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United States District Court, N.D. California

February 11, 2004.

ANTHONY NEWLAND, warden, Respondent

The opinion of the court was delivered by: SUSAN ILLSTON, District Judge


The petition for writ of habeas corpus is dismissed because it is procedurally barred.




  Stephen Dossman, a prisoner at the California State Prison-Solano, filed a pro se petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254. Now before the court is respondent's renewed motion to dismiss the petition as procedurally barred. Dossman has opposed the motion. For the reasons discussed below, the Court will grant respondent's motion and dismiss the petition.


  Dossman was convicted in 1991 in the Contra Costa County Superior Court of murder, attempted murder, shooting at an inhabited dwelling, shooting at an unoccupied motor vehicle, assaulting a police officer with an assault weapon, possession of a firearm by an ex-felon, and transportation of an assault weapon. Various sentence enhancements also were alleged, and all were found to be true. He was sentenced to terms of 25 years to life plus 25 years and eight months in prison. Page 3

  Dossman appealed his conviction, and the California Court of Appeal modified and affirmed the conviction on April 23, 1992. Dossman did not seek review of the decision in the California Supreme Court.

  Dossman filed five state habeas petitions before filing the present action. Dossman's first petition for writ of habeas corpus raised eleven issues and was filed in the Contra Costa County Superior Court on March 31, 1997, and denied on December 1, 1997. Dossman then raised the same issues in a habeas petition to the California Court of Appeal, which was filed on July 27, 1998, and denied on October 15, 1998. Dossman next raised eight claims before the California Supreme Court in a habeas petition which was filed on February 17, 1999, and was denied with a citation to In re Robbins, 18 Cal.4th 770, 780 (Cal. 1998), on June 30, 1999.

  Dossman later raised a claim of newly discovered evidence before the Contra Costa County Superior Court and the California Supreme Court in unsuccessful petitions for writ habeas corpus. His final state habeas petition to the California Supreme Court was denied without citation or comment on December 21, 1999.

  Dossman filed this action seeking a federal writ of habeas corpus on January 10, 2000. His petition contained nine claims.

  This court earlier ruled on various procedural issues, including the procedural bar issue. Among other things, the court denied respondent's motion to dismiss eight of the claims as procedurally barred. See Order filed Sept. 19, 2001, p. 5.*fn1 Thereafter, the law changed and the procedural bar ruling had to be reconsidered. Counsel was appointed for petitioner for purposes of presenting petitioner's procedural bar argument. The parties have now briefed the procedural bar issue in light of current Ninth Circuit authority. The matter is now ready for the court to visit the procedural bar issue again in this case. Page 4


 A. Procedural Bar

  A federal court will not review questions of federal law decided by a state court if the decision rests on a state law ground that is independent of the federal question and adequate to support the judgment. Coleman v. Thompson, 501 U.S. 722, 729 (1991). The procedural default doctrine forecloses federal review of a state prisoner's federal habeas claims if those claims were defaulted in state court pursuant to an independent and adequate state procedural rule. See id. at 729-30. To find procedural default it will honor, a federal court must determine that the state court explicitly invoked a state procedural bar as an independent basis for its decision and that the state procedural bar cited was clear, consistently applied and well-established at the time of the petitioner's purported default. See id.; Calderon v. United States Dist. Court (Bean), 96 F.3d 1126, 1129 (9th Cir. 1996), cert. denied, 520 U.S. 1204 (1997). Federal habeas review of the procedurally defaulted claims is barred unless the prisoner can demonstrate cause for the default and actual prejudice as a result of the alleged violation of federal law, or demonstrate that failure to consider the claims will result in a fundamental miscarriage of justice.

  The California Supreme Court rejected Dossman's claims as untimely. The state court's rejection of the claims for the procedural reason requires this court to determine whether California's procedural bar against untimely presentation of claims in habeas ought to be honored here. To make that determination, this court considers whether the bar is independent and adequate and, if so, whether there is a reason (e.g., cause and prejudice or a fundamental miscarriage of justice) not to honor that bar.

  1. California's Untimeliness Bar

  California has a timeliness rule that is applied in practice. The California Supreme Court "insist[s] that a litigant mounting a collateral challenge to a final criminal judgment do so in a timely fashion." In re Sanders, 21 Cal.4th 697, 703 (Cal. 1999). That court "enforce[s] time limits on the filing of petitions for writs of habeas corpus in noncapital cases . . . as well as in Page 5 cases in which the death penalty has been imposed." Id. (citations omitted). The rule is not new. In 1993, the California Supreme Court stated:

Our decisions have consistently required that a petitioner explain and justify any substantial delay in presenting a claim. (In re Swain, [34 Cal.2d 300, 304 (Cal. 1949)]. "It is also the rule that `a convicted defendant must fully disclose his reasons for delaying in the presentation of the facts upon which he would have a final judgment overturned. (In re Wells, [1967] 67 Cal.2d 873, 875 . . . In re Shipp. supra, 62 Cal.2d 547, 553, In re Swain, [supra] 34 Cal.2d 300, 304 . . .)" In re Walker, [10 Cal.3d 764, 774.]
In re Clark, 5 Cal.4th 750, 783 (Cal. 1993). The California Supreme Court explained that its adoption of policies in death penalty cases "did not create or modify the timeliness requirements applicable to all habeas corpus petitions except insofar as they (1) establish a presumption of timeliness if a petition by a capital defendant is filed within 90 days of the final due date for the filing of an appellants reply brief . . . and (2) take into account this court's decision in In re Stankewitz, supra, 40 Cal.3d 391, when evaluating the timeliness of a habeas corpus petition in a capital case." Clark, 5 Cal.4th at 783 (discussing effect of the California Supreme Court Policies Regarding Cases Arising From Judgments of Death, eff. June 6, 1989, mod. eff. December 21, 1992). In other words, no later than 1993, would-be California petitioners in both capital and noncapital cases were on notice that the California Supreme Court required that petitions be filed without substantial delay and, if there was substantial delay, it had to be explained and justified. See, e.g., Clark, 5 Cal.4th at 782 (petitioner filing in June 1989 "who had knowledge that grounds for a habeas corpus petition existed was on notice that any substantial delay in filing a petition after the grounds became known had to be justified"); see also Bennett v. Mueller, 322 F.3d 573, 581 (9th Cir.) (en banc), cert. denied, 124 S.Ct. 105 (2003).

  Robbins discussed the "substantial delay" concept:

  Substantial delay is measured from the time the petitioner or his or her counsel knew, or reasonably should have known, of the information offered in support of the claim and the legal basis for the claim. A petitioner must allege, with specificity, facts showing when information offered in support of the claim was obtained, and that the information neither was known, nor reasonably should have been known, at any earlier time. It is not sufficient simply to allege in general terms that the claim recently was discovered, to assert that second or successive postconviction counsel could not reasonably have discovered the information earlier, or to produce a declaration from present or former counsel to that general effect. A petitioner bears the burden of establishing, through his or her specific allegations, which may be supported by any relevant exhibits, the absence Page 6 of substantial delay. [¶] A claim or a part thereof that is substantially delayed nevertheless will be considered on the merits if the petitioner can demonstrate good cause for the delay. Good cause for substantial delay may be established if, for example, the petitioner can demonstrate that because he or she was conducting an ongoing investigation into at least one potentially meritorious claim, the petitioner delayed presentation of one or more other known claims in order to avoid the piecemeal presentation of claims, but good cause is not established by prior counsel's asserted uncertainty about his or her duty to conduct a habeas corpus investigation and to file an appropriate habeas corpus petition, [¶] A claim that is substantially delayed without good cause, and hence is untimely, nevertheless will be entertained on the merits if the petitioner demonstrates (i) that error of constitutional magnitude led to a trial that was so fundamentally unfair that absent the error no reasonable judge or jury would have convicted the petitioner; (ii) that the petitioner is actually innocent of the crime or crimes of which he or she was convicted; (iii) that the death penalty was imposed by a sentencing authority that had such a grossly misleading profile of the petitioner before it that, absent the trial error or omission, no reasonable judge or jury would have imposed a sentence of death; or (iv) that the petitioner was convicted or sentenced under an invalid statute. When we apply the first three of these exceptions, we shall do so exclusively by reference to state law. When we apply the fourth exception, we apply federal law in resolving any federal constitutional claim.

 Robbins, 18 Cal.4th at 780-81. Robbins' description of the factors the state's highest court considers in looking at a delayed petition shows that understandable parameters for application of the court's untimeliness rule exist, even if the court has not identified a specific number of days to file a petition in order to be timely and has not promulgated a rule or regulation that mechanically lists excuses deemed acceptable for a petition filed after a set number of days.

  2. The Dates For Evaluating The Default

  The court must determine the relevant date for considering whether the application of the rule is independent and adequate. The question of whether the application of a procedural rule was independent of federal law logically is assessed at the time the state court rejects a claim as procedurally defaulted, because the issue is whether the state court decision was based solely on state law. See Park v. California, 202 F.3d 1146, 1153 (9th Cir.), cert. denied, 531 U.S. 918 (2000) ("Robbins is clear . . . that its new approach is prospective, and would not have applied when the California Supreme Court denied Park's habeas petition"). Here, the date for considering the independence of the rule is June 30, 1999, when the California Supreme Court imposed the untimeliness bar against Dossman. See Bennett 322 F.3d at 582 (assessing independence of untimeliness rule at the time the California Supreme Court rejected the state Page 7 habeas petition).

  The question of whether a procedural rule in practice is adequate ordinarily is determined at the time the claim could have been properly raised, not when the claim was ultimately rejected as procedurally barred. See Cockett v. Ray, 333 F.3d 938, 943 (9th Cir. 2003) (finding state procedural rule adequate where it was consistently applied as of the date of petitioner's default, even though it might not have been consistently applied thereafter). However, when a significant amount of time passed after a change in state law and the petitioner still failed to raise his claims in state court, a court can find a procedural default based on the new law. See Bennett 322 F.3d at 579 (claiming that "the common theme of [petitioner's cited] cases is that when the habeas proceeding has been initiated before the Clark/Robbins decisions were announced, the untimeliness rule cannot stand as an independent and adequate state ground barring federal habeas review");*fn2 see, e.g. id. (where petitioner was convicted in 1986 and did not file state habeas petition until 1999, six years after Clark was decided, finding a "continuous post-Clark default"; expressly distinguishing it from "a case in which the petitioner filed his state habeas petition before or very shortly after the Clark decision [issued on July 29, 1993]" and citing case in which petition was filed in May 1994). Dossman's state habeas proceedings began after Clark was decided and his first state habeas petition in the California Supreme Court was not filed until February 1999, six years after Clark was decided. His is a case where "a significant amount of time passed after a change in state law and petitioner still failed to raise his claims in state court" and therefore the court can find a procedural default based on the new Page 8 law. Bennett 322 F.3d at 579.

  3. Untimeliness Rule Was An Independent State Ground

  The next step is to determine whether the procedural bar was an independent state ground. That is easy here because Bennett has already decided that the untimeliness rule was independent after Robbins and Robbins was decided before Dossman's state habeas petition was rejected as untimely by the California Supreme Court. See Bennett, 322 F.3d at 581-83 (finding untimeliness bar independent for prisoner whose state habeas petition was rejected by California Supreme Court in 1999). In Dossman's case, the procedural bar of untimeliness was an independent state ground for the decision.

  4. Untimeliness Rule Was An Adequate State Ground

  The next step is to determine whether the procedural bar was an adequate state ground. To be "adequate," the state procedural bar cited must be "clear, consistently applied, and well-established at the time of the petitioner's purported default." Bean, 96 F.3d at 1129 (internal quotations and citation omitted). The state's actual practice in applying the rule, rather than just its stated rule, must be examined. Powell v. Lambert, No. 01-35809, slip op. 1933, 1951 (9th Cir. Feb. 10, 2004).

  a. Burden of Proof and Guideposts

  Bennett allocates the burden of proof in determining whether a procedural bar has been consistently and regularly applied so that it will meet the "adequate" prong of the "independent and adequate" test for a procedural bar.


Once the state has adequately pled the existence of an independent and adequate state procedural ground as an affirmative defense, the burden to place that defense in issue shifts to the petitioner. The petitioner may satisfy this burden by asserting specific factual allegations that demonstrate the inadequacy of the state procedure, including citation to authority demonstrating inconsistent application of the rule. Once having done so, however, the ultimate burden is the state's.
Bennett, 322 F.3d at 586. Page 9

  Bennett also provided two guideposts for the evidence to be considered in evaluating the adequacy issue: death is different and do not delve into state court records to figure out what happened. On the first point, Bennett criticized the lower court's analysis because the lower court relied on Deere v. Calderon, 890 F. Supp. 893 (C. D. Cal. 1995), which had analyzed the application of California's procedural bar only in capital habeas cases, while Bennett's was not a capital case. "California's rules governing timeliness in capital cases differ from those governing noncapital cases." Bennett, 322 F.3d at 583.

  On the second point, the court explained that the "Deere district court followed a procedure in analyzing the question that is inconsistent with our precedent; it analyzed the basis for the state court decisions denying post-conviction relief based on a post hoc examination of the pleadings and record rather than the text of the state court opinions. While we have not decided, and do not decide this precise issue in this context, our precedent suggests any review should be limited to the language of the state court opinions." Bennett, 322 F.3d at 583-84 (emphasis added).*fn3 Bennett cited two cases in support of this proposition which at the places cited stand for the proposition that a state court order that cites several procedural bars in rejecting several claims without specifying which bar applied to which claims is ambiguous and will not be honored unless all the bars are found to be independent and adequate for all the claims. See Bennett, 322 F.3d at 584 (citing Bean, 96 F.3d at 1131 (refusing to honor procedural bars in California Supreme Court order that did not specify the basis for rejection of each claim when it denied petition with 39 claims on the grounds that the claims were, or unjustifiably were not, raised on appeal, or were waived by failure to preserve them at trial), and Valerio v. Crawford, 306 F.3d 742, 774-75 (9th Cir. 2002), cert. denied, 123 S.Ct. 1788 (2003) (refusing Page 10 to honor procedural bars in state court decision: "By failing to specify which claims were barred for which reasons, the Nevada Supreme Court `did not clearly and expressly rely on an independent and adequate state ground'")). Bean involved two groups of claims that could be identified, so that one could read through the record and figure out which bar applied to which group, but the federal court would not go behind the language of the opinion of the state's highest court to do so. Bennett's citation to Bean and Valerio means that the district court should not be reading through the records or the various filings in state court proceedings to figure out what actually happened and why it did; the district court should instead rely only on the language of state court opinions to figure out whether a procedural rule has been applied in a manner that meets the test for adequacy. Bennett instructs that a district court cannot do its own statistical analysis of the state court's application of the bar and instead needs decisions from California courts in which the court was faced with the procedural issue or in which the California court analyzed the application of the procedural rule to demonstrate its regular or irregular application in practice.*fn4

  In sum, the rules to determine adequacy are: (1) respondent bears the ultimate burden of proof, (2) do not look at the application of the untimeliness rule only in capital cases because the rule is different in those cases, and (3) do not look beyond the text of state court decisions to determine what the state court did.

  b. Application

  Respondent met his burden under Bennett. He identified Dossman's substantial six-year post-Clark delay, pled the existence of an independent and adequate procedural bar, and provided the California Supreme Court's June 30, 1999 order denying Dossman's petition with a citation to Robbins. And respondent cited to Bennett, which recognized that the California Page 11 Supreme Court set out in 1993 a definite rule of timeliness for prospective application in Clark. See Bennett 322 F.3d at 583. Bennett itself also showed another instance of the California Supreme Court applying the untimeliness bar, albeit after it did so to Dossman. Respondent also cited to Sanders, 21 Cal.4th at 703, a California decision that again identified the California timeliness requirements in capital and noncapital cases. These materials satisfied respondent's burden to put in issue the affirmative defense of procedural bar, i.e., that when the California Supreme Court denied Dossman's habeas petition with a citation to Robbins, California's timeliness/due diligence requirement was established and regularly and consistently applied in practice.

  Respondent contends that Carey v. Saffold, 536 U.S. 214 (2002), supports his position, but respondent reads far too much into Saffold. Saffold did not address the adequacy of California's timeliness rule concerning the timeliness of a state habeas petition following the conclusion of direct review or following the discovery of the factual basis of the claim; rather, Saffold concerned California's unusual practice of allowing original habeas petitions at all three levels (superior court, court of appeal, and state supreme court) rather than the normal state practice that required appellate review of lower state court decisions on habeas petitions rather than original jurisdiction at all three levels for state habeas petitions. Unlike respondent, this court does not believe Saffold amounted to a stamp of approval of all aspects of California's state habeas system or its timeliness rules. Saffold offers little to aid this court's analysis of California's rule regarding the timeliness of Dossman's petition.

  Respondent adequately pled the existence of an independent and adequate state procedural ground as an affirmative defense and thus the burden shifted to Dossman "to place that defense in issue." Bennett, 322 F.3d at 586. Dossman could satisfy this burden "by asserting specific factual allegations that demonstrate the inadequacy of the state procedure, including citation to authority demonstrating inconsistent application of the rule." Id. Dossman's showing is inadequate. Page 12

  In his pro se opposition brief, Dossman lists several case citations which purportedly I demonstrate "that the state court's (sic) are not consistently or regularly applying it's (sic) timeliness bar." Pro Se Opposition, p. 22. His cited cases do not aid him because one of the Bennett guideposts specifically directs the district court to look at the language of the state court decisions rather than to go behind the summary orders and examine the pleadings and records in state court to attempt to reconstruct the state court's decision-making process. None of the cases cited by Dossman had an opinion that explained the operation of the timeliness rule in it. Bare denials do not prove or disprove that the California Supreme Court consistently applied the timeliness rule after Clark. Cf. Powell v. Lambert, slip op. at 1946-51 (examining the text of published and unpublished decisions by Washington state courts to look at the application of the rule in practice). Even if the court could look beyond state court opinions to evaluate the actual application of the rule, the cases do not help Dossman. First, there is no proof of the date on which the direct appeal concluded in each of the cases so that one can determine whether there was in fact a delay before the filing of the state habeas petition in Sampson, Davis, or Villegas — Dossman's assertions are not proof. Second, there is no evidence concerning whether any excuse was offered to explain the delay, so one cannot figure out how the rule was applied in practice in each of these cases as well as in Romero. Third, the information provided regarding the Bautista case does not establish inconsistent application as there is no showing that the court ignored its untimeliness rule rather than found that the substantial delay had been satisfactorily explained.

  The materials submitted by Dossman's appointed counsel fare no better because they cannot be considered under the other Bennett guidepost, i.e., that California's untimeliness rule for capital habeas cases is different from its rule for noncapital cases and therefore cannot be used as the only proof of inconsistent application. Bennett, 322 F.3d at 583. Dossman's cited cases of Morales v. Calderon, 85 F.3d 1387 (9th Cir. 1996), Karis v. Vasquez, 828 F. Supp. 1449 (E.D. Cal. 1993), Coleman v. Calderon, C 89-1906 (N.D. Cal. 1996), Ashmus v. Woodford, C 93-594 (N.D. Cal. 1999), and Clair v. Calderon, C93-1135 (S. D. Cal. 1997), are all capital cases and do not satisfy Dossman's burden. Moreover, the Morales and Karis cases are too old Page 13 because in each the California court issued its decision before the Clark decision.

  Dossman next argues that he showed "good cause for the delay" by demonstrating an ongoing investigation. Pro Se Opposition Brief, pp. 8-13. He misunderstands the inquiry. The federal court does hot re-decide whether the state petition was untimely, but rather whether the untimeliness bar was independent and adequate. See Poland v. Stewart 169 F.3d 573, 584 (9th Cir.), cert. denied, 528 U.S. 845 (1999). And Dossman's argument that California's untimeliness rule is not adequate because that court often imposes a procedural bar while also considering the merits of a case does not persuade because the "state court's application of a procedural rule is not undermined where, as here, the state court simultaneously rejects the merits of the claim." Bennett, 322 F.3d at 580.

  California's procedural rule concerning untimeliness was described in Section 1 above. Although the rule does not identify the exact number of days by which a state habeas petition must be filed or contain an exhaustive list of allowable reasons to file later than a set number of days after the conviction becomes final, it satisfies the requirement that it be adequate in practice. The fact that the rule involves the use of judicial discretion does not necessarily make it inadequate. Discretion does not equal inconsistency in the application of a rule. See Wood v. Hall, 130 F.3d 373, 376-77 (9th Cir. 1997), cert. denied, 523 U.S. 1129 (1998) (Oregon's fugitive disentitlement doctrine's discretionary nature did not mean it could not stand as an adequate procedural bar). "[J]udicial discretion may be applied consistently when it entails `the exercise of judgment according to standards that, at least over time, can become known and understood within reasonable operating limits." Id. at 377.*fn5 California's requirement that Page 14 someone do something without substantial delay is hardly unique in the law. Federal courts are regularly called upon to decide questions requiring the court to decide time-related questions without mechanical formulae. For example, the doctrine of laches follows no set calendar, Rule 60(b)(4-6) motions must be "made within a reasonable time," Rule 4(m) allows a plaintiff to avoid dismissal of an action for failure to serve process within 120 days if he "shows good cause for the failure," Local Rule 6-3 requires a request for an extension of time to set forth "with particularity" the reasons therefor and does not identify any set length of time the extension will be, and the habeas courts excuse late habeas petitions when "extraordinary circumstances" support equitable tolling of the deadline. Courts do not refuse to apply these rules because they involve discretionary evaluation of whether a delay has occurred and/or the adequacy of the reason for a delay.

  Finally, it seems highly inappropriate for this court to presume that the norm is that the California Supreme Court's practice is to apply its untimeliness rule in noncapital cases inconsistently or not at all. There is no evidentiary showing that the practice of the California Supreme Court is to not follow its rule in noncapital cases. And there is no general presumption that courts do not follow their own rules or do apply them inconsistently. Indeed, doctrines as diverse as preemption, full faith and credit, abstention and even the law of federal habeas are premised in part on the idea that other courts are competent to decide issues in a reliable manner. Without any evidence showing it, the court will not find that the California Supreme Court's practice was to apply its untimeliness rule in noncapital cases inconsistently.

  Respondent met his initial burden and petitioner did not meet the burden in response. Upon review of the materials in the record and the relevant case authority, and bearing in mind that the ultimate burden of proof is respondent's, the court finds that respondent has satisfactorily established that California's untimeliness rule as applied in practice was an adequate state ground for rejection of Dossman's petition. The untimeliness bar will be imposed against Dossman absent an exception to it. Page 15

 B. Exceptions To The Procedural Bar Do Not Apply

  If, as here, the court finds an independent and adequate state procedural ground, federal habeas review is barred unless the prisoner can demonstrate cause for the procedural default and actual prejudice, or demonstrate that the failure to consider the claims will result in a fundamental miscarriage of justice. See Coleman v. Thompson, 501 U.S. at 750. Dossman tries both approaches.

  1. Cause And Prejudice

  The court may reach the merits of procedurally defaulted claims in which Dossman failed to follow applicable state procedural rules in raising the claims if he shows cause and prejudice to excuse his default. The cause standard requires the petitioner to show that "some objective factor external to the defense" impeded his efforts to comply with the state's procedural rule, Murray v. Carrier, 477 U.S. 478, 488 (1986), or to establish constitutionally ineffective assistance of counsel, McCleskey v. Zant, 499 U.S. 467, 494 (1991). To satisfy the prejudice part of the cause and prejudice test, the petitioner must show actual prejudice resulting from the errors of which he complains. See id.

  Dossman contends that he can show cause and prejudice to excuse his procedural default. After his conviction, Dossman's appellate attorney filed a Wende brief in the California Court of Appeal.*fn6 Dossman urges that counsel's failure to raise any meritorious claims on appeal resulted in Dossman now being faced with an untimeliness bar. Pro Se Opposition Brief, pp. 26-27. He even goes so far as to say he was "powerless to obey the rules." Id. at 27. His argument is utterly unconvincing. The filing of a Wende brief does not necessarily mean that appellate counsel provided constitutionally ineffective assistance. Smith v. Robbins, 120 S.Ct. Page 16 746, 763 (2000). More importantly, Dossman has not shown any causal connection between appellate counsel's alleged deficient performance and Dossman taking so long to file his state habeas petition. Even by Dossman's own reckoning, he did not start investigating his case until June 1994. Pro Se Opposition Brief, p. 10. For the cause-and-prejudice standard, the petitioner must show "cause" for the default, and Dossman has utterly failed to do so. He also has not shown resulting prejudice.

  Because Dossman cannot be helped by the cause and prejudice exception to the procedural default rule, the court considers whether the claims ought to be considered under the miscarriage of justice exception to the procedural default rule.

  2. Miscarriage Of Justice

  The miscarriage of justice exception allows a federal court to hear the merits of the procedurally defaulted claims if the failure to hear the claims would constitute a "miscarriage of justice." See Sawyer v. Whitley, 505 U.S. 333, 339-40 (1992) (citations omitted). In the federal habeas context, the "miscarriage of justice" exception is limited to habeas petitioners who can show that "`a constitutional violation has probably resulted in the conviction of one who is actually innocent.'" Schlup v. Delo, 513 U.S. 298, 327 (1995) (quoting Carrier, 477 U.S. at 496). The required evidence must create a colorable claim of actual innocence, that the petitioner is innocent of the charge for which he is incarcerated, as opposed to legal innocence as a result of legal error. See id. at 321, 329. It is not enough that the evidence show the existence of reasonable doubt; petitioner must show "that it is more likely than not that no `reasonable juror' would have convicted him." Id. at 329.

  "To be credible, such a claim requires petitioner to support his allegations of constitutional error with new reliable evidence — whether it be exculpatory scientific evidence, trustworthy eyewitness accounts, or critical physical evidence — that was not presented at trial." Id. at 324. This does not mean a petitioner need always affirmatively show physical evidence that he did not commit the crime with which he is charged. Gandarela v. Johnson, 286 F.3d 1080, 1086 (9th Cir. 2002), cert. denied, 537 U.S. 1117(2003). A "petitioner may pass through Page 17 the Schlup gateway by promulgating evidence that significantly undermines or impeaches the credibility of witnesses presented at trial, if all the evidence, including new evidence, makes it `more likely than not that no reasonable juror would have found petitioner guilty beyond a reasonable doubt." Id. (quoting Schlup, 513 U.S. at 327).

  Dossman urges that he falls within the actual innocence exception to the procedural default doctrine based on newly discovered evidence that one of the witnesses had blamed Dossman for the murder when she knew it had been committed by another man. His newly discovered evidence is a May 28, 1999 declaration from Darnell Fair, a fellow convict who met Dossman in prison in 1999 and remembered some information purportedly helpful to Dossman. See Petition, Exh. B. Fair's declaration states that one December night nine years earlier he met Shelvetta Rubin in a bar in Oakland and took her to a motel to have sex. Fair declares that Rubin seemed paranoid in the hotel room and told him that she feared her ex-boyfriend "Froggy" and his friend "Worm" because Froggy and his associates were "out to kill her because she knew to [sic] much." Farr Decl., ¶ 14. Farr further declares that Rubin stated that she made a statement to police implicating Froggy in the murder she had witnessed and that during her statement implicating Froggy the police asked her about "Mighty Whitey," which was Dossman's longtime nickname. Rubin purportedly told police that she did not know Mighty Whitey but decided to blame the plan, plot and shooting on him. Rubin purportedly later told Froggy over the phone that she had blamed the murder on Mighty Whitey and that she felt bad that the wrong man was in jail, but was more afraid of Froggy and associates. Shelvetta Rubin was murdered before she could testify against petitioner at trial, although she did testify at the preliminary hearing against Dossman. Dossman claims that Farr's declaration undermines the credibility of Rubin's testimony and that the Farr declaration casts doubt on the accuracy and reliability of his conviction.

  Dossman presented the Farr declaration to the state superior court in an attempt to satisfy the requirement of new evidence of innocence so that his second habeas petition could be considered. The state superior court emphatically rejected the value of the Farr declaration as new evidence of innocence. See Petition, Exh. L. The court noted that Shelvetta Rubin was one Page 18 of the principal witnesses against Dossman: she had been the driver of the car that Dossman allegedly used to take him to the scene of the crimes and identified Dossman as the shooter. The state court had this view of the Farr declaration: "The `new' evidence is rank inadmissable hearsay with no indication whatsoever of reliability" Id. at 2.

  Respondent urges that 28 U.S.C. § 2254(d)(2) and § 2254(e)(1) require this court to accept the state court's finding because it was not unreasonable. `Section 2254(d)(2) does not apply because it is limited to claims adjudicated on the merits in state court proceedings, and Dossman's claims were not. Section 2254(e)(1) appears to be the appropriate section for the task at hand: it provides that "a determination of a factual issue made by a State court shall be presumed to be correct. The applicant shall have the burden of rebutting the presumption of correctness by clear and convincing evidence." The state court's factual finding was that the Fan-declaration had "no indication whatsoever of reliability." Petition, Exh. L, p. 2. That finding was reasonable and will not be disturbed by this court because Dossman has not rebutted the presumption of correctness. Generally, witness credibility and truthfulness are matters of state law and the federal court does not determine witness credibility. See Knaubert v. Goldsmith, 791 F.2d 722, 727 (9th Cir.), cert. denied, 479 U.S. 867 (1986): see generally Sumner v. Mata, 449 U.S. 539, 546-47 (1981). Even if this court was considering the matter without any need for deference to the state court's decision, it would reach the same conclusion that Dossman has not provided evidence that satisfies the test to come within the miscarriage of justice exception to procedural default or warrant an evidentiary hearing to explore it further.

  The declaration is suspect in that it is signed by a convicted felon, was prepared a decade after the event it purports to record, and recounts the event with specificity that simply is not believable. Farr purports to remember the specifics of a conversation a decade earlier with a stranger he had brought to a hotel room for sex (after drinking and smoking marijuana) — hardly a backdrop that evokes an image of a man in a crime-solving mood. Yet Farr claims to remember details such as the woman's name, her ex-boyfriend's name, her ex-boyfriend's friend's name, her mention of Dossman by his nickname, details about the crime, details of the woman's efforts to shift blame from one person to another, and details of the woman's efforts to deal with Page 19 her ex-boyfriend after doing so. Frankly, it is unbelievable that anyone would recall all this information a decade after the event under the circumstances. And, of course, a declaration that attributes statements to a dead person (contradicting the dead person's earlier sworn statement) has a certain level of inherent suspiciousness. Also, since the encounter allegedly occurred after Rubin had testified at the preliminary hearing against Dossman, it would have made more sense that she feared Dossman than the man she had not identified at the preliminary hearing as the killer. And the declaration was hearsay. See Herrera v. Collins, 506 U.S. 390, 417 (1993) (affidavits purporting to show innocence that consist of hearsay are "particularly suspect").

  The declaration also contains little new information about the crime. The jury had heard that Shelvetta Rubin originally told the police that the shooter's name was Froggy. The jury rejected the contention that Dossman was not the perpetrator when it found him guilty beyond a reasonable doubt. Rubin's initial story about Froggy — already heard by the jury — would not be greatly enhanced by information that she had relayed it to a stranger during a tryst before she was killed. The defense investigator attempted to investigate the connection of Froggy to the crime and never found a person named Froggy. One individual with a similar name, Lamont Foggy, was reported by an individual to the defense investigator not to be "Froggy." Petition, Exh. D report at June 4, 1992 entry. Finally, Rubin was not the only witness who identified Dossman as the shooter: Lisa Brown was present at the scene of the crime — she was with her friend who was shot and killed — and also identified Dossman as the shooter. Dossman's procedural default will not be excused under the miscarriage of justice exception.

 C. Petitioner's Pro Se Opposition Brief And Motion To Strike Counsel's Brief

  Counsel was appointed to represent Dossman in connection with the procedural default question. The appointment was made after Dossman moved for such an appointment on June 20, 2003. Dossman thereafter became disgruntled with appointed counsel's efforts. On October 28, 2003, appointed counsel filed an opposition to respondent's motion to dismiss and on November 10, 2003, Dossman filed a pro se opposition to respondent's motion to dismiss. Respondent moved to strike Dossman's pro se opposition brief. The court granted respondent's Page 20 motion, explaining that"[o]nce counsel is appointed, the represented litigant cannot continue to file briefs pro se." Nov. 10, 2003 Order. The court also directed Dossman not to file any more documents pro se as long as counsel represented him. Id. Several weeks later, Dossman filed pro se a "Motion Requesting The Opposition Filed by Appointed Counsel Be Stricken." He did not serve a copy of the motion on appointed counsel. In the motion, Dossman complained that appointed counsel did not incorporate Dossman's arguments in the brief she filed and that Dossman and appointed counsel had a conflict. Dossman asked the court to strike appointed counsel's brief and to allow him to refile the pro se opposition brief he filed on November 10, 2003.

  Rather than needlessly prolong the litigation, the court has determined to do the following. The court has read Dossman's pro se opposition brief as well as appointed counsel's opposition brief in considering the procedural bar issue, considering both as though both were properly filed. Dossman's pro se brief does not alter the court's conclusion that his claims are procedurally barred. (Had Dossman's pro se brief raised a serious question about the resolution of the procedural bar issue, the court certainly would have given respondent the opportunity to reply to that particular brief which previously had been stricken and as to which respondent did not reply.) The court DENIES the motion to strike appointed counsel's opposition brief for several reasons. First, Dossman did not serve the motion on appointed counsel and the court would not find that his version of the facts was true without giving counsel an opportunity to be heard. But that problem need not be investigated because Dossman has obtained at least as good a result as if he had prevailed on his motion (i.e., both briefs were considered). Second, the brief was properly filed by appointed counsel at a time when she was the attorney of record. Third, if the court struck appointed counsel's opposition brief without accepting in its place Dossman's pro se opposition brief, respondent's motion would be considered unopposed. In sum, the court has read and considered Dossman's opposition brief in deciding the motion to dismiss, but refuses to strike appointed counsel's brief. Page 21

  In light of Dossman's claimed conflict with his appointed attorney, Dossman's filing of a motion pro se after the court told him he could not file pro se documents as long as counsel represented him, and the court's limited appointment of counsel for Dossman (i.e., counsel was appointed only in connection with the procedural default question, which has now been decided), the court makes clear that attorney Claire Leary's appointment as attorney for Dossman is now terminated. Dossman is on the service list for this order and Leary need take no further action in this case and will not be compensated for any further action.


  For the foregoing reasons, the court GRANTS respondent's motion to dismiss. (Docket # 76.) The petition for writ of habeas corpus is dismissed. Petitioner's motion to strike the opposition filed by his appointed counsel is DENIED. (Docket # 91.) The clerk shall close the file.

  For the service of this order, the clerk will send a copy to the Attorney General's office, to Dossman and to his appointed attorney, Claire Leary. The clerk will then update the docket sheet to replace Dossman appearing pro se instead of being represented by attorney Leary.


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