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September 28, 2005.

DERRAL G. ADAMS, Respondent.

The opinion of the court was delivered by: LARRY BURNS, Magistrate Judge

[Dkt No. 6]
Petitioner Mac David Cochran ("Cochran"), a state prisoner proceeding pro se with a 28 U.S.C. § 2254 habeas petition, presents ten grounds in support of his Petition. Respondent moves to dismiss the Petition in its entirety. Respondent argues Cochran has included unexhausted claims (asserted to be Claims One, Five, and Eight), and federal habeas review is not available for Claims One, Two, Seven, and Nine because the state court resolved those claims on independent and adequate state law grounds, procedurally barring them from federal habeas review. Respondent contends the Court must require that Cochran amend his Petition to delete his unexhausted claims, or the Court must dismiss the Petition in its entirety without prejudice. Respondent seeks to stay the proceedings pending exhaustion and elimination of the procedurally defaulted claims. Magistrate Judge William McCurine, Jr. prepared a Report and Recommendation ("R&R") that Respondent's Motion be granted in part and denied in part. Dkt No. 19. The noticed deadline for filing Objections to the R&R passed on August 8, 2005, with none filed. On August 23, 2005, the Court received, accepted for filing, and granted Cochran's Motion For Enlargement Of Time In Which To File Objections To Report And Recommendation, requesting an extension of the deadline to August 28, 2005 (a Sunday), because it bore a timely signature date of August 3, 2005, and Cochran provided a proof of service by mail of the extension request also dated August 3, 2005. Cochran timely filed lengthy Objections on August 29, 2005. See FED.R.CIV.P. ("Rule") 6(a). The deputy attorney general assigned to this case informed the Court the government elected not to file a Reply to the Objections.

For the reasons discussed below, the Court ADOPTS the R&R granting in part and denying in part Respondent's Motion To Dismiss.


  An Amended Indictment charged Cochran with 39 criminal counts arising from discrete acts committed in the sexual abuse of his nine-year old daughter, 38 of which involved one or the other of the same two Penal Code provisions. See R&R pp. 2-3; Lodg. 1 at 178-85. The primary evidence introduced at trial was a twenty-minute videotape Cochran made of himself engaged with his daughter in the various charged acts and still photographs taken from the videotape which Cochran posted on the Internet. The FBI had seized the videotape in Cochran's home after receiving information child pornography posted on the Internet originated from his e-mail address. Cochran admitted having a sexual relationship with his daughter for the prior four month period and admitted posting the photographs on the Internet one time. R&R pp. 2-3, 18-25; Lodg. 4, People v. Cochran, No. D034916, slip. op. at 2-3, published at 107 Cal.Rptr.2d 119 (2001), rev'd on other grounds in People v. Cochran, 25 Cal.4th 396 (2002), Lodg. 5.

  The victim's name, "Jennifer C.," appears in several but not all of the Amended Information counts. All the counts except one reference the time code on the videotape and a description of the sex act memorialized at that point supporting the specific criminal count. There is no dispute only Cochran and Jennifer appear on the videotape. Each count also cites the particular section of the California Penal Code under which each crime was charged. Lodg. 1 at 178-85. Cochran did not and does not dispute he performed the acts.*fn1 Instead, his defense, and his habeas challenges consist largely of contentions there is an absence of proof the acts were performed by "force, violence, duress, menace, or fear of immediate and unlawful bodily injury on the victim," a required element of the crimes.*fn2 Lodg. 1 at 205-08. After a bench trial, the judge convicted Cochran of all but one of the charged crimes: twenty-eight counts of aggravated assault on a child, and ten counts of forcible lewd act upon a child. Lodg. 1 at 205-08, 261. Cochran was sentenced in January 2000 to 143 years to life in state prison. The Court incorporates by reference the undisputed subsequent state procedural history recited in the R&R, Section II.

  Cochran's federal habeas Petition seeks relief from the conviction and sentence on grounds of: (1) ineffective assistance of trial and appellate counsel; (2) lack of sufficient notice in the charging document; (3) violation of his right to confrontation because the prosecution did not call the victim as a witness; (4) insufficient evidence of force, violence, or duress to support his convictions on counts 1 through 38; (5) entitlement to acquittal on counts 1 through 38 because no person accused him of committing a crime; (6) denial of a fair trial and due process because of the prosecution's purported misconduct in not calling the victim to testify; (7) his sentence violates his Sixth and Fourteenth Amendment rights because the judge considered elements not alleged in the information; (8) cumulative error through his trial and appellate counsel's failure to act as reasonable advocates; (9) denial of protection against unreasonable government seizure; and (10) denial of due process and a fair trial because the prosecutor solicited perjured testimony and used a copy of the videotape, violating the best evidence rule. Pet. pp. 13-107. Respondent moves to dismiss the Petition as "mixed," contending Claims One, Five, and Eight have not been exhausted. Respondent also moves to dismiss Claims One, Two, Seven, and Nine as procedurally defaulted under the doctrine of adequate and independent state law grounds for denial of relief. Cochran opposed the motion. In a thorough, well-reasoned R&R, Judge McCurine recommends Respondent's Motion be granted in part and denied in part. The R&R demonstrates all Cochran's habeas claims are technically exhausted. The R&R concludes the procedural bars imposed by the state courts were "adequate and independent" so as to support a procedural default of his Claims One, Two, Seven, Eight, and Nine, with no showing of cause and prejudice or of a fundamental miscarriage of justice adequate to excuse the default. Unless a procedural default is excused on one of those grounds, a federal habeas court cannot reach the merits of the claim. Park v. California, 202 F.3d 1146, 1150 (9th Cir. 2000). The R&R accordingly recommends those five claims be dismissed from the Petition.

  Cochran "accepts the statements [in the R&R] as to Federal Proceedings, State Proceedings, and part of the Discussion. . . ." Objections ("Obj.") p. 2. He also takes no exception to the analytical framework of the R&R or to Judge McCurine's reliance on Lodgement 10, the California Court of Appeal's denial of four of the claims found in the R&R to be procedurally defaulted, under the "look through" doctrine of Ylst v. Nunnemaker, 501 U.S. 797, 805 (1991).

  However, Cochran objects to R&R Part III.B, analyzing the unexcused procedural default of Claims One, Two, Seven, Eight and Nine. Obj. p. 2. Judge McCurine recommends the Court find federal habeas review of those claims is foreclosed because the state court applied an adequate and independent state procedural bar to consideration of their merits. The state court's discussion cited In re Harris, 5 Cal.4th 813, 834 (1993)*fn3 (a case intended to clarify the exceptions to the Dixon rule)*fn4 and In re Clark, 5 Cal.4th 750, 759 (1993) (intended to clarify the exceptions to both the Dixon rule and the untimeliness bar) to find Cochran had not demonstrated a miscarriage of justice in the review of his legal claims, "both constitutional and otherwise." Lodg. 10, slip op. at 1-2. Judge McCurine sua sponte considered "whether claim eight and those portions of claim one which were not presented to the state supreme court but which are now subject to the same procedural bar are also procedurally defaulted," and concluded they are. R&R 10:8-13.

  Cochran opposed the Motion To Dismiss, contending: the rule of In re Dixon, 41 Cal. 2d 756 (1953) is not independent of federal law;*fn5 he did everything in his power to properly present these claims in the state courts; his ineffective counsel caused any default; and a fundamental miscarriage of justice would result if this Court were to refuse to reach the merits of those claims.*fn6 Opp. pp. 5-9. He reprises those arguments in his Objections to the R&R.


  A. Legal Standards

  A district judge "may accept, reject, or modify the recommended decision" on a dispositive matter prepared by a magistrate judge proceeding without the consent of the parties for all purposes. FED. R. CIV. P. 72(b); see 28 U.S.C. § 636(b)(1). "The court shall make a de novo determination of those portions of the [R&R] to which objection is made." 28 U.S.C. § 636(b)(1); see United States v. Reyna-Tapia, 328 F.3d 1114, 1121 (9th Cir.) (en banc), cert. denied, 540 U.S. 900 (2003).

  B. Exhaustion

  No Objections have been filed to the recommendation that this Court find the Petition is not a "mixed petition." See R&R III.A. For the reasons set forth in the R&R, the Court finds Claims One, Five, and Eight meet the technical requirements for exhaustion, and the Petition is not "mixed." C. Cochran's Claims One, Two, Seven, Eight, And Nine Are Procedurally Defaulted

  "A district court properly refuses to reach the merits of a habeas petition if the petitioner has defaulted on the particular state's procedural requirements and is unable to demonstrate cause and prejudice or a fundamental miscarriage of justice." Park, 202 F.3d at 1150 (emphasis added), citing O'Sullivan v. Boerckel, 526 U.S. 838 (1999); see Coleman v. Thompson, 501 U.S. 722, 729, 750 (1991) (same).

  The state Court of Appeal, in denying Cochran habeas relief cited Harris, 5 Cal.4th at 824 and Clark, 5 Cal.4th at 759.

When a state court's rejection of a federal claim involves a violation of a state procedural rule which is (1) adequate to support the judgment and (2) independent of federal law, a habeas petitioner has procedurally defaulted his claim. Coleman v. Thompson, 501 U.S. 722, 729-30 (1991). A state procedural rule is "independent" if it is not interwoven with federal law. LaCrosse v. Kernan, 244 F.3d 702, 704 (9th Cir. 2001). A state procedural rule is "adequate" if it is "clear, consistently applied, and well-established ...

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