United States District Court, S.D. California
September 20, 2005.
JOSE ABARCA, Petitioner,
STUART J. RYAN, Warden, Respondent.
The opinion of the court was delivered by: BARBARA MAJOR, Magistrate Judge
REPORT AND RECOMMENDATION FOR ORDER GRANTING MOTION TO DISMISS
HABEAS PETITION WITH PREJUDICE
This Report and Recommendation is submitted to Chief United
States District Judge Irma E. Gonzalez pursuant to
28 U.S.C. § 636(b) and Local Civil Rules 72.1(d) and HC.2 of the United
States District Court for the Southern District of California.
On January 4, 2005, Jose Abarca ("Petitioner" or "Abarca"), a
state prisoner appearing pro se, filed a Petition for a Writ of
Habeas Corpus ("Petition") challenging his conviction pursuant to
28 U.S.C. § 2254. Respondent filed an Answer on February 24,
2005, and Petitioner filed a Traverse on March 11, 2005. On May
12, 2005, the Court ordered Respondent to submit a supplemental
brief and lodgments. On May 27, 2005, Respondent moved to dismiss
the Petition as unexhausted and procedurally defaulted. On June
13, 2005, Petitioner opposed Respondent's motion. For the reasons set forth below, this Court
recommends that Respondent's motion be GRANTED and the instant
FACTUAL AND PROCEDURAL BACKGROUND
On March 30, 2001, Petitioner and Rosalino Guadarrama
("Guadarrama"), both armed with handguns, held up a restaurant.
Lodgment 5 at 2. A kitchen employee, Luis Santa
("Santa");*fn1 another employee, Maria Puentes ("Puentes");
and two customers, Beatrice Sacay ("Sacay") and Jose Leon
("Leon"), were among those present. Id. When Guadarrama pointed
a gun at Puentes, she showed him that the restaurant's money was
hidden inside a coffee can and he took the money. Id.
Guadarrama also pointed the gun at Santa, who heard a click,
though the weapon did not fire. Id. Puentes escaped, and Abarca
and Guadarrama ordered everyone else into a restroom. Id. Sacay
complied, leaving behind her purse, which contained a check
belonging to Leon. Id. Guadarrama and Abarca took both the
purse and the check. Id. Police pursued and arrested Abarca and
Guadarrama as they fled in a vehicle driven by Abarca. Id. at
On November 21, 2001, the San Diego County District Attorney
filed an amended information charging Petitioner and Guadarrama
with nine crimes related to the hold up. Lodgment 1 at 1-2. On
December 12, 2001, Petitioner waived his right to a jury trial
and submitted the matter to the court on the preliminary hearing
transcripts and exhibits. Id. at 102. On December 14, 2001, the trial court found
Petitioner guilty of the lesser included offense of assault with
a firearm (Cal. Pen. Code § 245(a) (2)), reckless driving to
evade arrest (Cal. Veh. Code § 2800.2(a)), four counts of robbery
while personally armed with a firearm (Cal. Pen. Code §§ 211,
12022.53(b)), and two counts of false imprisonment (Cal. Pen.
Code §§ 236-37(a)). Lodgment 1 at 104. Petitioner and Guadarrama
were specifically convicted of robbing Santa in Count 3 and Leon
in Count 7. Id. at 3-4. The court sentenced both Petitioner and
Guadarrama to three-year prison terms for Count 3, consecutive
one-year terms for another robbery count, and two consecutive
ten-year enhancements for firearm use, for a total of twenty-four
years in prison each.*fn2 Lodgment 5 at 2.
B. Direct Review
Both Petitioner and Guadarrama appealed the consecutive
sentence enhancements. Id. Guadarrama also appealed his robbery
convictions on charged in Counts 3 and 7, claiming insufficiency
of the evidence. Id. Regarding Count 3, Guadarrama claimed that
there was no evidence that he took property from Santa because
Santa was not responsible for handling money at the restaurant.
Id. Regarding Count 7, Guadarrama argued that there was no
evidence that he took property from Leon because Leon's check was
taken from Sacay's unattended purse. Id. at 4. Petitioner did
not join Guadarrama in these insufficiency of the evidence
claims, despite their joint appeal.*fn3 Id. at 3. On May 29, 2003, the California Court of Appeal, Fourth
Appellate District, issued an opinion addressing both Petitioner
and Guadarrama's appellate claims. Id. at 1-2. The court
reduced Petitioner and Guadarrama's consecutive enhanced
sentences, modifying their sentences to a total of seventeen
years and four months each. Id. at 5. The court also affirmed
Guadarrama's convictions on robbery Counts 3 and 7. Id.
Petitioner did not seek direct review in the California Supreme
Court. Pet. Writ Habeas Corpus at 2 ("Pet."); Lodgment 8 at 5;
Lodgment 10 at 5. However, Guadarrama filed a petition for review
in the California Supreme Court on July 9, 2003. Lodgment 6 at 1.
The California Supreme Court denied Guadarrama's petition, but in
doing so it captioned the case "THE PEOPLE, Plaintiff and
Respondent, v. JOSE ABARCA et al., Defendants and Appellants."
Petitioner did not file a petition for certiorari in the United
States Supreme Court. Pet. at 3.
C. State Collateral Review
On January 14, 2004, Petitioner filed a Petition for a Writ of
Habeas Corpus in the California Court of Appeal. Lodgment 8 at 1.
In that petition, Petitioner raised the same insufficiency of the
evidence claim regarding the robbery as charged in Counts 3 and 7
that Guadarrama raised on direct review and that the California
Court of Appeal rejected. Id. at 3; Lodgment 9. The court took
judicial notice of its earlier decision on direct review and
found that Petitioner's habeas claim was identical to
Guadarrama's appellate claim. Lodgment 9. The court denied the
petition, citing In re Harris, 5 Cal. 4th 813, 829 (claims
"actually raised and rejected on appeal cannot be renewed in a
petition for a writ of habeas corpus"). Lodgment 9. On February 5, 2004, Petitioner filed a Petition for a Writ of
Habeas Corpus in the California Supreme Court. Lodgment 10 at 1.
This petition repeated the insufficiency of the evidence claim
Petitioner raised in the Court of Appeal. Compare Lodgment 8 at
3, 7-11 with Lodgment 10 at 3, 7-11. On December 1, 2004, the
California Supreme Court summarily denied the petition citing In
re Lindley, 29 Cal. 2d 709 (1947) and In re Dixon,
41 Cal. 2d 756 (1953). Lodgment 11.
D. Federal Review
Petitioner filed the instant Petition on January 4, 2005. Pet.
at 1. In this Petition, Petitioner raises the same insufficiency
of the evidence claim regarding the robbery as charged in Counts
3 and 7 that he asserted on state habeas appeal. Compare id.
at 6, 10-14 with Lodgment 8 at 3, 7-11, and Lodgment 10 at 3,
7-11. Respondent answered on February 24, 2005. Doc. No. 5 at 1
("Answer"). Petitioner filed a Traverse on March 11, 2005. Doc.
No. 9 at 1 ("Traverse"). In the Traverse, Petitioner asserts for
the first time that the lack of sufficient evidence regarding
Counts 3 and 7 resulted in a federal due process violation. Id.
Also on February 24, 2005, Respondent mistakenly lodged the
confusingly-captioned California Supreme Court decision in
Guadarrama's appeal, see "Direct Review" section supra, in
support of Respondent's conclusion that Petitioner had exhausted
his state court remedies. See Answer at 4; Lodgment 7; Pet. at
2; Lodgment 8 at 5; Lodgment 10 at 5. On May 12, 2005, this Court
found that Respondent had not
provided an adequate record to support his conclusion
that Petitioner (1) fairly presented a federal claim
to the state supreme court, (2) exhausted his claim,
and (3) raised his claim on direct appeal such that
this Court need not consider the procedural bar
imposed by the California Supreme Court on habeas
review. Doc. 11 at 7. The Court, therefore, ordered
Respondent to submit a supplemental brief and
Instead, Respondent filed the instant motion to dismiss the
Petition on May 27, 2005. Doc. No. 12 ("Mot. to Dismiss").
Respondent submits that, although Petitioner's claim of
insufficient evidence only alleges a violation of state law, when
liberally construed it raises a federal constitutional question
cognizable on federal habeas. Doc. No. 13 ("Supp. Mem.").
However, Respondent further contends that, because Petitioner has
not presented this federal aspect to the California Supreme
Court, Petitioner's claim is unexhausted. Id. at 2-4. In
addition, Respondent contends that Petitioner's claim is
procedurally defaulted for failure to raise it on direct review.
Id. at 4-8.
On June 13, 2005, Petitioner filed a document entitled
"Opposition to Respondent's Supplemental Briefing," which the
Court construes as an opposition to Respondent's motion to
dismiss. Doc. No. 15 at 1 ("Pet'r Opp'n"). Therein, Petitioner
asserts that his insufficiency of the evidence claim raises a
federal, constitutional question and that the possibility of a
fundamental miscarriage of justice excuses his procedural
default. See Pet'r Opp'n at 3.
A. Standard of Review
Title 28, United States Code, § 2254(a), sets forth the
following scope of review for federal habeas corpus claims:
The Supreme Court, a Justice thereof, a circuit
judge, or a district court shall entertain an
application for a writ of habeas corpus in behalf of
a person in custody pursuant to the judgment of a
State court only on the ground that he is in custody
in violation of the Constitution or laws or treaties
of the United States.
28 U.S.C. § 2254(a) (West 2000). B. Cognizibility of Petitioner's Claim
As a preliminary matter, the Court first addresses the question
of whether Petitioner has asserted a claim for which federal
habeas relief is available. For the Court to consider
Petitioner's claim, Petitioner must allege that he is in custody
"in violation of the Constitution or laws or treaties of the
United States." Id. Petitioner may do so by citing "provisions
of the federal Constitution or . . . either federal or state case
law that engages in a federal constitutional analysis." Fields
v. Waddington, 401 F.3d 1018, 1021 (9th Cir. 2005). In the
Petition, though Petitioner claims insufficiency of the evidence
regarding Counts 3 and 7, he fails to cite any provisions of the
Constitution or federal case law which would support a habeas
claim. Pet. at 10-13. In the Traverse, however, Petitioner cites
Jackson v. Virginia, 443 U.S. 307 (1979), Estelle v. McGuire,
502 U.S. 62 (1991), and United States v. Dixon, 509 U.S. 688
(1993), to assert that the trial court violated Petitioner's due
process rights when it convicted him based on insufficient
evidence. Traverse at 3. Due process violations stemming from
insufficiency of the evidence are cognizable federal habeas
claims. Mitchell v. Prunty, 107 F.3d 1337, 1340 n. 3 (9th Cir.
1997), overruled on other grounds by Santamaria v. Horsely,
133 F.3d 1242, 1248 (9th Cir. 1998) (en banc). The fact that
Petitioner failed to raise the federal aspect of his claim until
he filed the Traverse may preclude the Court from considering the
claim if Respondent has not been afforded the opportunity to
address it. See Cacoperdo v. Demosthenes, 37 F.3d 504, 507 (9th
Cir. 1994) (holding that additional grounds for relief introduced
in a traverse denied the respondent the opportunity to address
them and, therefore, were neither properly before the district
court nor cognizable on appeal); but see Boardman v. Estelle, 957 F.2d 1523, 1525 (9th Cir. 1992)
(holding that the district court erred in failing to address
claims made in a traverse). Here, because Respondent's instant
motion specifically addresses this federal claim, the Court finds
no prejudice to Respondent. Consequently, despite Petitioner's
failure to initially state a federal claim in the Petition, the
Court finds that Petitioner has alleged a federal violation
sufficient to enable the Court to entertain the Petition.
Petitioner not only failed to initially present his federal
claim to this Court, he also failed to present it to the
California courts. Lodgment 8 at 7-10; Lodgment 10 at 7-10.
Respondent asserts that, as a result, Petitioner's federal claim
is unexhausted and subject to dismissal. Mot. to Dismiss at 1.
Federal habeas relief is only available to Petitioner if he
"has exhausted the remedies available in the [state]
courts. . . ." 28 U.S.C. § 2254(b)(1)(A). Generally, to meet
this requirement, Petitioner must have already fairly presented
his federal claim to the California Supreme Court. See
Johnson v. Zenon, 88 F.3d 828, 829 (9th Cir. 1996). Here,
when Petitioner petitioned the California Supreme Court for habeas
review, Petitioner neglected to reference either the federal
Constitution, federal law, or any federal cases. Lodgment 10 at
7-11. Therefore, Petitioner did not fairly present his claim to
the California Supreme Court.
However, when a procedural bar prevents the petitioner from
seeking further relief in the state courts the petitioner is
considered to have exhausted all available state remedies,
regardless of whether the petitioner's claims were ever presented
to the state supreme court. Gray v. Netherland, 518 U.S. 152, 161-162 (1996) (the requirement to
present the claim only applies to remedies currently available).
Here, as explained below, because Petitioner has procedurally
defaulted on his claim, he is prohibited from seeking further
post-conviction relief on this basis in the California courts.
Consequently, this Court finds that he has exhausted his state
court remedies regarding this claim.
D. Procedural Default
The same procedural default that exhausts Petitioner's state
court remedies may, however, also prevent this Court from
reaching the merits of the claim. Gray, 518 U.S. at 162.
Respondent contends that Petitioner procedurally defaulted on his
claim by failing to present it to the California courts on direct
review. Supp. Mem. at 4-8. For this reason, Respondent asserts
that the Court must dismiss the Petition. Id. at 4.
A procedural default is a failure to comply with a state rule
of procedure. Trest v. Cain, 522 U.S. 87 (1997). When that rule
constitutes an adequate and independent state ground for reaching
a decision concerning a petitioner's claims, a federal court may
not address the claims unless the petitioner can show cause and
prejudice or actual innocence. Wells v. Maass, 28 F.3d 1005,
1008 (9th Cir. 1994). "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." Bennett v. Mueller,
322 F.3d 573, 586 (9th Cir. 2003). Here, Respondent asserts that two
adequate and independent state procedural bars prevent this Court
from hearing Petitioner's claims. Supp. Mem. at 6-8. Therefore,
unless Petitioner successfully demonstrates that these procedural
bars are not adequate or independent, this Court cannot reach the
merits of his claim. See Wells, 28 F.3d at 1008. Alternately, if
Petitioner demonstrates either cause and prejudice or actual
innocence, the Court can excuse Petitioner's procedural default
and review his claim. See id.
1. The Lindley Bar
First, Respondent argues that the California Supreme Court
imposed a procedural bar when it cited Ex parte Lindley,
29 Cal. 2d 709 (1947). Supp. Mem. at 4, 6-7. Under Lindley, habeas
review is not available for a claim of insufficient evidence;
such a claim may only be raised on direct review. Lindley,
29 Cal. 2d at 723, 726; Carter v. Giurbino, 385 F.3d 1194, 1197
(9th Cir. 2004) (holding that "[a] petitioner who fails to
exhaust sufficiency of the evidence claims in his direct appeal
and raises them instead in a subsequent state habeas petition has
procedurally defaulted those claims as a matter of California
law). Here, Petitioner failed to raise his insufficiency of the
evidence claim on direct review and instead raised it on habeas
review. Lodgment 5 at 3-4; Lodgment 8 at 3; Lodgment 10 at 3.
Since Petitioner cannot raise a claim of insufficiency of the
evidence on habeas review, Petitioner procedurally defaulted on
the claim when he failed to raise it on direct review, and the
California courts were procedurally barred from hearing it in
Petitioner's subsequent habeas petition.
Petitioner also failed to present the federal aspects of his
insufficiency of the evidence claim to the California courts.
Since the Lindley bar prohibits Petitioner from bringing a
claim of insufficiency of the evidence on habeas review,
Petitioner also cannot return to state court to raise the federal
aspects of this claim. Accordingly, the Court finds that
Petitioner has defaulted on both the insufficiency of the
evidence claim Petitioner actually brought and the federal aspect
of the claim that he raises in the Traverse but failed to present to
the California courts.
Respondent further asserts that the Lindley bar provided an
adequate and independent state ground for the California Supreme
Court to have denied Petitioner's claim. The Ninth Circuit has
held the Lindley bar to be adequate and independent state
grounds for the California Supreme Court to deny a habeas claim.
Carter, 385 F.3d at 1196. Because Petitioner has plead the
existence of an adequate and independent state procedural bar,
this Court may not review the claim unless Petitioner
demonstrates either that the Lindley bar is not an adequate and
independent state ground or that the Court may excuse the
default. See Wells v. Maas, 28 F.3d 1005, 1008 (9th Cir.
2. The Dixon Bar
Respondent also contends that the California Supreme Court
imposed a second procedural bar when it cited Ex parte Dixon,
41 Cal. 2d 756 (1953), in its denial of Petitioner's claim. Supp.
Mem. at 7-8; Lodgment 11. The Dixon bar prevents a California
court from hearing a claim in a habeas petition that could have
been but was not raised on direct review.*fn4 See Dixon,
41 Cal. 2d at 759.
The general rule is that habeas corpus cannot serve
as a substitute for an appeal, and, in the absence of
special circumstances constituting an excuse for
failure to employ that remedy, the writ will not lie
where the claimed errors could have been, but were
not, raised upon a timely appeal from a judgment of
conviction. Id. In this case, though Petitioner and Guadarrama
jointly appealed their convictions, Petitioner did
not join Guadarrama's claim of insufficiency of the
evidence regarding Counts 3 and 7. Because Petitioner
and Guadarrama appeared before the Court of Appeal
together, the claim was plainly available to
Petitioner as well. Indeed, it was Petitioner's
lawyer who initially preserved this claim at trial by
arguing that the persons robbed in Counts 3 and 7
were not in possession of the property stolen.
Lodgment 2 at 23-27. Since Petitioner cannot raise a
claim in state habeas that was available but not
raised on direct review, Petitioner procedurally
defaulted on his claim of insufficiency of the
evidence and the California courts were procedurally
barred from hearing it.
Here, again, Petitioner failed to present the federal aspect of
his claim to the California courts. The Court finds nothing in
the record to indicate that the federal aspects of Petitioner's
claim were not available when Petitioner submitted his appeal. In
fact, all of the federal cases that Petitioner cites in support
of his claim were decided by the Supreme Court at least a decade
before Petitioner's direct review. See Traverse at 3. Since the
Dixon bar prohibits Petitioner from raising a claim on habeas
review that was available but not raised on direct review, it
also bars Petitioner from raising this claim in federal court.
Accordingly, the Court finds that Petitioner has defaulted on
both the insufficiency of the evidence claim Petitioner actually
brought and the federal aspects of the claim that he raised in
the Traverse but failed to present to the California courts.
Respondent further asserts that the Dixon bar is an adequate
and independent state ground for the California Supreme Court to
deny Petitioner's claim, which, therefore, bars this Court from
reviewing Petitioner's claim. Supp. Mem. at 7-8. This Court has already
held the Dixon bar to be adequate and independent state grounds
for the California Supreme Court to deny a habeas claim.
Protsman v. Pliler, 318 F. Supp. 2d 1004, 1013-14 (S.D. Cal.
2004) (Whelan). Because Petitioner has plead that the California
Supreme Court imposed an adequate and independent state
procedural bar to deny Petitioner's claim, this Court may not
review the claim unless Petitioner demonstrates either that the
Dixon bar is not an adequate and independent state ground or
that the Court may excuse the default. See Wells,
28 F.3d at 1008.
E. Overcoming Procedural Default
Since Respondent has plead the existence of two adequate and
independent procedural bars, Lindley and Dixon, the burden
now shifts to Petitioner to demonstrate that these procedural
bars should not apply. Bennett, 322 F.3d at 586. Petitioner may
do so by challenging the adequacy or independence of the
procedural bars. Wells, 28 F.3d at 1008. Alternatively,
Petitioner can overcome the procedural default altogether by
demonstrating cause and prejudice or actual innocence. Edwards
v. Carpenter, 529 U.S. 446, 451 (2000); Wells,
28 F.3d at 1008.
1. Independence and Adequacy of the Lindley and Dixon Bars
Petitioner may challenge either the adequacy or the
independence of the Lindley and Dixon bars to demonstrate
that they should not prevent this Court from reaching the merits
of his claim. See Coleman v. Thompson, 501 U.S. 722, 729
(1991). To challenge the adequacy, Petitioner must assert
"specific factual allegations that demonstrate the inadequacy of
the state procedure, including citation to authority
demonstrating inconsistent application of the rule." Bennett,
322 F.3d at 586. Here, Petitioner neither argues that the
Lindley and Dixon procedural bars are not consistently applied, nor supplies any
facts or law to support such arguments. Furthermore, nothing in
the record or briefing suggests that these procedural bars are
inconsistently applied. Consequently, Petitioner has failed to
demonstrate the inadequacy of the Lindley and Dixon
Petitioner also has failed to demonstrate that these procedural
bars are not independent. "For a state procedural rule to be
`independent,' the state law basis of the decision must not be
interwoven with federal law." La Crosse v. Kernan,
244 F.3d 702, 704 (9th Cir. 2001) citing Michigan v. Long,
463 U.S. 1032, 1040-41 (1983). Again, Petitioner has failed to claim that
the Lindley and Dixon bars are not independent of federal
law, to state facts supporting such arguments, or to cite any
authority stating that these bars are interwoven with federal
law. Also, nothing in the record or briefing indicates that the
application of these bars was interwoven with federal law. As a
result, Petitioner has failed to show that the Lindley and
Dixon bars are not independent.
Because Petitioner has failed to demonstrate that the Lindley
and Dixon bars are inadequate or dependent upon federal law, he
has not carried his burden of demonstrating that his federal
claims are not procedurally barred by Lindley and Dixon.
Accordingly, the Court finds that the Lindley and Dixon bars
are each adequate and independent, that Petitioner procedurally
defaulted his insufficiency of the evidence claim when he failed
to raise it on direct appeal, and that Petitioner's procedural
default bars this Court from reviewing his claim in the absence
of excuse. 2. Cause and Prejudice or Actual Innocence
Since Petitioner's claim is procedurally defaulted, the Court
may only reach the merits if Petitioner can demonstrate either
cause and prejudice or actual innocence. Wells,
28 F.3d at 1009.
a. Cause and Prejudice
The Court may excuse Petitioner's default if Petitioner can
demonstrate a cause for his procedural default. Id. "`Cause'
under the cause and prejudice test must be something external
to the petitioner, something that cannot fairly be attributed to
him. . . ." Coleman, 501 U.S. at 753 (emphasis in original).
Petitioner makes no reference to any external factor which caused
him to default on his claim. However, Petitioner's habeas
petitions to the California Court of Appeal and the California
Supreme Court both imply that ineffective assistance of counsel
may be the cause. Lodgment 8 at 5; Lodgment 10 at 5. Regardless,
Petitioner does not state any facts or law to support this
implied argument, nor does the Court find any in the record.
Because Petitioner fails to make any argument for an external
cause for his procedural default, the Court finds that Petitioner
has failed to establish cause sufficient to excuse his default
and that the Court, therefore, need not address
prejudice.*fn5 Engle v. Isaac, 456 U.S. 107, 134 (1982). b. Actual Innocence
The Court may also reach the merits of Petitioner's claim if
Petitioner can demonstrate that the Court's failure to do so
would result in a fundamental miscarriage of justice. Wells,
28 F.3d at 1009. To demonstrate a miscarriage of justice, Petitioner
must offer new, reliable evidence of an alleged constitutional
error that probably resulted in the conviction of an innocent
person. Schlup v. Delo, 513 U.S. 298, 324, 327 (1995). This
evidence must be factual and indicate actual innocence, "as
opposed to legal innocence as a result of legal error."
Gandarela v. Johnson, 286 F.3d 1080, 1085 (9th Cir. 2001)
citing Schlup, 513 U.S. at 321. Here Petitioner offers no
factual evidence that was not presented at his trial. Nor does
the Court find anything in the record to indicate that such
evidence exists. Instead, Petitioner asserts that the trial court
misapplied the law regarding the taking required for robbery in
Counts 3 and 7 of his conviction. Pet. Opp'n at 2. Because
Petitioner merely asserts a legal error and does not present new
evidence the Court finds that Petitioner has not adequately
demonstrated a fundamental miscarriage of justice that would
excuse his procedural default.
In sum, the Court finds that Petitioner raised a cognizable
federal claim by citing to Jackson v. Virginia, 443 U.S. 307
(1979), Estelle v. McGuire, 502 U.S. 62 (1991), and United
States v. Dixon, 509 U.S. 688 (1993), in his traverse. The Court
also finds that this claim is procedurally defaulted under the
Lindley and Dixon bars and that the claim is exhausted.
Furthermore, the Court finds that the Lindley and Dixon bars
are adequate and independent state grounds for the California
Supreme Court to deny Petitioner's claim and, therefore, bar this
Court from hearing the claim. Finally, the Court finds that Petitioner
has not demonstrated either cause and prejudice or actual
innocence to excuse his procedural default. Because the Court
finds that Petitioner has procedurally defaulted his claim and
has failed to demonstrate either cause and prejudice or actual
innocence to excuse the default, the Court recommends granting
Respondent's Motion to Dismiss the Petition.
For all of the foregoing reasons, IT IS HEREBY RECOMMENDED that
the Court issue an Order: (1) approving and adopting this Report
and Recommendation; (2) granting Respondent's Motion to Dismiss
the Petition; and (3) dismissing this action in its entirety with
IT IS ORDERED that no later than October 20, 2005, any
party to this action may file written objections with the Court
and serve a copy on all parties. The document should be captioned
"Objections to Report and Recommendation."
IT IS FURTHER ORDERED that any reply to the objections shall
be filed with the Court and served on all parties no later than
November 20, 2005. The parties are advised that failure to file
objections within the specified time may waive the right to raise
those objections on appeal of the Court's order. See Turner v.
Duncan, 158 F.3d 449, 455 (9th Cir. 1998).
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