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ANDERSON v. HICKMAN

April 23, 2004.

RICKY MITCHELL ANDERSON, Petitioner,
v.
R. HICKMAN, Respondent



The opinion of the court was delivered by: MARILYN PATEL, Chief Judge, District

MEMORANDUM & ORDER Petition for Writ of Habeas Corpus
Petitioner Ricky Mitchell Anderson is an inmate of Mule Creek State Prison in Ione, California, following his conviction for second-degree murder. On September 7, 1999, Anderson filed the instant petition for a writ of habeas corpus, his second in this court, challenging his conviction on the following grounds: 1) improper peremptory challenges by the prosecution in violation of his right to equal protection; 2) judicial misconduct; 3) ineffective assistance of counsel; 4) denial of severance from co-defendant resulting in the violation of his right to a fair trial and denial of due process; 5) prevention of cross-examination of a prosecution witness in violation of his right to confrontation; and 6) denial of a competency hearing. After appeal to the Ninth Circuit and remand, Anderson's second federal habeas petition is again before this court. Having considered the arguments presented and for the reasons stated below, the court enters the following memorandum and order. BACKGROUND

On August 1, 1990, Anderson and his co-defendant, Jesse Morales, were charged with the murder of Benjamin Romero. See Cal. Pen. Code § 187. Both defendants pleaded not guilty. The Contra Costa District Attorney also charged Anderson under Penal Code section 12022(b) with the enhancement of personal use of a deadly and dangerous weapon and alleged that Anderson had a prior serious felony conviction. The defendants were tried together. In January 1991, a jury found Anderson guilty of second-degree murder and found both the dangerous weapon and prior serious felony allegations against him to be true. The jury convicted Morales of manslaughter. In March 1991, the trial court sentenced Anderson to state prison for 21 years: 15 to life for the murder, plus one additional year for the deadly weapon enhancement and five years for the prior serious felony enhancement.

 I. Direct Review

  Anderson appealed his conviction to the California Court of Appeal on April 14, 1991. In his direct appeal, Anderson made three claims: 1) that the prosecution violated Anderson's federal and state constitutional rights to equal protection by using peremptory challenges to exclude African-American and Hispanic jurors; 2) that the trial court erred by failing to sever Anderson's trial from that of his co-defendant; and 3) that the trial court's ruling preventing impeachment of Thomas Hunt violated Anderson's constitutional right to a fair trial. The Court of Appeal considered all three issues and upheld the sentence on December 9, 1992. People v. Anderson, No. A053247 (Cal.App. Dec. 9, 1992). On January 12, 1993, Anderson submitted a petition for review to the California Supreme Court, focusing solely on the issue of the racially-biased peremptory challenges. The California Supreme Court denied the appeal without further opinion on March 10, 1993. People v. Anderson, No. S030700 (Cal.Mar. 10, 1993)(mem.)

 II. Habeas Review

  A. State Habeas Petition

  On July 20, 1994, Anderson filed a pro se habeas petition in California Superior Court, alleging 1) ineffective assistance of counsel; 2) judicial bias and misconduct premised upon comments made by the trial judge; and 3) failure of the trial court to hold a hearing regarding Anderson's competency to stand trial.*fn1 On July 28, 1994, the California Superior Court denied Anderson's petition on the grounds that: 1) Anderson had failed to establish an adequate factual record to support his claims of ineffective assistance of counsel; 2) the single potentially prejudicial comment made by the trial judge was insufficient to support the claim that she had committed prejudicial error; and 3) Anderson failed to establish that he was taking any psychotropic drugs at the time of his trial. People v. Anderson, No. 941301 (Cal. Super. Ct. July 28, 1994). Anderson subsequently submitted a "Motion to Amend to [sic] Writ of Habeas Corpus" in California Superior Court. By this motion, Anderson sought to amend his habeas petition to clarify that he was claiming ineffective assistance of counsel for failure to request a competency hearing; he also sought to add evidence that he was taking psychotropic drugs at the time of his trial. The California Superior Court denied the motion because the exhibit supporting the psychotropic drug claim was not authenticated, legible, or useful in establishing Anderson's contention. See Order re: Motion to Reconsider Writ of Habeas Corpus, People v. Anderson, No. 941301 (Cal. Super. Ct. Aug. 24, 1994).

  On September 12, 1994, Anderson filed a pro se habeas petition in the California Court of Appeal on the same grounds. The California Court of Appeal denied the petition without opinion on September 15, 1994. On October 11, 1994, Anderson filed a petition for review in the California Supreme Court, resubmitting the petition forms from the July 20, 1993, Superior Court habeas proceeding. The California Supreme Court denied the petition for review on the merits on November 16, 1994. In re Anderson, No. S042617 (Cal. Nov. 16, 1994).

  B. Federal Habeas Petitions

  Anderson filed a petition for writ of habeas corpus in this court on December 13, 1994, stating six grounds for relief: 1) improper peremptory challenges by the prosecution; 2) failure of the court to grant severance from his co-defendant; 3) prevention of impeachment of prosecution witness; 4) ineffective assistance of counsel; 5) denial of competency hearing; and 6) bias of the trial judge. Anderson v. California, No. C 94-4267 MHP (Dec. 13, 1994). After a long delay in receiving clarification from Anderson regarding exhaustion of his claims and an administrative mixup in which Anderson filed a new petition rather than amending his then-current petition, the court dismissed Anderson's petition on April 2, 1999, for failure to exhaust two claims pursuant to Rose v. Lundy, 455 U.S. 509, 510 (1982). Those unexhausted claims were: 1) the trial court's failure to grant a motion to sever from Anderson's co-defendant, and 2) the trial court's exclusion of evidence regarding Thomas Hunt's subsequent arrest for assault in an unrelated event three months after Romero's murder.

  After the dismissal of his first federal habeas attempt, Anderson filed a second habeas petition with the California Supreme Court on April 28, 1999. Anderson based the second California Supreme Court habeas petition on the trial court's failure to sever and Hunt's cross-examination. The California Supreme Court denied the petition, citing In re Waltreus, 62 Cal.2d 218, 225 (1965). In re Anderson, No. S078508 (Cal. July 28, 1999).

  Anderson then filed a second federal habeas petition with this court on September 7, 1999,*fn2 on six grounds: 1) improper peremptory challenges by prosecution in violation of his right to equal protection; 2) judicial bias and misconduct; 3) ineffective assistance of counsel; 4) failure to sever trial from co-defendant resulting in the violation of his right to a fair trial and denial of due process; 5) prevention of cross-examination of a prosecution witness in violation of his right to confrontation; and 6) denial of a competency hearing. The court granted the state's motion to dismiss the second federal habeas petition on the grounds that it was time-barred under AEDPA. The dismissal was reversed and remanded by the Ninth Circuit in light of Ford v. Hubbard, 330 F.3d 1086 (2002). Anderson v. Hickman, 52 Fed. Appx. 62, 2002 U.S. App. LEXIS 25148, *2-3 (9th Cir. 2002). The Ninth Circuit held that the court erred when it failed to inform Anderson at the time it dismissed his first federal habeas petition that he had to choose between returning to state court to exhaust his claims (thereby forgoing the tolling of the AEDPA statute of limitations) or refiling the petition with only the exhausted claims (thereby waiving the unexhausted claims). Id.; see also Ford, 330 F.3d at 1102.

 DISCUSSION

 I. Procedural Issues

  A. Exhaustion

  The main purpose of exhaustion is to protect principles of comity between state and federal courts. Greene v. Lambert, 288 F.3d 1081, 1088 (9th Cir. 2002). State courts must be given the opportunity to address a petitioner's federal claims. See, e.g., id. A habeas petition should be dismissed if the claims contained within the petition have not been fairly presented to the state's courts in a manner allowing those courts to review the merits of those claims. O'Sullivan v. Boerckel, 526 U.S. 838, 842 (1999); 28 U.S.C. § 2254(b)(1).

  Anderson presented the peremptory challenge claim on direct appeal to the California Supreme Court.*fn3 He then presented the ineffective assistance of counsel, judicial misconduct, and competency hearing claims in his first state habeas petition to the California Supreme Court. Finally, he presented claims regarding the failure to sever and the exclusion of Hunt's testimony in his second habeas petition to the California Supreme Court. Thus, all of Anderson's claims have been presented to the California Supreme Court either on direct appeal or by habeas petition, and all avenues of state review on Anderson's current claims have been exhausted. Greene, 288 F.3d at 1088.

  B. Procedural Default

  Under the independent and adequate state grounds doctrine, federal courts "will not review a question of federal law decided by a state court if the decision of that court 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). This rule applies to state law decisions that rest on procedural grounds as well as to those that rest on substantive grounds. Henry v. Mississippi 379 U.S. 443, 446 (1965). "Thus, the independent [and adequate] state grounds doctrine bars the federal courts from reconsidering the issue in the context of habeas corpus review as long as the state court explicitly invokes a state procedural bar rule as a separate basis for its decision." McKenna v. McDaniel, 65 F.3d 1483, 1488 (9th Cir. 1995) (citing Harris v. Reed. 489 U.S. 255. 264 n.10 (1989))

  The California Supreme Court denied Anderson's first habeas petition without issuing an opinion. This "postcard" denial of a habeas claim by a state supreme court constitutes a decision on the merits. Lewis v. Borg, 879 F.2d 697, 698 (9th Cir. 1989). The California Supreme Court denied Anderson's second habeas petition with a citation to In re Waltreus, 62 Cal.2d 218, 225 (1965), a case holding that claims not raised on direct review cannot generally be relitigated on habeas. The State now argues that this is a procedural bar to Anderson's claims on federal habeas review. However, reliance on In re Waltreus does not bar federal court review because the Supreme Court has determined that such a denial is neither procedural nor on the merits. Hill v. Roe, 321 F.3d 787, 789 (9th Cir. 2002) ("In Ylst v. Nunnemaker, 501 U.S. 797 (1991), the United States Supreme Court held that an In re Waltreus citation . . . has no bearing on a California prisoner's ability to raise a federal constitutional claim in federal court . . . [and does] not bar federal court review."). Because the other California decisions in this matter were either on the merits or "postcard" opinions, this court finds no procedural default that would bar review on the merits of any of Anderson's claims.

 II. Substantive Claims*fn4

  A petition for habeas corpus from a state court conviction is governed by the standards set forth in the Antiterrorism and Effective Death Penalty Act ("AEDPA"), 28 U.S.C. § 2254.*fn5 Section 2254 sets a deferential standard of review of "any claim that was adjudicated on the merits in State court proceedings." 28 U.S.C. § 2254(d). When reviewing habeas petitions, federal courts defer to the state court's determination of federal issues unless a determination is "contrary to, or involved an unreasonable application of, clearly established Federal law," Himes v. Thompson, 336 F.3d 848, 852 (9th Cir. 2003), or was "based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding," 28 U.S.C. § 2254(d)(1), (2).

  A state court's decision is "contrary to" clearly established federal law if it "applies a rule that contradicts the governing law set forth in [Supreme Court] cases" or if it "confronts a set of facts that are materially indistinguishable from a decision of [the Supreme Court] and nevertheless arrives at a [different] result. . . ." Mitchell v. Esparza, 124 S.Ct. 7, 10 (2003) (citing Williams v. Taylor, 529 U.S. 362, 405-406 (2000)). A state court's decision involves an "unreasonable application of Supreme Court authority if it correctly identifies the governing rule but unreasonably applies it to a new set of facts. Id. Under AEDPA, "a federal habeas court may not issue the writ simply because that court concludes in its independent judgment that the relevant state-court decision applied clearly established federal law erroneously or incorrectly. Rather, that application must be objectively unreasonable." Sanders v. Lamarque, 357 F.3d 943, 2004 U.S. App. LEXIS 1541, *12-13 (9th Cir. 2004) (citing Lockyer v. Andrade, 538 U.S. 63, 75-76 ...


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