United States District Court, S.D. California
September 27, 2005.
BRUNO MEDINA BUGARA, Petitioner,
STUART J. RYAN, Warden, Respondent.
The opinion of the court was delivered by: JEFFREY MILLER, District Judge
REPORT AND RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE
I. Introduction and Procedural Background
Petitioner is a state prisoner serving a sentence of 41 years.
(Petition at 1.) He was convicted on April 15, 2002 of assault
with a semiautomatic firearm (Cal. P.C. § 245, subd. [b]);
discharging a firearm at an occupied vehicle (Cal. P.C. § 246);
corporal injury to a spouse (Cal. P.C. § 273.5, subd. [a]);
making a criminal threat (Cal. P.C. § 422); two counts of
possession of a controlled substance while armed with a loaded
firearm (Cal. H & S Code § 11370.1, subd. [a]); two counts of
possession for sale of a controlled substance (Cal. H & S Code §§
11351, 11378); possession of a firearm by a felon (Cal. P.C. § 12021, subd. [a] ); and resisting an officer (Cal. P.C. § 148,
subd. [a] ). (Lodgment No. 2 at 1-2.)
Petitioner appealed to the California Court of Appeal, Fourth
Appellate District, Division One, but the appellate court
affirmed Petitioner's conviction on August 7, 2003. (Lodgment No.
2.) Petitioner did not petition for review in the California
Supreme Court. Id.
Petitioner filed a Petition for Writ of Habeas Corpus with the
California Supreme Court. On April 13, 2005, the court denied
that petition without comment, citing to In re Waltreus, 62
Gal. 2d 218 (1965). (Lodgment No. 4.)
On April 25, 2005, Petitioner filed the current Petition for
Writ of Habeas Corpus, claiming that: (1) the trial court's
exclusion of expert testimony evidence violated his rights to a
fair trial and to due process; (2) evidence of his voluntary
intoxication was admissible in the trial court on the issue of
whether he actually formed a specific intent or possessed the
mental state required in Count nos. 2 and 4-10 of the amended
information; and (3) the trial court's denial of psychologist
expert testimony on the effects of Petitioner's use of
methamphetamine violated Petitioner's right to due process and to
a fair trial. (Pet. at 6-8.)
On August 26, 2005, Respondent filed a Motion to Dismiss.
Petitioner did not file an Opposition.
II. Respondent's Motion to Dismiss
Respondent argues that the three claims Petitioner failed to
raise in the California Supreme Court on direct review and which
that court later rejected on habeas review with a citation to
In re Waltreus, 62 Cal. 2d 218 (1965), are procedurally defaulted
under Forrest v. Vasquez, 75 F.3d 562 (9th Cir. 1996). The
Waltreus rule provides that "in the absence of strong
justification, any issue that was actually raised and rejected on
appeal cannot be renewed in a petition for a writ of habeas
corpus." In re Harris, 855 P. 2d 391, 398 (Cal. 1993);
(interpreting Waltreus). The Ninth Circuit has ruled that the
invocation of the Waltreus rule by a state court does not bar
federal review. See Calderon v. United States Dist. Court,
96 F.3d 1126, 1131 (9th Cir. 1996); Hill v. Roe, 321 F.3d 787 (9th
Cir. 2003). In Ylst v. Nunnemaker, 501 U.S. 797 (1991), the
Supreme Court explained that Waltreus stands for the "ordinary
state rule barring relitigation of claims raised on direct
appeal," and that a Waltreus citation is neither a ruling on
the merits nor a denial on procedural grounds. Id. at 806. A
federal court must "look through" a denial based on Waltreus to
the last explained state court decision to determine whether the
basis of the decision was procedural default. See id.
In Forrest, the Ninth Circuit looked through the California
Supreme Court's denial based on Waltreus to the previous
decision, which was the California Supreme Court's order denying
Forrest's application for relief from default. The Ninth Circuit
considered that decision to be "an order that was clearly based
on Forrest's failure to comply with a procedural rule."*fn1
Forrest at 564. The Ninth Circuit found that Rule 28(b) of the
California Rules of Court was an "adequate and independent state procedural
ground barring federal review of Forrest's constitutional claim."
Respondent argues that the current case is "on all fours" with
Forrest. (Resp.'s Motion to Dismiss at 3.) However, in
Forrest, when the Ninth Circuit "looked through" the California
Supreme Court's denial based on Waltreus, it found the
California Supreme Court's denial of Forrest's request for relief
due to his failure to timely file a petition for review.
Forrest at 564; see Ylst at 806. It was this denial of relief
that served as the basis for the Ninth Circuit's ruling that
Forrest had procedurally defaulted. Forrest at 564. In the
current case, when this Court "looks through" the California
Supreme Court's denial based on Waltreus, it finds the
California Court of Appeal's decision denying Petitioner's claims
on the merits. (Lodgment No. 2.)
Other District Courts have ruled that this is a crucial
difference, and have found that cases such as the current one are
distinguishable from Forrest because there is no order finding
that the claims were defaulted on direct appeal. See Davis v.
Butler, 2005 WL 1490283, *7 (E.D. Cal., June 17, 2005) ("This
court is able to look through the Superior Court opinion [denying
habeas petition, citing Waltreus] to the reasoned opinion of
the California Court of Appeal denying these claims on the
merits."); Keola v. Knowles, 2005 WL 1489917, *4 (E.D. Cal.,
June 20, 2005) (looking through California Supreme Court's order
denying habeas petition based on Waltreus to reasoned opinion
of Court of Appeal denying claims on the merits); Morganti v.
Pliler, 1998 WL 575093, *2 (N.D. Cal., July 13, 1998) ("In petitioner's case, by
contrast, the last clear or explained state court decision is
that of the California Court of Appeal's opinion . . . affirming
petitioner's conviction. That opinion rejected petitioner's seven
claims on the merits and did not invoke an independent and
adequate state procedural ground to reject any of them."); and
Booker v. Henry, 1998 WL 328618, *2 (N.D. Cal., June 15, 1998)
(looking through denial based on Waltreus to California Court
of Appeal's decision in which court rejected petitioner's claim
on the merits and did not invoke an independent and adequate
state ground barring federal review).
This Court agrees with the reasoning of the Northern and
Eastern Districts of California, and finds that since the last
explained decision preceding the California Supreme Court's
denial based on Waltreus was a decision on the merits,
Petitioner has not procedurally defaulted his claims.
Accordingly, this Court recommends that Respondent's Motion to
Dismiss be DENIED.
After a thorough review of the record in this matter, the
undersigned Magistrate Judge finds that Respondent's Motion to
Dismiss should be DENIED.
This Report and Recommendation is submitted to the Honorable
Jeffrey T. Miller, United States District Judge assigned to this
case, pursuant to the provisions of 28 U.S.C. § 636(b)(1).
IT IS ORDERED that no later than October 21, 2005, any party
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
served and filed no later than November 4, 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); Martinez v. Ylst, 951 F.2d 1153 (9th Cir.
IT IS SO ORDERED.
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