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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. ยง 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 ...

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