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LEE v. IARIA

United States District Court, S.D. California


November 2, 2005.

JESSE TERENCE LEE, Petitioner,
v.
VINCENT J. IARIA, Chief Probation Officer; BILL LOCKYER, Attorney General of the State of California, Respondents.

The opinion of the court was delivered by: RUBEN BROOKS, Magistrate Judge

REPORT AND RECOMMENDATION RE: DENIAL OF SECOND AMENDED PETITION FOR A WRIT OF HABEAS CORPUS AND ORDERING RESPONDENT (S) TO FILE DECLARATION [DOC. NO. 8]
Petitioner Jesse Terence Lee, an individual proceeding pro se, filed a Second Amended Petition for Writ of Habeas Corpus [doc. no. 8] on February 28, 2005. Petitioner alleges two grounds for relief: (1) He was denied his right to put on a defense, under the Sixth and Fourteenth Amendments, when the trial court excluded a witness who alleged excessive force during his arrest by the same deputy who arrested Lee; and (2) he was denied his right to confront witnesses against him, under the Sixth and Fourteenth Amendments, when the trial court limited cross-examination of Deputy Stebbing on prior complaints of excessive force. (Second Am. Pet. 6-7.) On April 22, 2005, Respondent*fn1 filed an Answer [doc. no. 11] to Lee's Second Amended Petition. Petitioner filed his Traverse [doc. no. 14] on May 24, 2005.

After reviewing the Second Amended Petition, Respondent's Answer, the Lodgments, and the Traverse, this Court finds that Lee is not entitled to the relief requested and recommends that his Second Amended Petition for a Writ of Habeas Corpus be DENIED for the reasons outlined below.

  I. FACTUAL BACKGROUND

  A. According to the Prosecution

  On the evening of October 30, 2001, San Diego County Deputy Sheriff Robert Stebbing stopped Petitioner's vehicle because he had a taillight out. (Lodgment No. 2, Rep.'s Trial Tr. vol. 3, at 493, 495, June 19, 2002.) Deputy Stebbing became suspicious when Lee did not immediately pull over. (Id. at 502-03.) Stebbing asked Petitioner why he did not immediately pull over, and Lee responded that he had been looking for a safe place to stop. (Id. at 513-14.) Lee did not have a valid driver's license in his possession. (Id. at 515.)

  Deputy Stebbing decided to "run [Petitioner's] D.M.V. status" to confirm his identity. (Id. at 522.) Lee refused to sit in the back of the patrol car while the deputy ran his check. (Id. at 522-24.) Deputy Stebbing attempted to force Petitioner into the backseat of the patrol car, placing Lee's right arm in a "wrist lock." (Id. at 525-26.) Petitioner resisted and demanded Stebbing release him because the deputy was hurting his shoulder. (Id. at 551.) At that point, Deputy Stebbing radioed for backup. (Id. at 535.)

  Pedro Alcazar, an employee at a restaurant in the shopping center where Lee stopped his car, saw Deputy Stebbing holding Lee's hands behind his back and Petitioner struggling to get away. (Lodgment No. 2, Rep.'s Trial Tr. vol. 4, at 768-70, 775-76, June 20, 2002.) Alcazar also saw Lee hit the deputy three times before running away. (Id. at 773-74.)

  Deputy Dan Settle responded to Deputy Stebbing's request for backup with his tracking dog named Urk. (Id. at 641, 645, 649-50.) The police helicopter circling overhead warned Petitioner he should surrender to the deputies to avoid being bitten by the police dog. (Id. at 657-58.) Urk tracked Lee's scent, found him, and bit him on the left forearm. (Id. at 665-66.) While Petitioner was struggling with the dog, Deputy Settle struck Lee in the abdominal area with a flashlight. (Id. at 671.) Deputy Schott, who also responded to Deputy Stebbing's call for backup, deployed five to ten rounds from a pepperball gun at Petitioner's upper torso. (Id. at 737, 747-48.) Lee continued to struggle with Urk on the ground. (Id. at 749.) Another responding officer, Deputy Foster, used his collapsible baton to strike Petitioner on the upper portion of his arms and back. (Lodgment No. 2, Rep.'s Trial Tr. vol. 6, at 927, 929, June 24, 2002.) Deputy Foster struck Lee several more times with the baton when he attempted to stand up. (Id. at 929-30.)

  Deputy Settle commanded Urk to let go of Petitioner's arm, and the dog complied. (Lodgment No. 2, Rep.'s Trial Tr. vol. 4, at 678.) After some additional struggling, Deputies Schott and Foster were able to handcuff Lee. (Id. at 751-52; Lodgment No. 2, Rep.'s Trial Tr. vol. 6, at 930-31.) Petitioner was taken to the hospital and treated for his injuries. (Lodgment No. 2, Rep.'s Trial Tr. vol. 4, at 683.)

  B. According to the Defense

  Lee testified that he did not immediately pull over when Deputy Stebbing turned on his overhead lights because there was a car next to him, and the road was dark. (Id. at 811-12.) Petitioner claims he told the deputy he had an identification card, but he was not able to readily find it. (Id. at 814-15.) Lee alleges Deputy Stebbing ordered him out of the car, then twisted Petitioner's arm behind his back, popping Lee's shoulder out of joint, even after Petitioner told the deputy he had a prior shoulder injury. (Id. at 816-18.) Deputy Stebbing also used pepper spray on Lee and swung a flashlight at him. (Id. 819-21.) Petitioner claims he ran to get away from what he perceived to be an assault and battery. (Id. at 823-24.) Lee also alleges he was already on the ground when the officers saw him and told the dog to "get him." (Id. at 832-33.)

  Petitioner painted a calmer picture of himself in this situation and at the hospital than the sheriff's deputies did. (See id. at 832-35; Lodgment No. 2, Rep.'s Trial Tr. vol. 6, at 962.) He also testified that he was interrogated by the officers before being medically treated. (Lodgment No. 2, Rep.'s Trial Tr. vol. 6, at 961, 968-76.) When Lee was finally released from the hospital, he was sent home to recover. (Id. at 975-76.) II. PROCEDURAL BACKGROUND

  The San Diego County District Attorney filed an information on November 2, 2001, charging Petitioner with resisting an executive officer, see Cal. Penal Code § 69 (West 1999); harm to or interference with a police animal, see id. § 600 (a); assault on a peace officer and emergency personnel, see Cal. Penal Code §§ 240, 241 (b) (West 1999 & Supp. 2005); and resisting an officer, see Cal. Penal Code § 148 (a) (1) (West 1999). (Lodgment No. 1, Clerk's Tr. vol. 1, at 1-3.) A preliminary hearing was held on November 16, 2001, and Lee pled not guilty to all charges. (Lodgment No. 2, Prelim. Examination Tr. at 56, Nov. 16, 2001.)

  On February 8, 2002, Petitioner filed a motion under California Evidence Code section 1043 to discover personnel records of Deputies Stebbing, Foster, Settle, and Schott. (Lodgment No. 1, Clerk's Tr. vol. 1, at 53-61.) The court granted the motion and ordered the prosecution to disclose the names of two people who had filed excessive force complaints against Deputies Stebbing and Settle. (Id. at 242.)

  Lee filed motions in limine on June 20, 2002, followed by amended motions in limine on June 21, 2002, to admit the testimony of Jesus Adrian Colin and Damarius Booker, the two individuals who previously filed excessive force complaints against Deputies Stebbing and Settle. (Id. at 91-97.) Jesus Colin had filed a complaint against Deputy Stebbing for using excessive force during Colin's arrest in August 2001. (Id. at 92, 95.) Damarius Booker was bitten by Deputy Settle's dog, Urk, on October 26, 2000. (Id. at 93, 97.) Petitioner argued Colin's and Booker's testimony should be admitted to prove a modus operandi and pattern of conduct of the officers involved in his arrest. (Lodgment No. 2, Rep.'s Trial Tr. vol. 5, at 852, 863-64, June 21, 2002.)

  The trial court granted Lee's motion to allow Booker to testify. (Id. at 866-68.) It denied his motion to allow Colin to testify because: (1) The motion was brought in an untimely manner; (2) the court was in mid-trial, and defense counsel was unsure when Colin could be made available because he was in custody; and (3) the only facts available — that Petitioner and Colin are both minorities, flashlights were wielded by Deputy Stebbing in both instances, and there was a pursuit in both cases — were too thin to use in assessing the probative value of the evidence. (Id. at 864-67.) The court also denied Lee's request to cross-examine Deputy Stebbing about Colin's excessive force complaint. (Id. at 865.)

  On June 27, 2002, a jury convicted Petitioner of resisting an executive officer, assault on a peace officer and emergency personnel, and resisting an officer. (Lodgment No. 2, Rep.'s Trial Tr. vol. 9, at 2106-07, June 27, 2002.) At sentencing, the court granted Lee's motion pursuant to California Penal Code section 17 (b) to reduce the conviction for violation of Penal Code section 69 (resisting an executive officer) to a misdemeanor. (Lodgment No. 2, Rep.'s Trial Tr. vol. 10, at 11, August 20, 2002.) The court suspended the imposition of sentence, placed Petitioner on informal, unsupervised probation for three years, a term that expired on August 20, 2005, and ordered Lee to complete sixty days of light-duty public service work. (Id.)

  Represented by counsel, Petitioner filed an appeal, claiming: (1) He was denied his Sixth and Fourteenth Amendment right to put on a defense when the trial court excluded testimony about a prior complaint of excessive force against Deputy Stebbing, and (2) he was denied his Sixth Amendment right to confront a witness against him when the trial court would not allow him to cross-examine Deputy Stebbing about a prior excessive force complaint. (Lodgment No. 3, Appellant's Opening Brief at 15, 23, People v. Lee, No. D040738 (Cal.Ct.App. Nov. 25, 2003).)

  The California Court of Appeal found Lee had waived his Sixth Amendment claims because he failed to timely object at trial on specific Sixth Amendment grounds. (Lodgment No. 6, People v. Lee, No. D040738, slip op. at 7-8, 14-15 n. 4 (Cal.Ct.App. Nov. 25, 2003).) The court of appeal also held that the trial court ruling excluding Colin's testimony and preventing cross-examination of Stebbing did not rise to the level of an unconstitutional deprivation of Sixth Amendment rights, and the trial court properly exercised its discretion in making those rulings. (Id. at 12-14, 16-17.)

  Petitioner, again represented by counsel, then filed a petition for review in the California Supreme Court, raising the same two grounds. (Lodgment No. 7, Petition for Review at 6, 15, People v. Lee, No. S121750 (Cal. filed Jan. 7, 2004).) The petition was denied six weeks later. (Lodgment No. 8, People v. Lee, No. S121750, order at 1 (Cal. Feb. 18, 2004).)

  On December 22, 2004, Lee, proceeding pro se, filed a Petition for Writ of Habeas Corpus [doc. no. 1] in the United States District Court for the Southern District of California pursuant to 28 U.S.C. § 2254. The Petition was dismissed without prejudice [doc. no. 4] on January 3, 2005, for failure to pay the filing fee and to name a proper respondent. (Order Dismissing Case at 1-2.) Petitioner filed a First Amended Petition [doc. no. 5] on January 7, 2005, and a Second Amended Petition [doc. no. 8] on February 28, 2005.

  This Court issued a Notice Regarding Possible Failure to Exhaust and One-Year Statute of Limitations [doc. no. 10] on March 5, 2005. Thereafter, Lee, again proceeding pro se, filed a Petition for Writ of Habeas Corpus in the California Supreme Court asserting a claim for ineffective assistance of counsel. (Traverse Ex. A at 3.) The state petition was denied on April 13, 2005. (Traverse Ex. B at 1.)

  On April 22, 2005, Respondent filed an Answer to the pending Petition [doc. No. 11]. Lee filed a Traverse [doc. no. 14] on May 24, 2005.

  Subsequently, the Court ordered briefing [doc. no. 15] on the issue of mootness because Lee's informal probation expired on August 20, 2005. Respondent Iaria submitted his Response to the Court's Order [doc. no. 16] on August 18, 2005. Petitioner filed his declaration [doc. no. 18] in response to the Order on August 24, 2005.

  III. STANDARD OF REVIEW

  The "Antiterrorism and Effective Death Penalty Act" (AEDPA), 28 U.S.C. § 2244, applies to all federal habeas petitions filed after April 24, 1996. Woodford v. Garceau, 538 U.S. 202, 204 (2003) (citing Lindh v. Murphy, 521 U.S. 320, 326 (1997)). AEDPA sets forth the 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.A. § 2254(a) (West 1994); see Reed v. Farley, 512 U.S. 339, 347 (1994); Hernandez v. Ylst, 930 F.2d 714, 719 (9th Cir. 1991). Because Lee's Petition was filed in this Court on December 22, 2004, AEDPA applies to this case. See Woodford, 538 U.S. at 204.

  In 1996, Congress "worked substantial changes to the law of habeas corpus." Moore v. Calderon, 108 F.3d 261, 263 (9th Cir. 1997). Amended § 2254 (d) now reads:

An application for a writ of habeas corpus on behalf of a person in custody pursuant to the judgment of a State court shall not be granted with respect to any claim that was adjudicated on the merits in State court proceedings unless the adjudication of the claim —
(1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States; or
(2) resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding.
28 U.S.C.A. § 2254 (d) (West Supp. 2005).

  To present a cognizable federal habeas corpus claim, a state prisoner must allege that his conviction was obtained in "violation of the Constitution or laws or treaties of the United States." See 28 U.S.C.A. § 2254(a). Petitioner must allege that the state court violated his federal constitutional rights. See Reed, 512 U.S. at 347; Hernandez v. Ylst, 930 F.2d at 719; Jackson v. Ylst, 921 F.2d 882, 885 (9th Cir. 1990).

  A federal district court does "not sit as a `super' state supreme court" with general supervisory authority over the proper application of state law. Smith v. McCotter, 786 F.2d 697, 700 (5th Cir. 1986); see also Lewis v. Jeffers, 497 U.S. 764, 780 (1990) (holding that federal habeas courts must respect a state court's application of state law); Jackson, 921 F.2d at 885 (concluding that federal courts have no authority to review a state's application of its law). Federal courts may grant habeas relief only to correct errors of federal constitutional magnitude. Oxborrow v. Eikenberry, 877 F.2d 1395, 1400 (9th Cir. 1989) (stating that federal courts are not concerned with errors of state law unless they rise to level of a constitutional violation).

  The Supreme Court, in Lockyer v. Andrade, 538 U.S. 63, 64 (2003), stated that "AEDPA does not require a federal habeas court to adopt any one methodology in deciding the only question that matters under § 2254 (d) (1) — whether a state court decision is contrary to, or involved an unreasonable application of, clearly established federal law." Id. at 71. In other words, a federal court is not required to review the state court decision de novo. Rather, a federal court can proceed directly to the reasonableness analysis under § 2254 (d) (1). Id.

  The "novelty" in § 2254 (d) (1) is "the reference to `Federal law, as determined by the Supreme Court of the United States.'" Lindh v. Murphy, 96 F.3d 856, 869 (7th Cir. 1996) (en banc), rev'd on other grounds, 521 U.S. 320 (1997) (emphasis added). Section 2254 (d) (1) "explicitly identifies only the Supreme Court as the font of `clearly established' rules." Id. "[A] state court decision may not be overturned on habeas corpus review, for example, because of a conflict with Ninth Circuit-based law." Moore, 108 F.3d at 264. "[A] writ may issue only when the state court decision is `contrary to, or involved an unreasonable application of,' an authoritative decision of the Supreme Court." Id.; see also Baylor v. Estelle, 94 F.3d 1321, 1325 (9th Cir. 1996); Childress v. Johnson, 103 F.3d 1221, 1225 (5th Cir. 1997); Devin v. DeTella, 101 F.3d 1206, 1208 (7th Cir. 1996).

  Furthermore, with respect to the factual findings of the trial court, AEDPA provides:

In a proceeding instituted by an application for a writ of habeas corpus by a person in custody pursuant to the judgment of a State court, a determination of a factual issue made by a State court shall be presumed to be correct. The applicant shall have the burden of rebutting the presumption of correctness by clear and convincing evidence.
28 U.S.C.A. § 2254 (e) (1) (West Supp. 2005).

  IV. DISCUSSION

  In his Second Amended Petition, Lee alleges two grounds for relief: (1) He was denied his Sixth and Fourteenth Amendment right to put on a defense when the trial court excluded a witness who alleged excessive force during his arrest by the same deputy who arrested Lee; and (2) he was denied his Sixth and Fourteenth Amendment right to confront witnesses against him when the trial court limited cross-examination of Deputy Stebbing on the issue of prior complaints of excessive force. (Second Am. Pet. 6-7.)

  Respondent argues: (1) Petitioner's claims should be dismissed because they are procedurally defaulted, and (2) the California Court of Appeal's decision on Lee's claims was not objectively unreasonable. (Answer 2, 5-6, 8-9.)

  In response to Respondent's procedural default defense, in his Traverse, Petitioner asserts for the first time that trial counsel's failure to preserve his Sixth Amendment arguments for appeal constituted ineffective assistance of counsel. (Traverse 2-3.)

  As a preliminary matter, the Court finds that because of the adverse collateral consequences of conviction alleged by Lee, this case is not moot. (Dec. of Jesse Lee 1, filed Aug. 22, 2005; see Wilson v. Terhune, 319 F.3d 477, 479-80 (2003) (citing Chacon v. Wood, 36 F.3d 1459, 1463 (1994) (citations omitted)).) Consequently, the Court will consider the substance of Petitioner's claims.

  A. Sixth Amendment Right to Effective Assistance of Counsel

  Lee's Second Amended Petition challenges his conviction based upon a violation of the constitutional rights to present a defense and confront witnesses. (Second Am. Pet. 6-7.) Petitioner did not argue he had received ineffective assistance of counsel during trial until his Traverse. (Traverse 2.) The Order [doc. no. 9], dated March 4, 2005, reopening this case and requiring an answer to the Second Amended Petition (mistakenly titled "First Amended Petition for Writ of Habeas Corpus") clearly states: "Any Traverse by Petitioner . . . shall not raise new grounds for relief that were not asserted in the Petition." (Order Reopening Case 3); see Cacoperdo v. Demosthenes, 37 F.3d 504, 507 (9th Cir. 1994) (stating that "[a] [T]raverse is not the proper pleading to raise additional grounds for relief[]"); see also United States v. Barrett, 178 F.3d 34, 46-47 n. 6 (1st Cir. 1999) (citing Cacoperdo, 37 F.3d at 507). Ineffective assistance of counsel is a new ground for relief not raised in Lee's operative Petition.

  There is case law which suggests that the Court may consider claims raised for the first time in a filing other than an original or amended habeas petition. See United States v. Howell, 231 F.3d 615, 621 (9th Cir. 2000) (holding that court has discretion to consider evidence presented for the first time in an objection to a magistrate judge's report and recommendation). In Lee's case, even if the Court evaluated the merits of his belated ineffective assistance of counsel claim, it would not entitle him to relief. As discussed more fully below, in connection with whether Lee's claims are procedurally defaulted, trial counsel's error did not prejudice Lee. Absent prejudice, the failure to assert a Sixth Amendment violation will not entitle him to habeas relief. See Strickland v. Washington, 466 U.S. 668, 687 (1984). For these reasons, the Court should decline to consider the ineffective assistance of trial counsel claim asserted in the Traverse.

  B. Sixth and Fourteenth Amendment Right to Present a Defense

  Lee argues he was denied his Sixth and Fourteenth Amendment right to put on a defense when the trial court excluded the testimony of Jesus Colin, a witness who alleged excessive force during his arrest by the same deputy who arrested Petitioner.*fn2 (Second Am. Pet. 6.) The California Court of Appeal held that "because Lee did not object at trial that excluding [the witness's] testimony would violate his constitutional right to present a defense, he cannot do so now." (Lodgment No. 6, People v. Lee, No. D040738, slip op. at 7-8.) Nevertheless, the court considered the merits of Lee's claim and concluded that he was not entitled to relief. (Id. at 8-14.) Respondent argues that Lee's claims are procedurally barred. (Answer 5-6.) Although the California Court of Appeal addressed the substance of Petitioner's constitutional claims, a separate and alternative discussion of the merits of a procedurally barred claim does not prevent the application of an adequate and independent state bar. Harris v. Reed, 489 U.S. 255, 264 n. 10 (1989). Nor does a separate discussion of the merits necessarily render the state court's decision ambiguous as to the basis of disposition. See Coleman, 501 U.S. 722, 732-33 (1991). A constitutional claim is procedurally defaulted when a state court clearly and expressly applies an adequate and independent state rule as a separate basis for disposition. Harris, 489 U.S. at 264 n. 10. Federal habeas review of that claim is precluded unless the petitioner "can demonstrate cause for the default and prejudice as a result of the alleged violation of federal law, or demonstrate that failure to consider the claim[] will result in a fundamental miscarriage of justice." Coleman v. Thompson, 501 U.S. at 750; High v. Ignacio, 408 F.3d 585, 590 (9th Cir. 2005) (citing Coleman, 501 U.S. at 750); Franklin v. Johnson, 290 F.3d 1223, 1230-31 (9th Cir. 1992).

  The respondent has the burden of pleading an adequate and independent procedural bar as an affirmative defense in a habeas case. See Bennett v. Mueller, 322 F.3d 573, 585 (9th Cir. 2003). The burden of proof then shifts to the petitioner to place that defense in issue — for example, by asserting factual allegations demonstrating the inadequacy of the state procedure, including citations to case authority that demonstrate inconsistent application of the state rule. Id. at 586. If the factual allegations are made, the burden shifts back to the respondent to demonstrate the bar is applicable. Id.

  Here, Respondent asserted the procedural bar as an affirmative defense to Lee's Second Amended Petition by arguing Petitioner's claims are procedurally defaulted due to his failure to timely object at trial on federal constitutional grounds. (Answer 5-6.) In making this procedural bar argument, the Respondent relies on the holding of the California Court of Appeal. (Id. at 5.)

  The California Supreme Court was the last state court presented with Lee's claims for violation of the right to present a defense and the confrontation clause. (See Lodgment No. 7, Petition for Review at 6, 15, People v. Lee, No. S121750.) Because the denial of the petition for review was issued without explanation, this Court must "look through" to the last reasoned decision — the court of appeal's opinion. See Ylst v. Nunnemaker, 501 U.S. 797, 803 (1991). We may presume "[w]here there has been one reasoned state judgment rejecting a federal claim, later unexplained orders upholding that judgment or rejecting the claim rest upon the same ground." Id. The court of appeal explicitly invoked the state procedural bar rule requiring that contemporaneous constitutional objections be made at trial to preserve issues for appeal. (Lodgment No. 6, People v. Lee, No. D040738, slip op. at 7-8, 14-15 n. 4.)

  Petitioner asserts that he was procedurally barred because of trial counsel's deficient performance in violation of Lee's Sixth Amendment right to effective assistance of counsel. (Traverse 2-3.) Lee argues application of the procedural rule to his circumstances is improper. As discussed below, the rule is both adequate and independent.

  1. Adequacy of State Procedural Rule

  A state procedural rule is "adequate" when the rule is "firmly established and regularly followed" at the time of the purported procedural default. Anderson v. Calderon, 232 F.3d 1053, 1077 (9th Cir. 2000) (citations and quotations omitted) overruled on other grounds by Bittaker v. Woodford, 331 F.3d 715, 728 (9th Cir. 2003). The Ninth Circuit has also held the state procedural rule must be clear and consistently applied at the time of petitioner's default. Wells v. Maass, 28 F.3d 1005, 1010 (9th Cir. 1994) (citations omitted).

  The Ninth Circuit has found the "contemporaneous objection rule" to be an adequate procedural bar. See Rich v. Calderon, 187 F.3d 1064, 1070 (9th Cir. 1999). In California, the rule requiring timely objection at trial on specific constitutional grounds is clear, settled, and consistently applied. See Vansickel v. White, 166 F.3d 953, 957 (9th Cir. 1999) (citing People v. Caro, 46 Cal. 3d 1035, 761 P.2d 680, 251 Cal. Rptr. 757 (1988) (stating that Vansickel's claim was procedurally barred because he failed to contemporaneously object at trial on federal constitutional grounds); see People v. Seijas, 36 Cal. 4th 291, 301, ___ P.3d ___, ___, 30 Cal. Rptr. 3d 493, 501 (2005) (stating the "general rule that questions relating to the admissibility of evidence will not be reviewed on appeal in the absence of a specific and timely objection in the trial court on the ground sought to be urged on appeal") (citations omitted); People v. Boyette, 29 Cal. 4th 381, 424, 58 P.3d 391, 418, 127 Cal. Rptr. 2d 544, 577 (2002) (stating that objections to evidence must be timely made to give the court time to "`remedy the situation before any prejudice accrues'" (citing People v. Taylor, 31 Cal. 3d 488, 496, 645 P.2d 115, 120, 183 Cal. Rptr. 64, 69 (1982))); People v. Gordon, 50 Cal.3d 1223, 1240 n. 2, 792 P.2d 251, 260 n. 2, 270 Cal. Rptr. 451, 460 n. 2 (1990) (stating objections based on the admissibility of evidence alone do not preserve constitutional grounds for appeal (citing People v. Rogers, 21 Cal. 3d 542, 548, 579 P.2d 1048, 1051-52, 146 Cal. Rptr. 732, 735-56 (1978) (citations omitted))). Therefore, the rule is an adequate state bar.

  2. Independence of State Procedural Rule

  A state procedural rule is "independent" when the "state law basis for the decision [is] not . . . 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); Harris, 489 U.S. at 265). A state law basis is interwoven with federal law when "`the state has made application of the procedural bar depend on an antecedent ruling on federal law [such as] the determination of whether federal constitutional error has been committed.'" Park v. California, 202 F.3d 1146, 1152 (9th Cir. 2000) (citing Ake v. Oklahoma, 470 U.S. 68, 75 (1985)). A state court may consider the merits in an alternative holding as long as it expressly invokes a procedural bar as a separate basis for the decision. Harris, 489 U.S. at 264 n. 10.

  The California contemporaneous objection rule is independent of federal law because its application does not rely on any antecedent rulings on federal law. Lee's trial counsel failed to cite specific federal constitutional grounds in his motion in limine to admit the testimony of Jesus Colin. (Lodgment No. 1, Clerk's Tr. Vol. 1, at 94-96). Counsel also failed to object on specific federal constitutional grounds when the trial court denied his motion in limine and excluded Colin's testimony. (Lodgment No. 2, Rep.'s Trial Tr. vol. 5, at 866-67.) The court of appeal held "because Lee did not object at trial that excluding [Colin's] testimony would violate his constitutional right to present a defense, he cannot do so now. (Lodgment No. 6, People v. Lee, No. D040738, slip op. at 7-8.) The court's alternative holding on the merits does not make the state procedural bar any less independent of federal constitutional law. Lee is procedurally barred from raising the argument that the trial court's exclusion of Colin's testimony violated the Sixth and Fourteenth Amendments because the contemporaneous objection rule is an adequate and independent state doctrine.

  3. Cause of Default — Ineffective Assistance of Trial Counsel

  When federal habeas review of a claim is barred by a state procedural rule, to overcome the bar, a petitioner must "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. Coleman, 501 U.S. at 750; High v. Ignacio, 408 F.3d at 590 (citing Coleman, 501 U.S. at 750).

  In his Traverse, Petitioner asserts that ineffective assistance of trial counsel caused the default. Counsel's failure to contemporaneously object at trial on specific federal constitutional grounds resulted in a state procedural bar to federal habeas review. (Traverse 2-3.)

  In Garrison v. McCarthy, 653 F.2d 374, 378 (9th Cir. 1981), the Ninth Circuit discussed the difference between failure to contemporaneously object at trial as a tactical decision and failure to object as a result of attorney inadvertence or ignorance of the law. "[T]he threshold of the cause prong cannot be met when the attorney makes a tactical decision not to object, unless [Lee] can show that the decision constitute[d] a Sixth Amendment violation." Id. To establish a constitutional violation, Petitioner must demonstrate that trial counsel's failure to object on specific federal constitutional grounds "was an error that `a reasonably competent attorney acting as a diligent conscientious advocate would not have made. . . .'" Id. (citing Cooper v. Fitzharris, 586 F.2d 1325, 1330 (9th Cir. 1978)). In addition, Lee must establish a "reasonable probability that but for counsel's error, the result of the trial would have been different." Vansickel, 166 F.3d at 378 (citing White v. Lewis, 874 F.2d 599, 604 (9th Cir. 1989)); see Strickland v. Washington, 466 U.S. at 694.

  Ninth Circuit decisions differ on the showing necessary to establish `cause' based on attorney inadvertence or ignorance. See Garrison, 653 F.2d at 378 (stating that "a lesser showing of incompetency of counsel should be sufficient for `cause'") (citing Collins v. Auger, 577 F.2d 1107, 1110 n. 2 (8th Cir. 1978) (dictum), cert. denied, 439 U.S. 1133 (1979); see also Vansickel, 166 F.3d at 958; contra Correll v. Stewart, 137 F.3d 1404, 1416 (9th Cir. 1998) (citing Murray v. Carrier, 477 U.S. 478, 488-89 (1986) (stating that attorney inadvertence or ignorance of the law does not establish cause for a procedural default unless it is the result of ineffective assistance of counsel)).

  In the motion in limine filed before trial, Lee's counsel failed to describe how the exclusion of Colin's testimony would violate Lee's federal constitutional rights. (See Lodgment No. 1, Clerk's Tr. vol. 1, at 94-96; see also Lodgment No. 2, Rep.'s Trial Tr. vol. 5, at 865.) The failure to cite specific federal constitutional grounds cannot reasonably be labeled a "strategic decision" when trial counsel described the testimony as "vital" to Lee's defense. (Lodgment No. 1, Clerk's Tr. Vol. 1, at 95.)

  The California contemporaneous objection rule is clear, settled, and consistently applied. Citations to evidence codes and other general language are insufficient to preserve a federal constitutional claim for appeal. See People v. Seijas, 36 Cal. 4th at 301, ___ P.3d at ___, 30 Cal. Rptr. 3d at 502 (stating the "general rule that questions relating to the admissibility of evidence will not be reviewed on appeal in the absence of a specific and timely objection in the trial court on the ground sought to be urged on appeal") (citations omitted) People v. Gordon, 50 Cal.3d at 1240 n. 2, 792 P.2d at 260 n. 2, 270 Cal. Rptr. at 460 n. 2 (1990) (stating objections based on the admissibility of evidence alone do not preserve constitutional grounds for appeal (citing People v. Rogers, 579 P.2d at 1051-52, 146 Cal. Rptr. at 735-56 (citations omitted))). Trial counsel's failure to properly preserve Petitioner's Sixth Amendment claims is an error that a reasonably competent attorney would not have made. However, Lee "cannot establish prejudice because there is no reasonable probability that but for counsel's error, the result of the trial would have been different." Vansickel, 166 F.3d at 378 (citing White v. Lewis, 874 F.2d 599, 604 (9th Cir. 1989); Strickland v. Washington, 466 U.S. at 694. First, as a matter of state law, the trial court did not err in excluding Lee's proffered evidence. (See Lodgment No. 6, People v. Lee, D040738, slip op. at 8-12.) Next, to support a claim for habeas corpus relief, "[t]he state court's decision to exclude certain evidence must be so prejudicial as to jeopardize the defendant's due process rights." Whelchel v. Washington, 232 F.3d 1197, 1211 (9th Cir. 2000).

  Although the state court concluded that Lee's Sixth Amendment claim was waived, it considered the claim on the merits. (Lodgment No. 6, People v. Lee, D040738, slip op. at 7-8.) The California Court of Appeal held that "[e]ven had Lee properly objected, . . . the exclusion of the proffered testimony did not violate any of Lee's constitutional rights." (Lodgment No. 6, People v. Lee, No. D040738, slip op. at 8.)

  In this circuit, the Court considers the following factors to determine whether the exclusion of defense evidence raises a due process claim:

(1) the probative value of the excluded evidence on the central issue; (2) its reliability; (3) whether it is capable of evaluation by the trier of fact; (4) whether it is the sole evidence on the issue or merely cumulative; and (5) whether it constitutes a major part of the attempted defense.
Whelchel v. Washington, 232 F.3d at 1211. If constitutional rights are implicated, the Court balances the importance of the evidence against the state's interest in its exclusion. Id. This Court finds there was no constitutional error in excluding testimony from Jesus Colin. In reaching the same conclusion, the California Court of Appeal did not unreasonably apply clearly established federal law. (See Lodgment No. 6, People v. Lee, D040738, slip op. at 8-9.) Therefore, Petitioner cannot excuse the procedural default of his claim by asserting ineffective assistance of trial counsel. Similarly, he has not demonstrated that a failure to consider his contention would result in a fundamental miscarriage of justice. See Coleman v. Thompson, 501 U.S. at 729-30.

  C. Sixth and Fourteenth Amendment Right to Confrontation

  Lee also argues he was denied his Sixth and Fourteenth Amendment right to confront witnesses against him when the trial court limited the cross-examination of Deputy Stebbing on prior complaints of excessive force. (Second Am. Pet. 7.)

  The California Court of Appeal again held Petitioner's failure to object at trial on specific federal constitutional grounds precluded his appeal. (Lodgment No. 6, People v. Lee, No. D040738, slip op. at 14-15 n. 14.) Thus, Lee is procedurally barred from raising his argument that the trial court's decision to limit cross examination of Deputy Stebbing violated Petitioner's federal constitutional rights.

  1. Cause of Default — Ineffective Assistance of Trial Counsel

  In his Traverse, Petitioner asserts the procedural default barring federal habeas review of his right to confront claim was also caused by ineffective assistance of trial counsel. (Traverse 2-3.) After the trial court denied Lee's motion in limine to admit Colin's testimony, counsel requested the opportunity to cross-examine Deputy Stebbing on a prior excessive force complaint. (Lodgment No. 2, Rep.'s Trial Tr. vol. 5, at 865) Trial counsel failed to cite specific federal constitutional grounds entitling Petitioner to cross-examine Stebbing on this matter. Id. This error is one that `a reasonably competent attorney acting as a diligent conscientious advocate would not have made. . . .'" Garrison, 653 F.2d at 378 (citing Cooper, 586 F.2d at 1330 (citations omitted)).

  Nevertheless, Petitioner cannot establish that he was prejudiced by this error. The California Court of Appeal held "[e]ven if . . . the court understood [Lee's] objection to be on constitutional grounds, the limitation on [Deputy] Stebbing's cross-examination did not substantially implicate any Sixth Amendment protections." (Lodgment No. 6, People v. Lee, No. D040738, slip op. at 14-15 n. 4.) The exclusion of this evidence was not so prejudicial as to jeopardize Lee's due process rights. See Whelchel v. Washington, 232 F.3d at 1211.

  Petitioner cannot excuse the procedural default of his right to confront claim by asserting ineffective assistance of trial counsel. The failure to consider this claim would not result in a fundamental miscarriage of justice.

  V. CONCLUSION

  Petitioner's Second Amended Petition for Writ of Habeas Corpus should be DENIED because his claim for ineffective assistance of counsel is not properly pled before this Court, and federal habeas review of the right to present a defense and confront witnesses is procedurally barred for Lee's failure to follow the California contemporaneous objection rule. The exclusion of Colin's testimony and the limitation on the cross-examination of Deputy Stebbing were based upon an adequate and independent state doctrine.

  This Report and Recommendation will be submitted to the United States District Court judge assigned to this case, pursuant to the provisions of 28 U.S.C. § 636(b)(1). Any party may file written objections with the Court and serve a copy on all parties on or before November 30, 2005. The document should be captioned "Objections to Report and Recommendation." Any reply to the objections shall be served and filed on or before December 19, 2005. The parties are advised that failure to file objections within the specified time may waive the right to appeal the district court's order. Martinez v. Ylst, 951 F.2d 1153, 1157 (9th Cir. 1991).

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