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IBARRA v. HERNANDEZ

United States District Court, S.D. California


November 10, 2005.

FRANCISCO IBARRA, Petitioner,
v.
ROBERT HERNANDEZ, Warden, Respondent.

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

ORDER DENYING PETITION FOR WRIT OF HABEAS CORPUS AND ADOPTING REPORT AND RECOMMENDATION GRANTING MOTION TO DISMISS
Petitioner, a state prisoner appearing pro se, filed a First Amended Petition for Writ of Habeas Corpus ("First Amended Petition") challenging his conviction pursuant to 28 U.S.C. § 2254. On March 5, 2005, Respondent moved to dismiss the First Amended Petition as procedurally defaulted. Petitioner filed an opposition on June 20, 2005. On July 28, 2005, the Magistrate Judge filed a Report and Recommendation for Order Granting Motion to Dismiss Petition for a Writ of Habeas Corpus. After careful consideration, the Court DENIES the petition for writ of habeas corpus and ADOPTS the report and recommendation granting Respondent's motion to dismiss.

Background

  On October 18, 1999, Petitioner was convicted of attempted transportation of a controlled substance while a principal was armed with a firearm. Petitioner was personally armed with a firearm, and the crime involved than four kilograms of cocaine in violation of California Health & Safety Code sections 11352(a), 11370.4(a)(2) and California Penal Code sections 12022(a)(1), (c). Petitioner was also convicted of attempted purchase or possession of a controlled substance for sale while a principal was armed with a firearm. Petitioner was personally armed with a firearm in violation of California Health & Safety Code section 11351 and California Penal Code sections 664, 12022(a)(1), 12022(c). Petitioner was convicted with armed criminal action in violation of California Penal Code section 12023, and attempted armed robbery in violation of California Penal Code sections 664, 211, 12022(a)(1). (Lodgment 1(c) at 2.)

  Petitioner was convicted of three counts of conspiracy to commit these offenses and was subject to enhanced sentencing because a principal was armed with a firearm in violation of California Penal Code sections 182, 12022(a)(1). (Id. at 1.) Furthermore, the jury found that Petitioner was substantially involved in the planning, direction, execution or financing in two of the counts of conspiracy and that the amount of cocaine exceeded four kilograms in violation of California Health & Safety Code section 11370.4(a)(2). (Id.) The trial court sentenced Petitioner to 14 years in prison. (First Am. Pet. at 1.)

  Petitioner appealed both his conviction and sentence to the California Court of Appeal. (Lodgment 1(c).) In this appeal Petitioner asserted eight claims: (1) insufficiency of the evidence, (2) improper admission of testimony in English regarding conversations held in Spanish; (3) abuse of discretion in allowing the prosecution to play a prejudicial video; (4) prosecutorial misconduct; (5) failure to properly instruct the jury on specific intent; (6) failure to issue requested jury instructions; (7) failure to properly instruct the jury about prerequisite findings regarding an accomplice; and (8) failure to strike two of three conspiracy convictions. (Id.) On November 5, 2001, the Court of Appeal struck two of the conspiracy convictions but affirmed Petitioner's other convictions. (Id. at 31.)

  In a letter dated November 8, 2001, Petitioner's appellate counsel advised Petitioner of the option of filing a petition to appeal the Court of Appeal's decision to the California Supreme Court and of the requisite filing period. (Pet'r Opp'n to Mot. to Dismiss ("Pet'r Opp'n"), Ex. B.) Petitioner asserts that he filed a petition seeking direct review in November or December of 2001.*fn1 (Id. at 2, 6.) However, the Supreme Court of California did not receive that petition. (See id., Exs. C & D.) Around August 1, 2002, Petitioner filed a petition that the California Supreme Court received on August 12, 2002. (Id., Exs. C, D.) That petition repeated only four of the claims Petitioner asserted in the Court of Appeal: (1) insufficiency of the evidence; (2) violation of due process by admitting testimony in English regarding conversations held in Spanish; (3) abuse of discretion in allowing the prosecution to play a prejudicial video; and (4) failure to properly instruct the jury on specific intent.*fn2 (Id., Ex. C at 2, 5-6, 9.) In a letter dated August 30, 2002, the clerk of the California Supreme Court rejected the August 12th petition, informing Petitioner that this petition for direct review was untimely and suggesting that Petitioner seek habeas relief. (Id., Ex. D.) Petitioner did not file a petition for certiorari in the United States Supreme Court.

  On January 16, 2003, Petitioner filed a petition for a writ of habeas corpus with the California Supreme Court. (Lodgment 2(a).) This petition revived all eight of the claims Petitioner made in the Court of Appeal including the claim concerning the two conspiracy convictions stricken by the Court of Appeal. (Id.) On September 17, 2003, the court summarily denied these claims with a citation to In re Waltreus, 62 Cal. 2d 218 (1965). (Lodgment 2(b).)

  On October 29, 2003, Petitioner initiated this action by filing a petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. Pursuant to the Court's order filed on November 6, 2003, Petitioner filed a first amended petition on September 16, 2004. The first amended petition asserts four claims: (1) insufficiency of the evidence; (2) violation of due process by admitting testimony in English regarding conversations held in Spanish; (3) abuse of discretion in allowing the prosecution to play a prejudicial video; and (4) failure to properly instruct the jury on specific intent.

  On March 5, 2005, Respondent filed a motion to dismiss the first amended petition arguing that the claims are procedurally defaulted. On June 20, 2005, Petitioner filed an opposition contending that his claims are not procedurally defaulted because he attempted to file a timely petition for direct review. The Magistrate Judge filed a report and recommendation granting Respondent's motion to dismiss the petition on July 28, 2005.

  Factual Background

  The following factual background is taken from the court of appeal opinion in People v. Ibarra, unpublished opinion (Cal.Ct.App., 4th Dist., Div. 1, Nov. 5, 2001). The Court presumes these factual determinations are correct pursuant to 28 U.S.C.A. § 2254(e)(1).

 

On January 8, 1999, about 9:00 a.m., a confidential informant was in a car repair shop north of downtown Los Angeles working on his car when Moises Mota entered the shop and asked some men in the shop where he could buy some drugs. Mota was referred to the informant who had a reputation for being a drug dealer. Mota told the informant he wanted to purchase five kilos of cocaine. The informant told Mota he knew someone who could supply the cocaine but that he would have to telephone him. The informant called Sergeant Jose Nava of the Imperial County Narcotics Task Force and told Nava that Mota and an unidentified associate wanted to purchase five kilos of cocaine for $65,000.
About 1:45 p.m., Nava spoke to Mota on the telephone. Mota told Nava he was from Seattle, had been in Los Angeles for about a week trying to buy drugs, and wanted to buy five kilos. Nava said he could deliver the five kilos to Mota the following day in Ontario, but Mota said he wanted to take delivery that day and would be willing to pick up the kilos in Indio because he had a cousin who lived there. Nava agreed.
The "cousin" was Juan Sanchez who had known Mota about four months and Ibarra about three months. Mota contacted Sanchez, first indicating that he was going to buy drugs and later indicating that he was going to steal drugs.*fn3 Mota wanted Sanchez's assistance because Sanchez was familiar with the area. Mota offered to pay Sanchez $5,000 for his assistance. Sanchez knew Mota and Ibarra were drug thieves because they told him they had stolen drugs before. Sanchez brought a gun he had bought about two weeks earlier on the streets of Los Angeles. Sanchez carried the gun because they had invited him to help steal the cocaine. The plan was to convince the drug dealer to come to Sanchez's house*fn4 where they would steal the drugs.
About 5:20 p.m. that day, Mota called Nava and told him they were stuck in traffic in Riverside. About two hours later, Mota called Nava, said that he was at his cousin's house in Thousand Palms and wanted Nava to come to that house. Nava refused to go to the house. Mota again asked Nava to come to the house because they were carrying so much money. Nava again refused. Nava's practice was not to go to a house (or even a hotel room) that he did not know because it was too dangerous. Finally, Mota agreed to meet Nava at a truck stop and Mota put Sanchez on the phone to get the directions to the truck stop.
About 8:00 p.m., Nava and his partner, German Duran, met Mota at the truck stop. Mota said that he was not ready to complete the transaction because he did not have the money and wanted to complete the deal the next day. Nava pretended to be angry about Mota wasting time and money by insisting the deal be done that night. Nava and Duran left.
About an hour later, Sanchez called Nava and asked if he and Mota had reached an agreement. Nava said no and complained about Mota wasting his time. Nava also commented that Mota had appeared nervous and scared. Sanchez said Mota was nervous because he was not familiar with the area. Sanchez told Nava that they would be willing to go to Nava's ranch to conduct the deal. Nava agreed.
The next morning about 9:00 a.m., Nava paged Mota who shortly thereafter returned his call. Nava instructed Mota to meet the informant at the truck stop and told him the informant would take Mota to Nava's ranch.
About 1:15 p.m., Mota Sanchez and Ibarra met with Nava at the parking lot of the Firehouse Café. Sanchez was driving, Mota was in the front passenger seat and Ibarra was in the right rear passenger seat. Nava asked who was in charge. Sanchez indicated Mota was in charge. Nava and Mota walked about 20 yards away from Ibarra and Sanchez. Nava asked if this was a one-time purchase or whether there would be future purchases. Mota indicated that if everything went well, he would be buying five to eight kilos of cocaine per week, but first he needed to see one kilo to check out the quality of the cocaine. Nava suggested Mota go with him to pick up the kilo but Mota refused.
Sanchez came up to Nava and Mota and said they should be going to a house whre they could conduct the transaction in private. Nava told Sanchez that he was not going to go to anybody's house for a first transaction and again asked Mota to go with him to pick up the kilo and ceck out its quality. Mota again refused, but Sanchez agreed to go with Nava. Sanchez and Nava got into Nava's car and drove about two blocks to where Duran was waiting with a kilo of cocaine taken from "the reverse sting stock." Nava instructed Duran to bring the kilo over to the Firehouse Cafe parking lot so that Sanchez could examine it. Nava and Sanchez returned to the Firehouse Café. When Duran arrived, Sanchez got into Duran's car. Duran showed the kilo to Sanchez, including cutting open the package to expose the cocaine. Sanchez looked at it and said, "Yeah, this is good stuff." Sanchez asked if he could take a sample. Duran said no (because he had orders to allow no samples) but Sanchez nevertheless took some of the cocaine out of the package and put it in his pocket. Sanchez walked over to where Nava, Mota and Ibarra were standing and told Mota it appeared to be good merchandise. Mota said they would have to get the money and would contact Nava.
About 1:15 p.m., Mota contacted Nava, said they did not want to conduct the transaction at Nava's ranch because they had seen border patrol units in the area, and again requested Nava to conduct the transaction at Sanchez's house, offering Nava an additional $300 per kilo if he so agreed. Nava told Mota the deal was off if the transaction were not conducted at his ranch. Sanchez then got on the phone, asked if Nava would be willing to do the transaction closer to their home and offered to pay more money if Nava agreed. Nava agreed, saying he would contact them and have them meet at the truck stop with the informant who would then take them to Nava's location.
About 4:00 p.m., with the assistance of the informant, Nava met with Mota, Sanchez and Ibarra at a convenience store in Coachella. Ibarra was driving, Sanchez was in the front passenger seat and Mota was in the back seat. Duran was present, as was the informant. Members of the Imperial County Narcotics Task Force were in the surrounding area.
Nava asked Mota who he should talk to. Mota indicated Nava should talk to Sanchez. Nava and Sanchez walked to the front of the vehicle. While Nava spoke with Sanchez, Duran stood outside the vehicle talking with Ibarra. Duran asked Ibarra what the weather was like in Washington (where he were supposedly from). When Ibarra said that it was pretty cold, Duran asked if it ever snowed there. Ibarra responded, "Sometimes it does." Duran then asked "if there was snow in Washington, why would they come [to Southern California] to buy snow," "snow" being a slang word for cocaine. Ibarra answered that the cocaine was cheaper in Southern California, and when Duran asked how much a kilo cost in Washington, Ibarra answered about $20,000.
Meanwhile, Nava had told Sanchez that he needed to see the money before he turned over the cocaine, and had indicated the cocaine was in a car located 400 to 500 yards away. They returned to the defendants' car, where Sanchez told Mota what Nava had said. Mota said he was not going to conduct a transaction in that parking lot since they had not seen the five kilos. Nava asked Mota if they had the money and when Mota said they did, Nava asked to see it. Mota told Sanchez (who was sitting in the front passenger seat) to show Nava the money. Sanchez picked up a black plastic bag off the floor of the vehicle and pulled out a bundle of money. Nava saw that it was a "dummy roll," with $50 bills on the top and bottom and $20 bills in the middle. Nava asked to see the rest of the money. When they responded no and said they were not going to do the transaction there, Nava gave the arrest signal because he believed it was "rip," i.e., that Mota, Sanchez and Ibarra were intending to steal the drugs and possibly harm him and Duran.
Ibarra, Sanchez and Mota were armed with loaded handguns. The money in the black pastic bag amounted to about $6,000 far less than the agreed price of $80,000 ($65,000 plus an extra $300 per kilo for driving it north to Coachella). There were five bundles of money, each with $50 bills on the outside. Four of the rolls had $1 bills in the middle.
Nava's belief that this was a rip was based on not only on the fact that they had shown him a dummy roll and refused to show him the rest of the money, but also because of Mota's nervousness and the fact that they had repeatedly tried to get him to conduct the deal at their house despite his clear refusals. If it had been a "legitimate transaction," all the money would have been there, they would have shown him the money, he would have shown them the drugs and the exchange would have been made. Nava testified the amount of cocaine involved indicated that it was being purchased for resale.
(Lodgment 1(c)).

  Discussion

  The petition presents four claims: (1) insufficiency of the evidence; (2) violation of due process by admitting testimony in English regarding conversations held in Spanish; (3) abuse of discretion in allowing the prosecution to play a prejudicial video; and (4) failure to properly instruct the jury on specific intent.

  A. Scope of Review

  28 U.S.C. § 2254(a) provides:

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). As amended, the AEDPA now reads:
(d) 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 State court proceeding.
28 U.S.C.A. § 2254(d) (emphasis added).

  To obtain federal habeas relief, Petitioner must satisfy either § 2254(d)(1) or § 2254(d)(2). See Williams v. Taylor, 529 U.S. 362, 403 (2000). The threshold question is whether the rule of law was clearly established at the time petitioner's state court conviction became final. Williams v. Taylor, 520 U.S. 362, 406 (2000). Clearly established federal law, as determined by the Supreme Court of the United States "refers to the holdings, as opposed to the dicta, of this Court's decisions as of the time of the relevant state-court decision. Id. at 412; see also Lockyer v. Andrade, 538 U.S. 63, 71 (2003). However, Ninth Circuit case law may be "persuasive authority for purposes of determining whether a particular state court decision is an `unreasonable application' of Supreme Court law, and also may help us determine what law is `clearly established.'" Duhaime v. Ducharme, 200 F.3d 597, 600 (9th Cir. 2000). Only after the clearly established Federal law is identified can the court determine whether the state court's application of that law "resulted in a decision that was contrary to, or involved an unreasonable application of" that clearly established Federal law. See Lockyer, 538 U.S. at 71-72.

  A state court decision is "contrary to our clearly established precedent if the state court applies a rule that contradicts the governing law set forth in our cases" or "if the state court confronts a set of facts that are materially indistinguishable from a decision of this Court and nevertheless arrives at a result different from our precedent." Williams, 529 U.S. at 405-406. "A state-court decision involves an unreasonable application of this Court's precedent if the state court identifies the correct governing legal rule from this Court's cases but unreasonably applies it to the facts of the particular state prisoner's case" or "if the state court either unreasonably extends a legal principle from our precedent to a new context where it should not apply or unreasonably refuses to extend that principle to a new context where it should apply." Id. at 407. Under Williams, an application of federal law is unreasonable only if it is "objectively unreasonable." Id. at 409.

  Further, a state court's decision results in a "decision that was based on an unreasonable determination of the facts in light of the evidence presented in State court proceeding" if it "is so clearly incorrect that it would not be debatable among reasonable jurists." Jeffries v. Wood, 114 F.3d 1484, 1500 (9th Cir. 1997) (citations omitted).

  Where there is no reasoned decision from the state's highest court, the Court "looks through" to the underlying appellate court decision. Ylst v. Nunnemaker, 501 U.S. 797, 801-06 (1991). However, a state court need not cite Supreme Court precedent when resolving a habeas corpus claim. Early v. Packer, 537 U.S. 3, 8 (2002). "[S]o long as neither the reasoning nor the result of the state-court decision contradicts [Supreme Court precedent,]" id., the state court decision will not be "contrary to" clearly established federal law.

  B. Insufficiency of the Evidence

  A federal court in a habeas corpus proceeding has a duty to determine whether the evidence presented at trial could reasonably support the guilty verdict. Jackson v. Virginia, 443 U.S. 307, 318 (1979). This standard does not require the federal court to evaluate whether it believes the evidence shows that Petitioner was guilty beyond a reasonable doubt; rather, "the relevant question is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt." Id. at 318-19 (emphasis added).

  1. Conspiracy

  Petitioner contends there was insufficient evidence to establish he entered into an agreement with Mota and Sanchez to commit a conspiracy. Petitioner was convicted of conspiracy to commit robbery, conspiracy to sell or transport cocaine, and conspiracy to purchase or possess cocaine for sale. The court of appeal concluded that there was sufficient evidence to support his conviction of conspiracy and attempted robbery. (Lodgment 1(c) at 9-13.)

  Conspiracy requires "(1) an agreement between two or more persons; (2) with the specific intent to agree to commit a public offense; (3) with the further specific intent to commit that offense; and (e) an overt act committed by one or more of the parties for the purpose of accomplishing the object of the agreement or conspiracy." People v. Liu, 46 Cal. App. 4th 1119, 1128 (1999).

  According to Sanchez' interview conducted after his arrest, he stated that Mota and Ibarra invited him to participate in the plan to steal the drugs because he had knowledge of the local area. (Lodgment 4(f), RT Transcript at 563.) He stated that the reason he had a weapon was to take the drugs from the drug dealers by force if needed. (Id.) Sanchez stated that he knew Mota and Ibarra had previously stolen drugs before. (Id.)

  Sanchez's statements were corroborated by the repeated attempts by Mota and Sanchez to get Nava to conduct the sale at Sanchez' house despite Nava's refusal; the dummy rolls of money; the defendants' lack of money to purchase the five kilos of cocaine and the fact that Ibarra, Mota and Sanchez were all armed with concealed, loaded weapons when they were arrested. In addition, Ibarra, Mota and Sanchez arrived together when the drug transaction was to occur and Ibarra was present during conversations about the drug transaction and was knowledgeable about what was occurring. (Lodgment 4(f), RT Transcript at 538-576 (Sanchez's testimony)).

  This evidence was sufficient to show that an agreement existed among Mota, Sanchez and Ibarra to use force to steal the drugs from Nava. Therefore, there was sufficient evidence to support Petitioner's convictions for conspiracy to commit robbery, conspiracy to purchase or possess cocaine for sale and conspiracy to transport cocaine.

  2. Attempted Robbery

  "Robbery is the felonious taking of personal property in the possession of another, from his person or immediate presence, and against his will, accomplished by means of force or fear." Cal. Penal Code § 211. A crime of attempt occurs "when there is a specific intent to commit a crime and a direct but ineffectual act done towards its commission." People v. Bonner, 80 Cal. App. 4th 759, 765 (2000). The act must be more than mere preparation and need not be the last act toward the commission of the crime. Id.

  The evidence demonstrates that Petitioner entered an agreement with Sanchez and Mota to rob Nava of the cocaine. He had a concealed weapon at the final meeting, drove Mota and Sanchez to the final meeting, Mota and Sanchez had dummy rolls of money and lacked funds to pay for five kilos of cocaine and repeatedly attempted to lure Nava to Sanchez's house. Accordingly, the evidence presented could reasonably support a guilty verdict as to attempted robbery.

  Based on the evidence at trial, the Court concludes that after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. See Jackson, 443 U.S. at 318-19. Accordingly, habeas relief is not warranted on this claim.

  C. Violation of Due Process by Admitting Testimony in English Regarding Spanish Conversations

  Petitioner argues that the informant Nava's translated testimony in English regarding the statement of the co-conspirators made in Spanish is hearsay and violated his due process right to confrontation and cross-examination. The court of appeal held that no reversal is merited on this claim. (Lodgment 1(c) at 17.)

  Under the Sixth Amendment, in all criminal cases, a defendant has a constitutional right to confront and cross-examine the witnesses against him. U.S. Const. amend VI; Pointer v. Texas, 380 U.S. 400, 403-405 (1965). The Ninth Circuit has held that the admission of undercover agents' testimony as to defendant's translated statements did not violate the confrontation clause. United States v. Nazemian, 948 F.2d 522, 528 (1991). The court explained that a court should analysis on a case-by-case basis whether the translated statements should be considered the statements of the speaker. Id. at 527. The court held that the fact the interpreter was provided by the government is not dispositive of bias on the part of the interpreter. Id. at 527. There must be specific evidence of bias. Id.

  Applying the reasoning and standard set forth in Nazemian, the California Supreme Court held that admitting the officers' testimony repeating translated statements did not violate due process or the confrontation clause. Correa v. Superior Court, 27 Cal. 4th 444, 466 (2002). The court explained that contemporaneously translated statements do not add a layer of hearsay, if the statements are fairly attributable to a declarant since the translator serves as a language conduit. Id. at 448.

  At trial, Petitioner objected to Nava testifying in English and requested for a translator. (Lodgment 4(d) at 275-76; 283-85.) The prosecution then proceeded to lay a foundation regarding Nava's Spanish abilities. (Id. at 276-78.) Nava testified that Spanish was spoken in his home, that he has spoken Spanish during his work as a deputy sergeant for the past thirty years, that he had no problems communicating with Mota and Sanchez in Spanish and was familiar with Spanish drug slang. (Id.) The Court overruled Petitioner's objections concluding that a sufficient foundation had been laid that Nava had sufficient fluency in Spanish and that Nava had a vast amount of experience in the subject matter. (Id. at 287-88.) The trial court indicated that Petitioner was entitled to examine Nava as to exactly what Mota and Sanchez said in Spanish and call a Spanish language expert to challenge Nava's interpretation. (Id. at 289.)

  Nava is the person who heard the statements spoken in Spanish and is the person who testified about those statements. He was directly recounting the declarant's statement that he heard and understood. A foundation that he was proficient in the Spanish language, especially in his work as a deputy sergeant for the past 30 years, was established. Petitioner had the opportunity to cross-examine Nava as to the accuracy of his understanding as to what Mota and Sanchez said. Therefore, there was no violation of Petitioner's right to confrontation and cross-examination. Accordingly, the Court concludes that the state court's decision was not "contrary to, or involved an unreasonable application of, clearly established Federal law." See 28 U.S.C.A. § 2254(d)(1).

  D. Abuse of Discretion in Allowing the Prosecution to Play a Prejudicial Video

  Petitioner argues that the trial court abused its discretion when it admitted the videotape of the weapons' test. Respondent disagrees. A federal court reviewing a state habeas petition may not "`engage in a finely tuned review of the wisdom of state evidentiary rules.'" Estelle v. McGuire, 502 U.S. 62, 72 (1991) (quoting Marshall v. Lonberger, 459 U.S. 422, 438 n. 6 (1983)). "[A] state court's evidentiary ruling, even if erroneous, is grounds for federal habeas relief only if it is so fundamentally unfair as to violate due process." Spivey v. Rocha, 194 F.3d 971, 977 (9th Cir. 1999).

  Here, the court of appeal held that evidence to show that the guns were operational was relevant to support the inference that Petitioner and the others had an intent to take the drugs by use of force or fear, which is an element of robbery. Although the court of appeal believed that the videotape was cumulative and unnecessary and whether the guns were operational was a minor, collateral issue, no reversal was merited. (Lodgment 1(c) at 18-19.) The Court agrees. As the court of appeal noted, there was no dispute as to whether Petitioner and the others were armed and that the weapons had not been brandished or fired. The issue in the case was whether Petitioner entered into conspiracies with Mota and Sanchez and had participated in an attempted robbery. There was sufficient evidence in the record to support those convictions. If the videotape had not been shown, the jury's verdict would not have been any different. Accordingly, the Court concludes that Petitioner has not shown that the evidentiary ruling was fundamentally unfair to violate due process. As a result, the Court denies Petitioner's request for relief as to this claim.

  E. Trial Court's Failure to Properly Instruct the Jury on an Element of Conspiracy

  Petitioner argues that the trial court failed to properly instruct the jury on an element for a conspiracy conviction because the court omitted the requirement of a specific intent to commit the offense. The court of appeal held that although the trial court did not instruct the jury as to the one element of the conspiracy, "specific intent to agreement to commit the crime of robbery" it was inconceivable that the jury could have been misled that Petitioner was not required to have a specific intent to commit the crime based on the instructions that were given. (Lodgment 1(c) at 21-26.) Therefore, the court of appeal held that reversal was not merited. (Id.)

  In Cupp v. Naughten, 414 U.S. 141 (1973), the United States Supreme Court presented the standard for jury instruction error in habeas cases. The only question for a federal habeas court is whether, "under the circumstances as a whole and given the evidence in the case, the failure to give the requested instruction rendered the trial so fundamentally unfair as to violate federal due process." Duckett v. Godinez, 67 F.3d 734, 746 (1995) (citing Cupp, 414 U.S. at 147). A single jury instruction "may not be judged in artificial isolation, but must be viewed in the context of the overall charge." Cupp, 414 U.S. at 146-47. "An omission . . . is less likely to be prejudicial than a misstatement of the law" and the petitioner bears an "especially heavy" burden. Henderson v. Kibbe, 431 U.S. 145, 155 (1977).

  An erroneous jury instruction that omits an element of an offense is subject to a harmless error analysis. Neder v. United States, 527 U.S. 1, 9-11 (1999); Evanchyk v. Stewart, 340 F.3d 933, 940 (2003). Under Brecht, "the standard for determining whether habeas relief must be granted is whether the . . . error `had substantial and injurious effect or influence in determining the jury's verdict.'" Brecht v. Abrahamson, 507 U.S. 619, 623, 637(1993). Neither party has the burden of proving or disproving that the error had the requisite influence on the jury's verdict. See O'Neal v. McAninch, 513 U.S. 432, 436 (1995); Thompson v. Borg, 74 F.3d 1571, 1575 (1996). Instead, the reviewing judge examines the record and asks, "Do I, the judge, think that the error substantially influenced the jury's decision?" O'Neal, 513 U.S. at 436; Thompson, 74 F.3d at 1575. If the judge has "grave doubt" about whether the error had a substantial and injurious effect on the verdict, the error is not harmless. O'Neal, 513 U.S. at 436; Thompson, 74 F.3d at 1575.

  The Court concludes that the trial court's error did not substantially influence the jury's decision. Although the jury was not instructed on the requirement of "with the further specific intent to commit that crime," the jury was instructed that "[t]he alleged conspiracy in Count One is an agreement entered into between two of more persons with the specific intent to agree to commit the crime of Robbery. . . ." The jury was instructed that it needed to find that Petitioner entered into an agreement with the specific intent to commit the crime which would infer that Petitioner must have had the specific intent to commit that crime. The court concludes that the modification did not have a "substantial and injurious effect" on the jury's verdict. Accordingly, the state court's decision was not "contrary to, or involved an unreasonable application of, clearly established Federal law." See 28 U.S.C.A. § 2254(d)(1).

  F. Procedural Default

  1. Review of Magistrate Judge's Report and Recommendation

  The district court "shall make a de novo determination of those portions of the report . . . to which objection is made," and "may accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate." 28 U.S.C. § 636(b)(1). The Court also reviews de novo the magistrate judge's conclusions of law. Barilla v. Ervin, 886 F.2d 1514, 1518 (9th Cir. 1989) (citing Britt v. Simi Valley Unified School Dist., 708 F.2d 452, 454 (9th Cir. 1983)).

  2. Procedural Default

  Respondent moves to dismiss the petition arguing that the claims have been procedurally defaulted and barred from federal review because Petitioner failed to file a timely petition for direct review of his claims in the California Supreme Court.

  "The procedural default doctrine `bar[s] federal habeas when a state court declines to address a prisoner's federal claims because the prisoner has failed to meet a state procedural requirement.'" Calderon v. United States District Court (Bean), 96 F.3d 1126, 1129 (9th Cir. 1996) (quoting Coleman v. Thompson, 501 U.S. 722, 729 (1991)). The doctrine "`is a specific application of the general adequate and independent state grounds doctrine.'" Id. (quoting Wells v. Maass, 28 F.3d 1005, 1008 (9th Cir. 1994)). Under the adequate and independent 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.'" Id. (quoting Coleman, 501 U.S. at 729); see also LaCrosse v. Kernan, 244 F.3d 702, 704 (9th Cir. 2001); Park v. California, 202 F.3d 1146, 1151 (9th Cir. 2000).

  Procedural default applies when "`a state court has been presented with the federal claim,' but declines to reach the issue for procedural reasons, or `if it is clear that the state court would hold the claim procedurally barred.'" Franklin v. Johnson, 290 F.3d 1223, 1230 (9th Cir. 2002). When a claim is procedurally barred, a petition is dismissed in district court because the "petitioner has no further recourse in state court." Id. at 1231.

  "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). Petitioner can overcome application of the procedural default doctrine altogether by demonstrating either cause for the default and actual prejudice resulting from the alleged violation of federal law or a fundamental miscarriage of justice. Harris v. Reed, 489 U.S. 255, 262 (1989).

  The California Supreme Court summarily denied Petitioner's petition for writ of habeas corpus with a citation to In re Waltreus, 62 Cal. 2d 218 (1965) (Lodgment 2(b).) Respondent contends that this Waltreus citation indicates a procedural default that bars this Court from hearing Petitioner's claims due to Petitioner's failure to file a timely petition for direct review by the California Supreme Court. Respondent further claims that the Ninth Circuit has already found this procedural bar to be "an adequate and independent state procedural ground barring federal review. . . ." Forrest v. Vasquez, 75 F.3d 562, 564 (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, 5 Cal. 4th 813, 829 (1993) (emphasis in original); In re Waltreus, 62 Cal. 2d at 225. The United States Supreme Court has held that a Waltreus citation is neither a ruling on the merits nor a denial on procedural ground and thus, does not bar federal review of the claims. Ylst v. Nunnemaker, 501 U.S. 797, 805 (1991).

  However, in Forrest v. Vasquez, the Ninth Circuit held, under the facts of the case, the citation to Waltreus was a procedural default. Forrest v. Vasquez, 75 F.3d 562, 563 (9th Cir. 1996). In Forrest, Petitioner appealed his conviction to the court of appeal. The court of appeal affirmed his conviction. Petitioner filed a petition for review in the California Supreme Court but the court denied his application because he did not timely file a petition for review pursuant to California Rules of Court 28(b). Petitioner then filed a petition for writ of habeas corpus in the California Supreme Court alleging the same claim. The California Supreme Court denied the petition citing In re Waltreus.

  The Ninth Circuit explained that Petitioner raised his claim before the California Court of Appeal but did not timely file a petition for review before the California Supreme Court. Id. at 563-64. This cost Petitioner his only chance to present his claim to the California Supreme Court because Waltreus prohibits that court from reviewing on habeas any claim raised during the direct appeal process. Id. at 564. In order to exhaust remedies in state court, under Waltreus, a prisoner should generally file his claims before the California Supreme Court in a petition for direct review, instead of a habeas petition. Id. The court held that the procedural default arose from petitioner's failure to follow California Rules of Court 28(b).*fn5 Id. at 563.

  Similarly, Petitioner presented his claims to the Court of Appeal on direct review but did not present these same claims to the California Supreme Court until significantly after the filing period had passed under California Rules of Court 28. (See Pet'r Opp'n, Ex. D.) The California Supreme Court rejected Petitioner's petition for review because it was untimely pursuant to California Rules of Court 28(a) & (b).*fn6 (See id.) Accordingly, when the court cited Waltreus in this case, it held that by failing to file a timely petition for direct review, Petitioner had "deprived the highest state court of an opportunity to address his claim[s] in the first instance," thereby barring them as procedurally defaulted. See Forrest, 75 F.3d at 564.

  The Rule 28(b) violation not only cost Petitioner the opportunity to present his claims to the California Supreme Court on direct review, it also precluded subsequent collateral review of those claims. "Waltreus prohibits [the California Supreme Court] from reviewing on habeas any claim raised during the appeal process." Forrest, 75 F.3d at 564. Since Petitioner had raised his claims before the Court of Appeal on direct review, Waltreus prohibited him from subsequently raising them on habeas review. Id. Waltreus and Rule 28(e) operate together as a procedural default to prevent Petitioner from using habeas relief as a substitute for a direct review. See In re Harris, 5 Cal. 4th at 827 (stating that "a litigant could not forgo a direct appeal in favor of seeking relief on habeas corpus").

  In Ylst, the United States Supreme Court looked through a Waltreus citation to the last explained state judgment. Ylst, 501 U.S. at 802. The Ninth Circuit has held that this Court need not employ the "look through" doctrine when the California Supreme Court invokes Waltreus following an untimely appeal from a decision in the Court of Appeal. Forrest, 75 F.3d at 564 ("[W]e will not look past the California Supreme Court's unexplained order denying Forrest's application for relief from default. The `nature' and `surrounding circumstances' of the unexplained order clearly show that the basis of the decision was procedural default.") The Supreme Court specifically suggested this exception in Ylst, where it stated that, though it presumed that a citation to Waltreus was intended to affirm the last reasoned appellate decision, the presumption was rebuttable when the Waltreus denial followed an appeal "plainly out of time." Ylst, 501 U.S. at 804. Here, since Petitioner clearly submitted an untimely petition for direct review, the exception applies and the Court should not look through to the Court of Appeal's decision. Consequently, the Court concludes that the California Supreme Court's citation to Waltreus is a procedural bar that precludes federal habeas review under the circumstances of this case.

  3. Overcoming Procedural Default

  Since Respondent has adequately plead the existence of a procedural default, the burden shifts to Petitioner to demonstrate that the procedural default should not apply. Bennett, 322 F.3d at 586. Petitioner may do so by challenging the adequacy or independence of the procedural bar. Wells, 28 F.3d at 1008. Alternatively, Petitioner can overcome the procedural default altogether by demonstrating cause and prejudice or actual innocence. Id.

  a. Adequacy and Independence

  Petitioner may challenge either the adequacy or the independence of the Rule 28(e) bar to demonstrate that it should not prevent this Court from reaching the merits of his claims. See Coleman, 501 U.S. at 729. 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 argued that the Waltreus procedural bar is not consistently applied, nor supplies any facts or law to support such arguments. Consequently, Petitioner has failed to demonstrate the inadequacy of the Rule 28(e) procedural bar.

  Nor has Petitioner challenged the independence of the procedural bar. "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 Rule 28(e) bar is not independent of federal law, to state facts supporting such a finding, or to cite any authority stating that Rule 28(e) is interwoven with federal law. As a result, Petitioner has failed to show that the Rule 28(e) procedural bar is not independent.

  Because Petitioner has failed to demonstrate that the Rule 28(e) bar is either inadequate or not independent, he has not carried his burden of demonstrating why his federal claims are not procedurally barred by Rule 28(e). Accordingly, the Court finds that the Rule 28(e) bar is adequate and independent and that all of Petitioner's claims are procedurally defaulted.

  b. Cause and Prejudice or Actual Innocence

  Since Petitioner's claims are procedurally defaulted, the Court may only reach the merits of Petitioner's claims if Petitioner can demonstrate either cause and prejudice or actual innocence. Wells, 28 F.3d at 1009.

  i. Cause and Prejudice

  Petitioner argues that the Court should excuse his default because he sent a timely petition for direct review in November 2001, which the California Supreme Court never received. (Pet'r Opp'n at 2.) The Court may excuse Petitioner's default if Petitioner can demonstrate a cause for his alleged November 2001 petition not reaching the California Supreme Court. "`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 original). Here Petitioner implies that the mail system is the external cause for the default. However, narrowly attributing the cause to the mail system overlooks the fact that Petitioner failed to avail himself of numerous subsequent opportunities to avoid the procedural default.*fn7 Regardless, Petitioner does not state any facts to support this implied argument, nor does the Court find any in the record. Because Petitioner has not established sufficient cause, the Court need not address prejudice and cannot excuse the default on this basis. See Engle v. Isaac, 456 U.S. 107, 134 fn 443 (1982).

  ii. Actual Innocence

  Finally, the Court may still reach the merits of Petitioner's habeas claims if Petitioner can demonstrate that failure to do so would constitute a fundamental miscarriage of justice. To demonstrate a potential fundamental miscarriage of justice, Petitioner must provide new evidence of his actual innocence, and the evidence must be such that "no reasonable juror would have convicted him in light of [it]." Wood v. Hall, 130 F.3d 373, 379 (1997) (quoting Schlup v. Delo, 513 U.S. 298, 327 (1995)). Petitioner has presented no such evidence here, nor has he argued that he is actually innocent of the crimes for which he was convicted. Because Petitioner has not adequately demonstrated a fundamental miscarriage of justice, this exception does not apply to Petitioner's procedural default.

  In sum, the Court finds that all of Petitioner's claims are procedurally defaulted under California Rules of Court 28(e). Rule 28(e), as affirmed by Waltreus, is an adequate and independent state court grounds for the California Supreme Court's denial of Petitioner's claims, and that Petitioner has not demonstrated either cause and prejudice or actual innocence. Accordingly, the Court ADOPTS the report and recommendation granting Respondent's motion to dismiss.

  Conclusion

  Based on the above, the Court DENIES the petition for writ of habeas corpus and ADOPTS the Report and Recommendation granting Respondent's motion to dismiss. The Clerk of Court shall close the case.

  IT IS SO ORDERED.

20051110

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