same conclusion. The Fourth Circuit, considering a similar situation, treated an appeal by members of the press as a petition for mandamus and denied relief. Central S.C. Chapter, Society of Professional Journalists v. United States Dist. Ct., 551 F.2d 559 (4th Cir. 1977). There, the district court judge had entered a pretrial order in a highly publicized criminal trial against a United States Senator. This order regulated the conduct of participants in the trial, particularly as related to contacts with the press, and the seating of the press in the courtroom. The Fourth Circuit dismissed the Society's attempted appeal from the district court's order, stating at pages 563-65:
It is clear that the society should not participate in a case to which it is not a party. Even in civil cases, intervention requires an interest in the transaction or property before the fcourt. FRCP 24. But the Society has no interest in the determination of the defendant's guilt or innocence to justify its intervention....
. . . Since we find nothing in the criminal law or rules permitting the Society to intervene in this case, to introduce collateral issues, and to disrupt the pending criminal trial, we dismiss the appeal. The Supreme Court of Nebraska held that the press had no standing to intervene in the criminal case against a defendant accused of heinous crimes. State v. Simants, 194 Neb. 783, 236 N.W.2d 794 (1975), rev'd on other grounds sub nom. Nebraska Press Ass'n v. Stuart, 427 U.S. 539, 49 L. Ed. 2d 683, 96 S. Ct. 2791 (1976). The trial court had entered a restrictive order relating to pretrial publicity in the mass murder case. Although members of the press brought an original action in mandamus, they also appealed from the trial court's order. In deciding whether or not the press had standing to intervene, the court held, at page 788: No third party has any right to intervene in a criminal prosecution. The matter at issue in such cases is the guilt or innocence of the accused. In legal contemplation no third party "has or can claim an interest in the matter in litigation, in the success of either of the parties to [the] action, or against both." This is the standard applicable to the right to intervene.... Accordingly, the appeal ... is dismissed. In Gannett Pac. Corp. v. Richardson, 59 Haw. 224, 580 P.2d 49 (1978), the Hawaii Supreme Court also rejected attempts by representatives of the news media to intervene in pretrial stages of a criminal action. In determining whether and to what extent an interested member of the public may participate in such proceedings, the court held, citing Society of Professional Journalists and Simants, that there is no rule, statute, or precedent that allows such participation. The Hawaii Rules of Penal Procedure make no provision for nonparty intervention in criminal proceedings, and the adjudicated cases hold that a third party is not entitled to intervene in a criminal prosecution on the ground that he has no direct interest in the determination of the guilt or innocence of the accused to justify his intervention.....To permit a third party to intervene would "unnecessarily encumber pending litigation and invite the entry of 'nonparty-parties' when the right or interest sought to be enforced is not directly involved in the subject matter of the pending proceeding. " Gannett Pac. Corp. v. Richardson, supra at 57-58. We note with approval the conscientiousness of all parties involved in this criminal proceeding with respect to adherence to the Bench-Bar-Press Principles and Guidelines which were voluntarily adopted by the member organizations of the Bench-Bar-Press Committee of Washington. The actions of all persons involved here — the trial court judge, counsel for both the defense and the prosecution, and The Bellingham Herald and its counsel— demonstrate a sincere commitment to comply with both the letter and the spirit of the guidelines and principles. This commitment, especially in view of the great potential for sensationalism in this case, has been noteworthy. The order of the trial court permitting the Herald to intervene in the criminal prosecution of Kenneth A. Bianchi is reversed. Rosellini, Stafford, Wright, Brachtenbach, Horowitz, Dolliver, Hicks, and Williams, JJ., concur.
Kenneth A. BIANCHI, Plaintiff-Appellant, v. BELLINGHAM POLICE DEPARTMENT; Terry Wight; Terry Mangan; David McEachran, Defendants-Appellees.
No. 89-35053.
United States Court of Appeals, Ninth Circuit.
Submitted March 9, 1990.
Decided July 26, 1990.
Robert L. Christie and Scott Stewart, Waitt, Johnson & Martens, Seattle, Wash., for defendants-appellees Terry Wight and Terry Mangan.
Randall J. Watts, Chief Deputy Pros. Atty., Bellingham, Wash., for defendant-ap-pellee David McEachran.
Kenneth A. Bianchi, Walla Walla, Wash., pro se.
Before WRIGHT, REINHARDT and O’SCANNLAIN, Circuit Judges.
The panel finds this case appropriate for submission without oral argument pursuant to Ninth Circuit Rule 34-4 and Fed.R.App.P. 34(a).
[OPINION BY EUGENE A. WRIGHT, Circuit Judge: type=majority]
EUGENE A. WRIGHT, Circuit Judge:
This is a § 1983 action. Kenneth Bianchi appeals the dismissal of complaint on statute of limitation grounds. He argues that his continuous incarceration from the time of his arrest tolls the running of the limitation period. We agree, reverse and remand.
BACKGROUND
Bianchi is a convicted mass murderer serving two consecutive life sentences in the state of Washington. When those sentences are completed, he will be returned to California to serve life sentences for five counts of murder and for conspiracy to commit murder.
He was arrested on suspicion of murder on January 12, 1979, by the Bellingham, Washington Police Department. Three days later, on January 15, he was charged with possession of stolen property. Although the record does not indicate when he was charged with murder, at some point he was booked for investigation of homicide. On October 19, 1979, he pleaded guilty to two counts of murder in Washington and agreed to plead guilty to five counts of murder in California.
He was transported to California to serve as a material witness in investigation of the California murders. He remained in custody there until January 1984, when he was returned to Washington to serve his two consecutive life sentences.
In April 1988, he brought a § 1983 action against the Bellingham police department, the Whatcom County Prosecuting attorney, the Chief of Bellingham Police and an officer in that department. He alleged that the stop, arrest, treatment during his detention, and period of detention exceeded constitutional limitations and that probable cause to arrest had been lacking.
The defendants moved for summary judgment, arguing that the claim was barred by the statute of limitation and by collateral estoppel. A magistrate recommended that summary judgment be granted on the statute of limitation ground and the district court adopted the recommendation. The collateral estoppel issue was not reached.
STANDARD OF REVIEW
We review de novo the district court’s granting of summary judgment, Kruso v. Int’l Tel. and Tel. Corp., 872 F.2d 1416, 1421 (9th Cir.1989), and apply the standards set forth in Fed.R.Civ.P. 56(c). Darning v. Kincheloe, 783 F.2d 874, 876 (9th Cir.1986).
ANALYSIS
In determining limitation issues in § 1983 actions, we look to state statutes of limitation for personal injury cases. Wilson v. Garcia, 471 U.S. 261, 268-71, 105 S.Ct. 1938, 1942-44, 85 L.Ed.2d 254 (1985). The relevant statutes in this case are § 4.16.100 and § 4.16.080 of the Washington Revised Code. Read in conjunction, these sections instruct that Bianchi’s maximum time period for filing his § 1983 action was within 2-3 years of the allegedly unconstitutional detention and arrest. Because his actual filing occurred more than nine years after the arrest, his action is time-barred unless it falls within the Washington state tolling statute.
Tolling Under § 4.16.190
Relevant state tolling statutes are applicable to prisoners’ civil rights suits. See Hardin v. Straub,—U.S.-, 109 S.Ct. 1998, 104 L.Ed.2d 582 (1989). Wash.Rev.Code § 4.16.190 (1989) provides:
If a person entitled to bring an action mentioned in this chapter, ... at the time the cause of action accrued [is] either under the age of eighteen years, or incompetent or disabled to such a degree that he or she cannot understand the nature of the proceedings, ... or imprisoned on a criminal charge, or in execution under the sentence of a court for a term less than his natural life, the time of such disability shall not be part of the time limited for the commencement of action.
(emphasis added). Bianchi’s continuous incarceration since his arrest requires us to construe both the “imprisoned on a criminal charge” phrase and the “in execution under a sentence of a court” phrase.
Imprisoned on a Criminal Charge
Appellees make no challenge to the applicability of this portion of the tolling statute to Bianchi. Reasonable minds, nevertheless, may differ over whether the phrase refers only to incarceration after arraignment, in which case the limitations period would have begun to run while he was imprisoned but not yet formally arraigned, or merely any incarceration. We conclude, however, that tolling is triggered by imprisonment, not arraignment.
In Mitchell v. Greenough, 100 F.2d 184, 187 (9th Cir.1938), we stated “that the phrase ‘imprisonment on a criminal charge’ refers to one who is imprisoned but not yet convicted.” No mention was made of any distinction between imprisoned but not yet formally arraigned. We pointed out that the purpose of the tolling statute was to “protect those who are incapable of protecting themselves by reason of minority, insanity, or actual imprisonment.” Id. (emphasis added).
This purpose, however, is served only when the incapacity is continuous throughout the time the cause of action would accrue. For example, in Krug v. Imbordi-no, we held that a prisoner could not benefit from the Arizona tolling statute when his incarceration had not been continuous during the accrual period of his action. 896 F.2d 395, 397 (9th Cir.1990) (plaintiff “not imprisoned ‘at the time the cause[s] of action occurred’ ”).
In light of these precedents, we hold that actual, uninterrupted incarceration is the touchstone for determining disability by incarceration. See also Hurst v. Hederman, 451 F.Supp. 1354, 1355 (N.D.Ill.1978) (“uninterrupted incarceration prior to conviction is surely as much a disability as post-conviction incarceration” — construing Illinois law). Bianchi has been continuously imprisoned since his arrest. He is entitled to tolling under § 4.16.190 for the period he was imprisoned prior to his conviction and sentence.
Life Sentences & Natural life
Appellees argue that Bianchi falls without the “in execution of a sentence” language because his sentence is for life. They reason that a life sentence by definition cannot be for “less than his natural life.” Wash.Rev.Code § 4.16.190. Bianchi counters that his life sentences may be for less than his natural life due to the possibility of parole.
Wash.Rev.Code § 9.95.115 (1989) allows the discretionary granting of parole to any prisoner “under a mandatory life sentence for a crime committed prior to July 1, 1984, except the person sentenced to life without the possibility of parole” who has served 20 continuous years of incarceration. The distinction made within the provision between life sentences with parole possibility and life sentences with no parole possibility raises the possibility that Bianchi’s sentence may be for a term less than his natural life.
Neither the magistrate nor the district judge addressed this distinction. Appellees urge us to ignore it, arguing that because a prisoner has no constitutionally protected interest in parole the possibility is too speculative to affect the meaning of the term “life sentence.”
Appellees’ authority for this argument sheds little light on the distinction between a life sentence without possibility of parole and one with possibility of parole. Although two state cases do address the distinction, Merriman v. Minter, 298 S.C. 110, 378 S.E.2d 441 (1989) and Hunter v. Hunter, 361 Mo. 799, 237 S.W.2d 100 (1950), we decline to follow those state courts.
We agree instead with Judge Quacken-bush in Bianchi v. Kincheloe, et. al, in which he stated “the term ‘less than natural life’ is clear. A person who is released on parole is not imprisoned for his entire natural life.” 714 F.Supp. 443, 444 (E.D. Wash.1989). The discretionary nature of parole is irrelevant. On its face, the Washington statute distinguishes between two kinds of life sentences. Had the legislature intended no distinction, then it need not have excepted “those persons sentenced to life without parole” from the parole statute. See Wash.Rev.Code § 9.95.115 (1989).
A person sentenced to life with the possibility of parole has the potential one day to live free of confinement. A person sentenced to life with no possibility of parole has no such potential. Such is the difference between hope and hopelessness on the part of both jailer and prisoner.
We conclude that Bianchi is entitled to the benefits of the Washington tolling statute because he has been either imprisoned on a criminal charge or serving a sentence of less than his natural life during the period his claim accrued.
The case is REVERSED and REMANDED to the district court.
The murders committed by Bianchi and his co-conspirator, Angelo Buono, in California became known as the "Hillside Strangler” murders.
Wash.Rev.Code § 4.16.100 (1989) provides that an action for false imprisonment must be brought within 2 years and applies also to actions for false arrests. Heckart v. City of Yakima, 42 Wash.App. 38, 708 P.2d 407 (1985). § 4.16.080 states in pertinent part “any other injury to the person or rights of another not hereinafter enumerated” are to be brought within 3 years.
We do not, however, adopt Judge Quacken-bush’s equal protection analysis because we believe the issue may be decided solely by reference to the statutory language. Neither party has addressed the issue whether Judge Quackenbush’s decision collaterally es-tops renewed litigation of this issue. Such an argument necessarily would involve demonstrating some type of privity or uniformity of interests between the defendants in both cases and we decline to consider the argument sua sponte.
The issue of what collateral estoppel effect Bianchi’s previous guilty pleas have in this case is arguably within the scope of our review despite the district court’s neglect of the issue. Telco Leasing Inc. v. Transwestern Title Co., 630 F.2d 691, 693 (9th Cir.1980) (appellate court has discretion to consider pure legal issue neglected by district court). We prefer to allow the district court a first pass at the question and decline to exercise our discretionary review. [OPINION BY O’SCANNLAIN, Circuit Judge, type=dissent] O’SCANNLAIN, Circuit Judge, dissenting: I do not agree with the court that Bian-chi’s claims for unlawful arrest and detention are saved by the Washington Code’s tolling provision. In my view, the statute of limitations has run on these claims and we must affirm the district court’s order of dismissal. I therefore respectfully dissent. The court notes that Bianchi has been continuously imprisoned since his arrest in 1979 and then “hold[s] that actual, uninterrupted incarceration is the touchstone for determining disability by incarceration.” Ante at 1318. If Washington law provided for a general disability by incarceration, I would agree with this holding. The Washington legislature, however, has not so provided. The Washington tolling statute teaches that if one entitled to bring an action is, “at the time the cause of action accrues either under the age of eighteen years, or incompetent or disabled [to a particular degree], or imprisoned on a criminal charge, or in execution under the sentence of a court for a term less than his natural life, the time of such disability” shall not be included for statute-of-limitations purposes. Wash.Rev. Code § 4.16.190 (West 1988). I agree with the court that Bianchi’s causes of action accrued when he was allegedly unlawfully arrested and detained from January 12 to January 15, 1979. We also generally agree that Bianchi was “imprisoned on a criminal charge” during this time. Yet the court goes on to give Bianchi the benefit of another disability: that of being “in execution under the sentence of a court for a term less than his natural life.” Id. The court does so even though it concedes, in the words of the Washington statute, that Bianchi was not suffering from this second disability “at the time the cause of action accrue[d].” Id. Bianchi was not “in execution under the sentence of a court” until he was convicted and sentenced in Washington in October 1979. This conviction and sentencing took place several months after Bianchi’s arrest — that is, several months after the incidents of which he complains had occurred and his causes of action had accrued. In my view, the tolling provision ceased to be effective and the statute of limitations began to run on Bianchi’s claims upon his conviction and sentencing. As the court concedes, Bianchi’s disability of being “imprisoned on a criminal charge” was then removed. The Washington legislature has declared irrelevant the fact that another disability {viz., being “in execution under the sentence of a court”) was put in its place. Section 4.16.250 of the Washington Code provides that “[n]o person shall avail himself of a disability unless it existed when his right of action accrued.” Wash.Rev.Code § 4.16.250 (1988) (emphasis added). In light of the unambiguous language of sections 4.16.190 and 4.16.250, there is no basis for tacking together two separate disabilities. The court would rely on “the purpose” of the Washington tolling statute, which is to “ ‘protect those who are incapable of protecting themselves by reason of minority, insanity or actual imprisonment.’ ” Ante at 1318 (quoting Mitchell v. Greenough, 100 F.2d 184, 187 (9th Cir.1938), cert. denied, 306 U.S. 659, 59 S.Ct. 788, 83 L.Ed. 1056 (1939)) (emphasis court’s). Yet, by giving Bianchi the benefit of a disability from which he was not suffering when his causes of action accrued, the court’s holding runs against the plain language of sections 4.16.190 and 4.16.250. We should not rely on the “purpose” of statutes when to do so requires rendering meaningless unambiguous words. See Tennessee Valley Auth. v. Hill, 437 U.S. 153, 184 n. 29, 98 S.Ct. 2279, 2296 n. 29, 57 L.Ed.2d 117 (1978) (“When confronted with a statute which is plain and unambiguous on its face...., it is not necessary to look beyond the words of the statute.”) (emphasis removed); Central Montana Elec. Power Coop. v. Administrator of the Bonneville Power Admin., 840 F.2d 1472, 1478 (9th Cir.1988) (“We avoid any statutory interpretation that renders any section superfluous and does not give effect to all of the words used by Congress.”).
Kenneth A. BIANCHI, Petitioner-Appellant, v. James BLODGETT, Superintendent, Washington State Penitentiary; Department of Corrections of the State of Washington; Department of Corrections of the State of California, Respondents-Appellees.
No. 89-35816.
United States Court of Appeals, Ninth Circuit.
Argued and Submitted Nov. 5, 1990.
Decided Jan. 31, 1991.
Paul J. Lyon, Walla Walla, Wash., for petitioner-appellant.
John M. Jones, Deputy Atty. Gen., Olympia, Wash., Sharlene A. Honnaka, Asst. Atty. Gen., Los Angeles, Cal., for respondents-appellees.
Before SCHROEDER, FLETCHER and FARRIS, Circuit Judges.
[OPINION BY FLETCHER, Circuit Judge: type=majority]
FLETCHER, Circuit Judge:
Kenneth Bianchi appeals the district court’s dismissal without prejudice of his petition for habeas corpus.
BACKGROUND
On October 19, 1979, petitioner pleaded guilty to two counts of murder and was sentenced to two consecutive life terms by the Superior Court of the State of Washington for Whatcom County. On October 22,1979, in the Los Angeles County Superi- or Court, petitioner pleaded guilty to five counts of murder, one count of conspiracy to commit felonies, and one count of sodomy. Petitioner was sentenced by the California court to prison for life as to all counts except sodomy, for which he received a five-year term. The California judge ordered the .various California sentences merged into one life sentence for murder, which in turn, under California law, he ordered merged into the sentences imposed by the State of Washington.
Both pleas were entered pursuant to a single plea agreement executed by the petitioner, his attorneys from both states, and the authorities of both states. In exchange for his guilty pleas petitioner received dismissal of other charges, a maximum potential sentence of life rather than death, the possibility of parole, and the possibility of serving his California sentence first in California (as petitioner desired). The last benefit concerning the location of confinement was conditioned on the petitioner testifying fully and truthfully in the trial of Angelo Buono, with whom he had committed the Los Angeles murders.
The plea agreement specified that the two Washington life sentences were to be consecutive. It did not so specify as to the California sentences, but consecutive life sentences were not available under the law of California at that time. Act of 1872, Cal.Penal Code § 669, as amended 1941 Cal.Stat. c. 742, p. 2262, § 1 and 1943 Cal. Stat. c. 219, p. 1122, § 1; People v. Sewell, 20 Cal.3d 639, 574 P.2d 1231, 143 Cal.Rptr. 879, 880 (1978). The agreement likewise did not expressly address the relation between the two states’ sentences. Paragraph 9B of the plea agreement makes clear, however, that the parties anticipated that the two sentences would not be perfectly overlapping. It describes the outcome should the defendant fail to testify in Buono’s trial as agreed, and indicates that “he shall be returned to the State of Washington to complete the sentence he received [there] .,. prior to returning again to the State of California to complete the sentence he received in Los Angeles.”
The California sentencing court did not use the words “concurrent” or “consecutive” in its judgment. The judge announced orally that “[b]y operation of law, section 669 of the Penal Code, all of the subsequent counts are merged in (sic) the matter of law. And in the life sentence ordered on Count VI of the information, the first count in which you pleaded guilty, the sentences are also [as] a matter of law merged into the sentence imposed in the State of Washington.” The written sentencing form likewise indicates that all of the California sentences were merged into Count 6 and that the California life sentence was then merged into the sentences imposed by the State of Washington.
Following the trial of Angelo Buono, the prosecutor made a formal determination that the petitioner had not testified fully and truthfully against Buono. The trial judge in Buono’s case reviewed and affirmed that determination on January 9, 1984, and ordered the petitioner remanded to the State of Washington to serve his sentence as specified in the plea agreement. On February 1,1984, the California Department of Corrections filed a detainer with the Washington Corrections Center indicating that Bianchi was “wanted by the California Department of Corrections ... [because he had been] released to [Washington] for the service of concurrent sentences between California and [Washington].” The detainer ensures that if Washington authorities ever release Bianchi from their custody, he will be turned over to California to complete the California life sentence. Thus, both states would have to grant parole or clemency in order for Bian-chi to be released from custody.
Bianchi argues that the premise of the detainer is contrary to the California sentence, which he contends was neither concurrent nor consecutive. According to petitioner, the effect and intended effect of the California sentencing judge’s order that the California life sentence be merged into the Washington sentences was that the California sentence would be precisely satisfied by the Washington sentence. In petitioner’s view, the California sentence ceased to exist as a separate basis for detaining him, leaving the State of Washington as the sole authority with power to grant parole, clemency or otherwise terminate his sentence. He asserts in his petition for habeas corpus that California, by way of the detainer, seeks to impose a sentence on him greater than that allowed by the terms of the plea agreement and the California sentencing court; that the plea agreement has thus been breached by both California and Washington; and that his guilty pleas in both states are therefore void because he was not fully advised of the consequences of his pleas thereby violating his rights under the Due Process Clause of the Fourteenth Amendment.
Petitioner attempted to challenge the de-tamer using the procedures provided by the Interstate Agreement on Detainers. However, he was informed by the Washington Department of Corrections that the Agreement and its procedures are inapplicable because they apply only to untried charges. See Cal.Penal Code §~ 1389-1389.8; Wash. Rev.Code Ann. § 9.100.010. Petitioner has not raised any of the claims set out in his habeas corpus petition in either the Washington or California state courts. The district court dismissed the petition without prejudice because it challenged the judgments of two different states in violation of Rule 2(d) of the Rules Governing Section 2254 Cases, 28 foll. § 2254 Rule 2(d). The petitioner filed a timely notice of appeal and we issued a certificate of probable cause to appeal pursuant to 28 U.S.C. § 2253. We have jurisdiction to review the district court's order and judgment dismissing the habeas corpus petition under 28 U.S.C. § 1291.
DISCUSSION
The decision whether to grant or deny a petition for habeas corpus is generally reviewed de novo. Norris v. Risley, 878 F.2d 1178, 1180 (9th Cir.1989). To the extent that it is necessary to review a district court's findings of fact, the clearly erroneous standard applies. Id. Since the dismissal in this instance rests on procedural grounds which are strictly legal in nature, we review the district court's decision de novo.
Rule 2(d) of the Rules Governing Section 2254 Cases, 28 foll. § 2254 provides:
A petition shall be limited to the assertion of a claim for relief against the judgment or judgments of a single state court (sitting in a county or other appropriate political subdivision). If a petitioner desires to attack the validity of the judgments of two or more state courts under which he is in custody or may be subject to future custody, as the case may be, he shall do so by separate petitions.
28 foIl. § 2254 (emphasis added). The language of the Advisory Committee Note related to Rule 2(d) likewise indicates that the rule is mandatory in nature:
Subdivision (d) provides that a single petition may assert a claim only against the judgment or judgments of a single state court (i.e., a court of the same county or judicial district or circuit).. .. A claim against a judgment of a court of a different political subdivision must be raised by means of a separate petition. (emphasis added)
Bianchi does not dispute that the petition, as it is framed, challenges the judgments of both California and Washington. While the petitioner arguably could have pursued the principal relief he seeks-removal of the detainer-by challenging only the California judgment, he has not chosen to do so, and the district court properly found that absent an indication by the petitioner that he elected to pursue the claim against one or the other state, the court could not substitute its own judgment on that question. Petitioner offers two lines of argument as to why dismissal was not required under Rule 2(d).
First, as he did in the district court, petitioner cites a number of authorities indicating that he can challenge his California conviction in the district court in the location of his confinement (i.e., Western Washington), that he must name his Washington custodian as respondent, and that he may also name the California attorney general. While these three propositions are undoubtedly true, they are simply irrelevant to the applicability and effect of Rule 2(d), which concerns neither the location of the petition nor the parties to be named, but the multiplicity of jurisdictions whose judgments are being challenged in a single petition. Petitioner makes a related argument that because California appeared in the case (for purposes of moving to dismiss on exhaustion and Rule 2(d) grounds), it “named itself a real party in interest” and thus waived the limitations of Rule 2(d). This argument is equally unavailing. Again, petitioner erroneously confuses the capacity to have two different states as respondents with the capacity to challenge the separate judgments of two states in one petition.
Second, the petitioner argues that judicial efficiency militates against requiring him to file two separate petitions and to exhaust his remedies against each state separately. He suggests that he may be subjected to conflicting results in the two state court systems, and will be unable to obtain relief from the “combined actions” of Washington and California from either state individually or from separate habeas actions which challenge the judgment of only one state. Finally, he asserts that any eventual state relief would not bind the action of the other state in the same manner and with the same certainty as a federal writ of habeas corpus. Neither the language of Rule 2(d), nor any case law cited by the petitioner, suggests that these arguments provide a basis for exception to that rule.
We note as an initial matter that to the extent that prejudice could result from requiring exhaustion of petitioner’s remedies in both state court systems, it would not arise from the operation of Rule 2(d), which does not even speak to exhaustion of state remedies but simply requires as a procedural matter that the judgment of only one jurisdiction be challenged in each federal habeas petition. Whether the petitioner has adequately exhausted his state remedies and whether he presents one of those “ ‘rare cases where exceptional circumstances of peculiar urgency are shown to exist’ ” such that exhaustion is not required, Rose v. Lundy, 455 U.S. 509, 515-17, 102 S.Ct. 1198, 1201-02, 71 L.Ed.2d 379, quoting Ex parte Hawk, 321 U.S. 114, 117, 64 S.Ct. 448, 450, 88 L.Ed. 572 (1944), or can demonstrate “the existence of circumstances rendering [State corrective] process ineffective to protect [his rights],” 28 U.S.C. § 2254(b), is not before us. The district court dismissed the petition based solely on Rule 2(d) and we therefore address ourselves to petitioner’s arguments regarding judicial inefficiency, potential conflict and prejudice as they relate to that rule.
There is no evidence in the statute itself or its legislative history to indicate that Congress considered the existence of inter-jurisdictional plea agreements and their effect on the applicability of Rule 2(d). Likewise the parties cite, and we have found, no reported cases applying and interpreting Rule 2(d) in the context of an interjurisdic-tional plea agreement. Indeed, there is very little case law of any kind interpreting and applying Rule 2(d). Two courts in the Western District of Missouri recently applied Rule 2(d) and dismissed petitions on the grounds that they challenged judgments of different courts in violation of the rule. See Mudd v. Armontrout, 1988 WL 222711, 1988 U.S.Dist. LEXIS 7057, No. 88-0628-CV-W-8-P, slip op. July 11, 1988 (dismissing without prejudice a habeas petition which challenged convictions and sentences of two different counties); Ferguson-Bey v. Higgins, 1988 WL 222715, 1988 U.S.Dist. LEXIS 7108, No. 88-0546-CV-W-5-P, slip op. July 8,1988 (dismissing from a habeas petition a claim which sought to attack the judgment of a different court which had been used in the primary conviction to classify the petitioner as a persistent offender); see also, United States ex rel Holleman v. Duckworth, 592 F.Supp. 1423 (N.D.Ill.1984) (noting in a habeas petition challenging a conviction based on violation of the Interstate Agreement on De-tainers that petitioner “properly ... made separate collateral attacks on his convictions” and citing Rule 2(d)), rev’d on other grounds, 770 F.2d 690 (7th Cir.1985). What little case law exists applies Rule 2(d) strictly.
In addition to the fact that neither the language of the rule nor the case law recognizes an exception based on inefficiency, the possibility of prejudice, conflict between courts, or inadequacy of relief where separate petitions are brought, petitioner’s arguments are simply unpersuasive. Petitioner’s efficiency argument is without merit. If the need for judicial efficiency provided a basis for circumventing habeas corpus procedural requirements such as Rule 2(d), the exception would swallow the rule; it would always be more efficient from the petitioner’s standpoint to file a single petition incorporating challenges to the judgments of various jurisdictions. Cf. Duckworth v. Serrano, 454 U.S. 1, 102 S.Ct. 18, 70 L.Ed.2d 1 (1981) (per curiam) (rejecting an exception to the exhaustion requirements for “clear violations” based on judicial economy).
Petitioner’s arguments regarding the potential for conflict and prejudice if he is required to challenge the Washington and California judgments in two separate petitions are likewise unpersuasive on the facts of this case. To the extent that petitioner seeks to remove the detainer, and avoid any confinement by the State of California following his release by Washington, he need attack only the California judgment. See note 4 supra. Petitioner does not challenge the particular effect being given the California detainer by the Washington authorities, just Washington’s routine enforcement of the detainer. Cf. Nelson v. George, 399 U.S. 224, 90 S.Ct. 1963, 26 L.Ed.2d 578 (1970) (holding that petition is properly directed to California authorities where claim is not that North Carolina conviction or detainer were unlawful but that California was giving the de-tainer an impermissible effect by allowing it to affect adversely the probability of petitioner securing parole). Since petitioner need challenge only the California judgment to obtain the detainer relief, he can do so in a single petition, which would render Rule 2(d) irrelevant.
As set out above, petitioner also claims that his convictions are invalid because both California and Washington breached the joint plea agreement, thus rendering his pleas “involuntary.” Even assuming that Bianchi’s claims regarding breach of the joint plea agreement are colorable, he would sustain no prejudice by the requirement that he file two separate habeas petitions in conformity with Rule 2(d). After exhausting his state remedies, and assuming neither state grants relief, Bianchi would be required by Rule 2(d) to file two separate habeas petitions, both of which could be brought in the district of confinement. There are a number of devices which the district court might use to consolidate or relate the two petitions so that they could be heard by a single district judge, thus eliminating any potential conflict, inefficiency or prejudice. Even if the petitions were not so consolidated, the findings of the first court might be binding on the second court as a matter of collateral estoppel or res judicata, or the second court might simply defer to the factual findings of the first. At a minimum, any inconsistencies in the findings and holdings of the two district courts could be resolved by this court on appeal.
Because the language of Rule 2(d) is mandatory in nature and petitioner has neither demonstrated any prejudice he will suffer by complying with the rule, nor offered a compelling argument why it should not be applied in his case, we affirm the district court’s application of Rule 2(d) and its dismissal of the petition without prejudice.
AFFIRMED.
The petitioner has not challenged that determination and it is not before the court in the present petition.
While we cannot and do not reach the merits of petitioner’s arguments, he may benefit from our observation that he relies erroneously on the current version of Cal.Penal Code § 669, which is inapplicable to crimes committed prior to January 1, 1979. (The California murders to which Bianchi pled guilty took place in 1977 and 1978.) This error appears to be the genesis of petitioner's confusion over the meaning of the term "merged” in his sentence and under California law. The version § 669 applicable to the petitioner provided in relevant part: When any person is convicted of two or more crimes ... if the punishment for any of said crimes is expressly prescribed to be life imprisonment, whether with or without the possibility of parole, then the terms of imprisonment on the other convictions, whether prior or subsequent, shall be merged and run concurrently with such life term, (emphasis added) Act of 1872, Cal.Penal Code § 669, as amended 1941 Cal.Stat. c. 742, p. 2262, § 1 and 1943 Cal.Stat. c. 219, p. 1122, § 1 (further amended 1978, 1985, 1987 and 1988). For a complete history of the section and its amendments, see Historical Note, Cal.Penal Code § 669 (West 1988).
See Braden v. 30th Judicial Circuit Court of Ky., 410 U.S. 484, 495, 499 n. 15, 93 S.Ct. 1123, 1129, 1131 n. 15, 35 L.Ed.2d 443 (1973) (holding that a petition challenging the validity of a future custody of another state can be filed either in the district of confinement or the district of the challenged judgment and discussing requirement that the custodian be named as respon- dent); 28 foil. § 2254, Rule 2(b) (requiring petitioner challenging future custody to name the officer having present custody as well as the attorney general of the state in which challenged judgment was entered).
Petitioner’s determination to attack both judgments appears to arise in part from his mistaken notion that in order to prevent enforcement of the detainer, he must somehow restrain Washington officials in addition to obtaining relief from California. Washington, however, has no independent interest in the detainer, and, indeed, could not enforce a California detainer which was based on a sentence determined to be void by a California or federal court. Put more simply, if the petitioner were to prevail against California, the detainer could no longer exist since there would be no additional sentence to serve in California and no basis for requesting Washington to detain the petitioner on California’s behalf.
We note as well that it is the states — and not Bianchi — who are likely to be prejudiced by the requirement that petitioner separately exhaust his remedies in each state. Prejudice could only arise if one state granted relief while the other did not. If both states grant relief then there is no need for a federal habeas petition and nothing to be prejudiced; if neither grants relief, petitioner would be in the same position he is now. However, if one state invalidates the joint plea agreement, Bianchi will have an additional — and quite persuasive — argument on federal habeas that it is unconstitutional for the remaining state to enforce half of an interjurisdictional plea agreement which he entered into as a package deal. .Although the magistrate’s "Report and Recommendation” which was adopted by the district court noted that Bianchi had not exhausted his California remedies and would be required to do so before presenting his claims in federal court, even if he properly reframed a petition directed at the judgment of only one state court as required by Rule 2(d), the district court did not rely on petitioner’s failure to exhaust as a basis for dismissal.
We do not here decide that Rule 2(d) is mandatory in every instance and may never be waived, but hold that the facts of this case do not warrant an exception to Rule 2(d). It is conceivable that a petitioner challenging an in-terjurisdictional plea agreement or proceeding might be able to show such prejudice from strict enforcement of Rule 2(d) that waiver of the rule would be required to comport with due process. This is not such a case.