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March 29, 1995

ARTHUR CALDERON, in his capacity as Warden of California State Prison at San Quentin, Respondent.

The opinion of the court was delivered by: CHARLES A. LEGGE



 Petitioner James Richard Odle is a prisoner of the State of California, in state custody under sentence of death. He first sought habeas relief in this court in 1988. After briefing, argument and a review of the state-court record and the applicable legal authorities, the court denied the seven claims in his original petition. See Odle v. Vasquez, 754 F. Supp. 749 (N.D. Cal. 1990).

  Odle moved for reconsideration. Before this court ruled on that motion, the United States Supreme Court decided McCleskey v. Zant, 499 U.S. 467, 113 L. Ed. 2d 517, 111 S. Ct. 1454 (1991), which substantially limited the ability of habeas petitioners to raise new claims in a subsequent petition. In light of McCleskey, the court allowed Odle to amend his then-pending first petition, which had not become final. Odle then took several years to exhaust his new claims in state court, and then returned to this court with an amended petition raising 56 claims. *fn1" This order is the first to rule on the merits of the claims in the amended petition. *fn2"


 The case is now before the court on a motion by respondent for summary judgment as to petitioner's claims. The court held a hearing on April 28, 1994, and orally granted summary judgment on claims M, N, R, T, V, X, Y, Z, AA, CC, EE, FF, GG, LL, WW, XX, ZZ and AAA. *fn3"

 Following that hearing, the parties agreed that certain additional issues could be submitted for decision on the record without oral argument. The court has now considered those issues and grants summary judgment on claims U, W, BB, DD, II, JJ, MM, NN, OO, QQ, RR, SS, TT, UU and BBB as well.

 This order states the reasons for this court's decisions.


 The state asserts, as a basis for summary judgment on numerous claims, that Teague v. Lane, 489 U.S. 288, 103 L. Ed. 2d 334, 109 S. Ct. 1060 (1989), precludes federal habeas relief. Specifically, respondent argues that Odle seeks relief that is barred by Teague because it would require this court to apply a new rule of criminal procedure. Odle responds that the state has not met its burden on summary judgment of showing that Teague bars relief on his claims as a matter of law.

 The United States Supreme Court held in Teague that new rules of criminal procedure generally may not be announced or applied on federal habeas corpus review. Teague, 489 U.S. at 307. The Court has developed a three-step analysis to determine whether a petitioner's claim seeks to apply a new rule retroactively. See Caspari v. Bohlen, 127 L. Ed. 2d 236, 114 S. Ct. 948, 953 (1994). First the date on which petitioner's conviction and sentence became final must be determined. Second, the state of the law must be surveyed to determine whether, at the time the conviction became final, a state court "would have felt compelled by existing precedent to conclude that the rule [petitioner] seeks was required by the Constitution." Saffle v. Parks, 494 U.S. 484, 488, 108 L. Ed. 2d 415, 110 S. Ct. 1257 (1990). Third, if the petitioner seeks to apply a new rule, it must be determined whether the rule comes within either of two narrow exceptions to Teague. It is clear from a review of the cases that have addressed retroactivity that the Teague analysis is complex. See, e.g., Graham v. Collins, 122 L. Ed. 2d 260, 113 S. Ct. 892 (1993); Stringer v. Black, 503 U.S. 222, 112 S. Ct. 1130, 117 L. Ed. 2d 367 (1992); Penry v. Lynaugh, 492 U.S. 302, 106 L. Ed. 2d 256, 109 S. Ct. 2934 (1989).

 Because respondent seeks summary judgment, it carries the burden of proof. To prevail, it must "show that [it] is entitled to a judgment as a matter of law" on the basis of Teague. Fed. R. Civ. P 56(c). To make the requisite showing, respondent must conduct the analysis set forth in Caspari and other Supreme Court cases following Teague.

 Respondent has determined when Odle's judgment became final for purposes of Teague. See Memorandum of Points and Authorities in Support of Motion for Summary Judgment at 11. Beyond that, respondent raises Teague in one or two sentences after discussing the merits of many of Odle's claims. *fn4" See e.g., Memorandum of Points and Authorities in Support of Motion for Summary Judgment at 23, 52, 53, 56, 63, 68, 72-77, 93-95. Respondent has not outlined the state of the law relevant to Odle's claims at the relevant time. It has not analyzed the claims it seeks to bar in light of the applicable law at that time. Respondent has not discussed whether Odle's claims fall within either Teague exception.

 Because respondent has not satisfied this court of its analysis required by Caspari, the state has not met its burden on summary judgment. Its motion on Teague grounds is therefore DENIED without prejudice.


 Respondent argues that Odle has procedurally defaulted many of the claims presented in his amended petition. Odle maintains that the claims are not procedurally defaulted and, alternatively, that the procedural rules relied upon by the state do not preclude federal habeas review.

 A state procedural rule cannot bar federal habeas review unless it constitutes an independent and adequate basis for the state court's decision. Coleman v. Thompson, 501 U.S. 722, 729, 115 L. Ed. 2d 640, 111 S. Ct. 2546 (1991). Whether a state rule satisfies the independent and adequate requirement is a question of federal law. Johnson v. Mississippi, 486 U.S. 578, 587, 100 L. Ed. 2d 575, 108 S. Ct. 1981 (1988).

 The California Supreme Court order denying Odle's third habeas petition relied both on the merits and on procedural rules. The order stated, "The court has considered each of the 46 claims raised in the third post-appeal petition in this matter (filed May 8, 1992), and denies the entire petition (i.e., claims "A" through "TT") *fn5" on the merits." In re Odle on Habeas Corpus, No. S026511, 1992 Cal. LEXIS 5330 (California Supreme Court, October 28, 1992). In the next four paragraphs of the order, the court issued an alternative procedural ruling, beginning with the statement, "In addition, the court denies claim[s] . . ." and concluding with citations to state case law.

 Under Coleman, this court may not review the merits of Odle's habeas claims if the state court's alternative procedural holdings set forth an adequate and independent basis for its decision.

A procedural default is not "independent" if, for example, the state procedural bar depends upon an antecedent determination of federal law. Similarly, the procedural default is not "adequate" if the state courts themselves bypass the petitioner's default and consider his claims on the merits, if the procedural rule appears to be discretionary, or, ordinarily, if the state fails to assert an interest in compliance with its procedural rules in the petitioner's federal habeas proceedings.

 Harmon v. Ryan, 959 F.2d 1457, 1461 (9th Cir. 1992).

 (1) Reliance on State Procedural Rules

 A federal habeas court may review a claim on the merits unless the state court made a "'clear and express' statement that it relied upon procedural grounds as an alternative holding." Carriger v. Lewis, 971 F.2d 329, 333 (9th Cir. 1992) (en banc) (citing Thomas v. Lewis, 945 F.2d 1119, 1122-23 (9th Cir. 1991)). When the order denying state habeas relief is ambiguous, a federal court will presume that the decision relied on federal law if it fairly appears to rest primarily on federal law or to be interwoven with federal law. Coleman, 501 U.S. at 735; Thomas, 945 F.2d at 1122.

 Ninth Circuit law on the independence of alternative procedural holdings, like those at issue in Odle, is still evolving. The circuit has held that the California Supreme Court's denial of a habeas petition without comment or citation is a decision on the merits of the federal claims. A federal court may thus review the merits of habeas claims that the California court denies without comment. Hunter v. Aispuro, 982 F.2d 344, 347-48 (9th Cir. 1992) (citing Harris v. Superior Court, 500 F.2d 1124, 1128 (9th Cir. 1974) (en banc)). On the other hand, when the California Supreme Court denies a habeas petition with a citation to a state procedural rule, it denies the petition on an independent state ground. Hunter, 982 F.2d at 348; Harris at 1128. See also Thomas, 945 F.2d at 1123 (procedural ground is independent when state court discussed Arizona procedural bar then stated, "Even if [Thomas'] claims were not waived, relief would be denied" and considered claim on merits). But cf. Karis v. Vasquez, 828 F. Supp. 1449, 1459 (E.D. Cal. 1993) (state grounds not independent when the order gave reasons, supported by state-law citations, for the default and addressed claims on the merits).

 Following Hunter and Harris, this court concludes that the California Supreme Court's denial of Odle's habeas petition rested on state procedural grounds. As the discussion below indicates, however, the state procedural rule relied upon does not preclude federal habeas review on the merits because the California Supreme Court has not applied the rule in a consistent and uniform manner.

 (2) Adequacy of State Procedural Rules

 Adequacy requires that the state procedural rule must be clearly applicable, firmly established and regularly followed and foreseeable. See, e.g., Ford v. Georgia, 498 U.S. 411, 423-24, 112 L. Ed. 2d 935, 111 S. Ct. 850 (1991); James v. Kentucky, 466 U.S. 341, 348-49, 80 L. Ed. 2d 346, 104 S. Ct. 1830 (1984); Ulster County Court v. Allen, 442 U.S. 140, 150-51 nn.8-9, 60 L. Ed. 2d 777, 99 S. Ct. 2213 (1979). See also Dugger v. Adams, 489 U.S. 401, 410 n.6, 103 L. Ed. 2d 435, 109 S. Ct. 1211 (1989) (procedural bar must be "consistently or regularly applied"); Karis, 828 F. Supp. at 1467 (rule must be applied in "vast majority" of cases).

 The California Supreme Court's order in Odle included an alternative ruling denying thirty-one claims because they were not raised on direct appeal. Odle, No. S026511, 1992 Cal. LEXIS 5330 (citing In re Dixon, 41 Cal. 2d 756, 759, 264 P.2d 513 (1953)). At the time of Odle's direct appeal and habeas petition, the California Supreme Court treated Dixon as "merely a discretionary policy governing the exercise of the reviewing court's jurisdiction to issue the writ." See Kimble v. Vasquez, CV 90-4826 SVW (C.D. Cal. August 25, 1993) at 3; Karis, 828 F. Supp. at 1467 and cases cited therein; Murtishaw v. Vasquez, CV 91-508 OWW (E.D. Cal. 1993) at 6-7 and cases cited therein; see also Siripongs v. Calderon, 35 F.3d 1308, 1318 (9th Cir. 1994) (California procedural bars are discretionary and not consistently applied) cert. denied 130 L. Ed. 2d 1127, 115 S. Ct. 1175 (1995). This court agrees with the reasoning of three other district courts that the Dixon procedural rule has not been uniformly and regularly applied by the California Supreme Court. See Kimble; Karis, 828 F. Supp. 1449; and Murtishaw.

 The California Supreme Court recently held that it would construe and apply the Dixon rule more stringently and consistently in the future, virtually admitting that past precedent had been to the contrary. See In re Harris, 5 Cal. 4th 813, 828-34, 855 P.2d 391 (1993). *fn6" The court's plan to apply Dixon more strictly as of 1993 cannot pose an effective procedural bar to issues raised in Odle's habeas petition (decided October 29, 1992) that were not raised on direct appeal (decided in 1988). See Ford, 498 U.S. at 424-25 (procedural rule must be firmly established at the time in question to bar federal habeas review); Siripongs, 35 F.3d at 1318. Because the California Supreme Court did not apply the Dixon rule regularly and uniformly at the time of Odle's direct appeal and state habeas proceedings, the rule is not adequate to bar federal habeas review of Odle's claims.


 This court now turns to the separate analysis of each of the claims resolved in this order.

 Claim R

 Odle claims that his representation was tainted by his co-counsel's conflict of interest. Because co-counsel William Lowe was retained by the Public Defender's Office, Odle argues, Lowe was infected by the office's conflict of interest. The state responds that Lowe was never an employee of the office. For this reason, and because of the type of conflict that permitted the office to withdraw from the case, Lowe's continued representation of Odle does not constitute a conflict of interest, according to the state.

 Lowe was recruited by the Contra Costa County Public Defender's Office specifically to work on Odle's case. *fn7" Lowe assisted Odle's first counsel, Patrick Meistrell of the Public Defender's Office. After Meistrell had been working on the case for about a year, he resigned from the Public Defender's Office because he suffered a relapse of mental illness. 5/5/81 RT 24. The Public Defender's Office then argued that it had a conflict of interest and asked the court for permission to withdraw from the case. 5/8/81 RT 31-32; IV CT 1143. The court granted the Public Defender's request. *fn8" 5/8/81 RT 32. New counsel was then appointed, but William Lowe continued to work on the case. 5/22/81 RT 43; V CT 1521.

 To show a Sixth Amendment violation based on conflict of interest, a petitioner must establish both an actual conflict of interest and an adverse effect on the lawyer's performance. See Cuyler v. Sullivan, 446 U.S. 335, 348, 64 L. Ed. 2d 333, 100 S. Ct. 1708 (1980). A petitioner must show that "some effect on counsel's handling of particular aspects of the trial was 'likely.'" United States v. Miskinis, 966 F.2d 1263, 1268 (9th Cir. 1992) (citing Mannhalt v. Reed, 847 F.2d 576, 583 (9th Cir. 1988)); see also Sanders v. Ratelle, 21 F.3d 1446, 1452 (9th Cir. 1994) (attorney's conduct "seemed to have been influenced by the suggested conflict").

 Odle has not satisfied this test. In declarations submitted to the court, both Lowe and Gagen state that they know of no actual conflict of interest that caused the Public Defender's Office to withdraw from Odle's case. Ex. 34 at 2 (Gagen declaration); Ex. 35 at 4 (Lowe declaration). The conflict was, by Gagen's and Lowe's accounts, between the office and Meistrell. Ex. 34 at 2; Ex. 35 at 3. Furthermore, Odle has not shown how trial counsel's performance was adversely affected by Lowe's earlier work on the case with Meistrell as lead counsel. Based on the law and these undisputed facts, summary judgment is GRANTED in favor of respondent.

 Claim T

 Odle claims that he was denied his right to due process and to a fair trial when the trial court denied his motion to sever the Aguilar and Swartz murder counts. The state responds that Odle has not stated a constitutional violation. Respondent argues that Odle cannot show a due process violation because the evidence of the two murders is cross-admissible.

 A federal habeas court may grant relief on a claim that severance was improperly denied if the joinder rendered the trial fundamentally unfair in violation of constitutional guarantees of due process. Featherstone v. Estelle, 948 F.2d 1497, 1503 (9th Cir. 1991). Whether evidence on one count would be admissible on the other count is relevant to a due process analysis of the denial of a motion to sever. Where evidence is cross-admissible, it is more difficult for a defendant to show that he was prejudiced by a joint trial. See Featherstone, 948 F.2d at 1503.

 It is undisputed that evidence of the Aguilar murder would have been admissible in a separate trial for the Swartz murder. *fn9" This cross-admissibility undercuts Odle's allegations of prejudice to his Swartz murder defense that might have arisen from joinder of the Aguilar offense.

 Furthermore, the trial court instructed the jury to decide each count separately. 23 RT 125. Odle's counsel and the prosecutor both told the jury to consider the crimes separately and discussed the differences between the two murders. 23 RT 37, 55, 67. See Featherstone, 948 F.2d at 1503 (joinder did not violate due process even though evidence would not have been cross-admissible; the jury was instructed to consider the counts separately and the verdict showed that jury discriminated between the counts).

 Based on the trial court's instructions to the jury and the cross-admissibility of the evidence, the court concludes on a summary judgment standard that the joint trial did not violate Odle's right to due process.

 Claim U

 Odle claims that the trial court's failure to instruct the jury that it could not use bad-character evidence violated his right to due process. Specifically, he argues that the trial court did not instruct the jury that it could not use the Aguilar murder to show his predisposition to commit the Swartz murder. *fn10" Because the jury was not so instructed and because the prosecutor used the Aguilar murder to show Odle's predisposition to murder Swartz, Odle argues, the prosecutor's burden of proof for the Swartz murder was impermissibly lightened.

 The state responds that the Constitution does not forbid the use of bad-character or predisposition evidence. *fn11" It also argues that the jury was instructed to consider each offense separately. Furthermore, the state contends, the prosecutor's argument was relevant to the special circumstance for the Swartz murder of killing to avoid lawful arrest.

 Considering the other instructions given and defense counsel's argument, the court concludes that the trial court's failure to instruct on proper uses of predisposition evidence did not violate Odle's right to due process. The court instructed the jury that "each count charges a different offense. You must decide each count separately." 23 RT 125. During argument, trial counsel repeatedly told the jury to consider the two crimes separately and distinguished them. See 23 RT 37, 55, 67.

 Nor did the prosecutor's argument linking the two murders render Odle's trial fundamentally unfair. *fn12" Odle does not dispute that the Aguilar murder was relevant to Odle's motive and intent for the Swartz murder and to the special circumstance of murder to avoid lawful arrest. See Estelle v. McGuire, 502 U.S. 62, 70, 116 L. Ed. 2d 385, 112 S. Ct. 475 (1991) (due process not violated when trial court admitted evidence of victim's prior injuries that was relevant to battered child syndrome). Cf. McKinney v. Rees, 993 F.2d 1378 (9th Cir. 1993) (defendant denied due process when trial court admitted evidence of defendant's fondness for knives that was not relevant to the crime). The prosecutor thus had an evidentiary basis for tying the Aguilar murder to the Swartz murder. The court concludes that his argument did not violate due process.

 For these reasons and based on undisputed facts, the court concludes that due process did not require the trial court to instruct the jury that it could not consider the Aguilar murder as evidence of Odle's predisposition to commit the Swartz murder. Nor did the prosecutor's argument violate due process. Summary judgment in favor of respondent is therefore GRANTED.

 Claim V

 Odle challenges the trial court's decision denying his motion to suppress evidence. The state argues that Stone v. Powell, 428 U.S. 465, 49 L. Ed. 2d 1067, 96 S. Ct. 3037 (1976), bars federal habeas review of this claim. *fn13" Odle argues in response that Stone does not preclude review of his claim because he was denied a full and fair hearing on his Fourth Amendment claim.

 Fourth Amendment claims are not cognizable in federal habeas unless the petitioner was "denied an opportunity for a full and fair litigation of that claim at trial and on direct review." Stone, 428 U.S. at 494. Since respondent has raised Stone as a defense, Odle has the burden of pleading that he was denied a full and fair opportunity to litigate the claim in state court. If Odle had this opportunity, this court need not examine the merits of his Fourth Amendment claim. See Mack v. Cupp, 564 F.2d 898, 901 (9th Cir. 1977).

 Odle claims that his suppression hearing was not full and fair because his attorney at the time, Patrick Meistrell, was incompetent and ineffective. To prevail on such a claim, however, Odle must show both that counsel's performance was sub-standard and that he was prejudiced. See Kimmelman v. Morrison, 477 U.S. 365, 375, 91 L. Ed. 2d 305, 106 S. Ct. 2574 (1986).

 Odle's argument is not supported by the record. Trial counsel's preparation and presentation of the suppression claim was clearly adequate. *fn14"

 Counsel filed a pre-trial motion to suppress evidence under California Penal Code ยง 1538.5 on October 14, 1980. In support of the motion, he filed a twenty-seven-page memorandum of points and authorities challenging the search of the house, van and motel and the validity of three search warrants. CT 891-917. The prosecutor opposed the motion. CT 931-54. During the hearing, counsel made several proper objections, some of which the court sustained. Trial counsel actively examined and cross-examined the six witnesses. RT 78-134. Counsel filed a reply. CT 967-77. The court heard more witnesses and the parties' arguments on October 22, 1980. RT 150-97.

 The trial court denied the motion on January 16, 1981. RT 330. Counsel filed a petition for a writ of mandate, which was denied on March 18, 1981. CT 1112. The issue was not raised on Odle's direct appeal.

 Claim W

 Odle argues that the jury instruction defining reasonable doubt, combined with the prosecutor's argument about the definition, denied him due process. Specifically, he claims that the instruction confused the jury and unconstitutionally lightened the prosecutor's burden of proof because it defined reasonable doubt in terms of "moral evidence" and "moral certainty." The state responds that the instruction does not run afoul of the Constitution and was not reasonably likely to have misled the jury.

 The Supreme Court very recently upheld the constitutionality of California's reasonable doubt instruction in the context of the case before it. See Victor v. Nebraska, 127 L. Ed. 2d 583, 114 S. Ct. 1239 (1994). Although the Court criticized the use of the phrases "moral evidence" and "moral certainty," it held that other instructions given in that case made it clear that the jury must render a verdict based on the evidence.

 Odle's jury was given the same reasonable doubt instruction that the Court criticized but upheld in Victor. *fn15" With the same language used in Victor, Odle's trial court also instructed the jury that it must decide based on the evidence presented, rather than passion or prejudice. 23 RT 94, 95, 97; Victor, 114 S. Ct. at 1246-48.

 Presented here with a reasonable doubt instruction identical to the one upheld in Victor, this court concludes that the instruction did not deny Odle due process. *fn16" Based on Victor and the record in this case, the court GRANTS summary judgment in favor of respondent.

 Claim X

 Odle argues that the court gave the jury an erroneous instruction on implied malice for the Aguilar murder. In particular, Odle maintains that the instruction did not require the jury to find that he was subjectively aware that his conduct was likely to result in death. The state responds that Odle's challenge to the malice instruction does not establish a constitutional violation.

 Odle's argument that the implied malice instruction in itself did not require a finding of subjective awareness may have some merit. But see People v. Dellinger, 49 Cal. 3d 1212, 1217, 264 Cal. Rptr. 841, 783 P.2d 200 (1989) (language of instruction, although outdated, adequately instructs the jury that it must find whether defendant was subjectively aware that his conduct was life-threatening). Based on the facts of this case, however, the court concludes that if the jury applied the implied malice instruction, it also must have found the requisite intent.

 The jury applied the challenged instruction to reach its first-degree murder verdict only if it relied on a theory of lying-in-wait. *fn17" For the jury to have found lying-in-wait, it must have found that Odle intended to cause "bodily harm involving a high degree of probability that it will result in death." 23 RT 117. If the jury applied the implied-malice instruction, then, it necessarily found that Odle was at least subjectively aware that his conduct was likely to result in death.

 The court concludes that the challenged instruction did not violate Odle's right to due process. Summary judgment in favor of respondent is GRANTED.

 Claim Y

 Odle claims that the prosecution's theory of lying-in-wait murder was supported only by the uncorroborated testimony of his accomplice, Bryan Odle. *fn18"

 As respondent points out, corroboration of accomplice testimony is not a federal constitutional requirement. Harrington v. Nix, 983 F.2d 872, 874 (8th Cir. 1993); see also Lisenba v. California, 314 U.S. 219, 225-227, 86 L. Ed. 166, 62 S. Ct. 280 (1941) (Fourteenth Amendment does not bar state from construing and applying laws on accomplice testimony); United States v. Necoechea, 986 F.2d 1273, 1282 (9th Cir. 1993) (accomplice's uncorroborated testimony is sufficient to sustain a conviction unless it is incredible or insubstantial on its face); United States v. Lopez, 803 F.2d 969, 973 (9th Cir. 1986) (evidence was sufficient to support conviction even though accomplice's testimony was the only evidence placing defendant at the scene of the robbery and implicating him in the extortion). Thus, Odle's claim that his murder conviction relies solely on Bryan's uncorroborated testimony does not establish a basis for habeas relief.

 Odle also argues that the jury instruction on accomplice corroboration denied him the right, guaranteed by state law, not to be convicted based solely on accomplice testimony. State-law violations are cognizable on federal habeas review when they arbitrarily deny a defendant a right to which he is entitled under state law. Arbitrary deprivations of state-law entitlements violate a defendant's right to due process. See, e.g., Hicks v. Oklahoma, 447 U.S. 343, 65 L. Ed. 2d 175, 100 S. Ct. 2227 ...

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