The opinion of the court was delivered by: Honorable Larry Alan Burns United States District Judge
ORDER ADOPTING REPORT AND RECOMMENDATION RESULT AND AUGMENTING ANALYSIS TO DENY FIRST AMENDED HABEAS CORPUS PETITION
Petitioner Tommy Ray Brown ("Brown") seeks habeas corpus relief pursuant 28 U.S.C. § 2254 from his December 1990 state criminal conviction. Magistrate Judge William McCurine, Jr. prepared a Report and Recommendation ("R&R") (Dkt No. 95) recommending the court deny Brown's First Amended Petition, filed April 13, 2004 (Dkt No. 59). Brown filed extensive Objections to the R&R. Dkt No. 100. Respondent filed a brief Reply. Dkt No. 99. For the reasons discussed below, the R&R is ADOPTED, with MODIFIED AND AUGMENTED analysis, and the First Amended Petition is DENIED.*fn1
The R&R traces the factual background and procedural history surrounding Brown's conviction in December 4, 1990 of murder, attempted murder, robbery, vehicle taking, and shooting at an inhabited building, and his post-conviction proceedings in state court.*fn2 Dkt No. 95, pp. 2-3. Brown's direct appeal was denied, as well as his six state habeas petitions.*fn3 He is serving a sentence of 30 years to life, plus 16 years. See Dkt No. 65, 2:10.
Brown first filed his federal habeas petition in January 1998. The petition is accordingly governed by the Anti-Terrorism And Effective Death Penalty Act of 1996 ("AEDPA"). Respondent answered the petition, and Brown filed a Traverse. Dkt No. 9, 10, 15. Brown unsuccessfully moved for leave to conduct discovery and for expansion of the record. Both sides provided supplemental briefing and declarations. Dkt Nos. 16, 27. On December 22, 1998, District Judge Napoleon A. Jones adopted Magistrate Judge Ruben B. Brooks' R&R to deny Brown's habeas petition on grounds the federal petition was untimely filed. Dkt No. 32. Judgment was entered for Respondent. Dkt No. 33. Brown unsuccessfully moved for reconsideration, then appealed. Dkt Nos. 35-39.
The Ninth Circuit reversed and remanded on grounds denial of access to personal legal materials can entitle a petitioner to equitable tolling in proper circumstances, contrary to Judge Jones' conclusion.*fn4 Dkt No. 44. That court found the district court did not conduct sufficient fact finding to establish how complete Brown's denial of access was or how long it lasted, and remanded for development of the record. That court also found a calculation error caused the tolled period the district court had recognized to be 30 days too short.
This case was reassigned to the undersigned District Judge on October 20, 2003 and to Magistrate Judge McCurine on January 21, 2004. Dkt Nos. 46, 50. On February 13, 2004, Judge McCurine entered an Order reopening the case and setting a briefing schedule for Respondent to file a Motion To Dismiss or an Answer to the petition. Dkt No. 51. He instructed, among other things, that if Respondent "contends the Petition should be dismissed because it was not filed within the one-year statute of limitations, Respondent shall address the concerns raised by the Ninth Circuit." Dkt No. 51, 2:15-17 (emphasis omitted). "If Respondent does not renew its motion to dismiss on the basis that the Petition was not filed within the one-year statute of limitations, Respondent shall clearly and expressly indicate that the statute of limitations defense is waived." Id. 3:9-11.
This court granted Brown leave to file a First Amended Petition ("Petition"'), and he did so on April 13, 2004. Dkt No. 58-59. The Petition alleges he was denied due process and a fair trial:
(1) from systematic prosecutorial misconduct (misstatements of law, eliciting inflammatory and irrelevant evidence, referring openly to facts outside the record, impugning defense counsel, expressing personal animus against petitioner, using voice and body to intimidate witnesses, and reference to gang affiliation to inflame the jury); (2) use of improper gang expert testimony; (3) admitting irrelevant and prejudicial gang evidence; (4) allowing prosecutor to prove petitioner previously served prison time; (5) denial of his request to substitute trial counsel and denial of his request for a continuance so he could prepare for self-representation; (6) denial of right to substitute trial counsel; (7) ineffective assistance of trial counsel (for various evidentiary, tactical, and investigatory failings); and (8) an erroneous jury instruction. Judge McCurine issued a new scheduling Order in consideration of the amended Petition. Dkt No. 62. That Order reiterated Respondent's options as well as the admonition Respondent address the Ninth Circuit's opinion or expressly waive the statute of limitations defense.
Brown moved on April 26, 2004 for an evidentiary hearing on the merits of his Petition and for appointment of counsel. Dkt No. 65. Judge McCurine denied the motion without prejudice. Dkt No. 67. He found the ineffective assistance of counsel ("IAC") claim did not require an evidentiary hearing because the argument his counsel "failed to investigate witnesses, conduct background checks on . . .witnesses, and failure to have [an] investigator testify," even if proved, would not sustain his IAC claim. Id. 2:7-11. He also found Brown's argument a copy of the AEDPA was not available in the prison law library in September 1998 to be both premature and speculative unless and until Respondent filed a motion to dismiss on statute of limitations grounds. Id. 2:23-26.
Respondent filed an Answer to the Petition on June 23, 2004, purporting to incorporate a renewed motion to dismiss: "Respondent reasserts the motion to dismiss the petition because it is barred by the statute of limitations." Dkt No. 71, 10:21-22, 2:26 ("Petition is barred by the one year statutory limitations period of AEDPA"). Brown's Traverse addresses the statute of limitations issue:
Petitioner denies IV. of the answer at p. 2, the petition is not barred by the one-year statute (A.E.D.P.A.) filing period. Furthermore, the respondent failed to comply with this court order of 4-20-04 at p. (1), respondent did not file a motion to dismiss on this issue thereby rendering this issue moot.
Traverse, Dkt No. 74 2:1-5.
No activity appears in the docket between the July 23, 2004 Traverse and March 16, 2005, when Judge McCurine set a May 18, 2005 evidentiary hearing "limited to those issues raised by the Ninth Circuit Court of Appeals" and appointing counsel for Brown for that hearing only, revisiting Brown's April 26, 2004 requests. Dkt No. 76, 2:1-9. The hearing was continued several times, with intervening telephonic status conferences. The court permitted Brown to file a motion to discover when the prison library received the AEDPA materials, and limited discovery was authorized. Dkt Nos. 84, 88. On August 18, 2005, Judge McCurine authorized the filing of an Amended Answer and Traverse, denying Brown's discovery motion as "now moot." Dkt No. 90. Respondent filed a First Amended Answer to the First Amended Petition on August 30, 2005, but asserted no statute of limitations defense.*fn5 Dkt Nos. 91, 92. The court finds the statute of limitations defense has been abandoned, albeit not in the manner prescribed in the April 2004 scheduling Order.*fn6 Dkt No. 62, ¶ 6.
Brown moved on January 12, 2006 (filed the same day as the R&R) for an evidentiary hearing on the underlying merits of his IAC claims, proceeding pro se. Dkt No. 96. Judge McCurine denied that motion without prejudice, applying Rule 6(a) of the Rules Governing § 2254 cases, on grounds: the court was not persuaded the discovery Brown sought would substantiate his claim of IAC; most of the discovery he sought had been produced at trial; and his habeas petition could be fairly decided on the merits without that discovery.*fn7 Dkt No. 98. This court concurs with that assessment.
The R&R recommends the Petition be denied on all grounds Brown raises. Dkt No. 95. Respondent filed Objections to the R&R solely to request correction of the R&R caption*fn8 and to summarily reassert the contention most of Brown's claims are procedurally defaulted, "as set forth in the Answer." Dkt No. 99. Brown filed extensive objections to the R&R, rearguing the merits of his Petition and stating the R&R was "unreasonable" in its determinations, or the magistrate judge "was mistaken" or "in error" in recommending rejection of each ground addressed in the R&R. Dkt No. 100, e.g. 2:10, 12:2. 8:12, 12:21, 14:19. In addition, Brown objects Judge McCurine failed to address his alleged Sixth Amendment Confrontation Clause violation.
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. ("Rule") 72(b); see 28 U.S.C. § 636(b)(1). The district judge may also "receive further evidence, or recommit the matter to the magistrate judge with instructions." Id. The district court "shall make a de novo determination of those portions of [a magistrate judge's R&R] to which objection is made." 28 U.S.C. § 636(b)(1); Rule 72(b); see United States v. Raddatz, 447 U.S. 667, 676 (1980) (when objections are made, the court must make a de novo determination of the factual findings to which there are objections); Gates v. Gomez, 60 F.3d 525, 530 (9th Cir. 1995) (the court reviews de novo the magistrate judge's conclusions of law).
2. Application Of AEDPA Standards
Title 28 United States Code § 2254(a) ("Section 2254") habeas proceedings measure state convictions against federal constitutional requirements applicable to the states:
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.
Federal courts review state prisoners' petitions filed after April 24, 1996 under AEDPA. AEDPA imposed more stringent standards than previously governed federal habeas review. Lindh v. Murphy, 521 U.S. 320, 327 (1997). A writ petition will not now be granted unless the state court decision is "contrary to or involved an unreasonable application of" federal law. In applying 28 U.S.C. § 2254 (a), (d)(1)-(2) of AEDPA, for purposes of determining what constitutes "clearly established federal law," the courts rely on United States Supreme Court holdings (as opposed to dicta) as they existed at the time the state court rendered the relevant decision. Williams v. Taylor, 529 U.S. 362, 412, 405, 413 (2000); see also Baylor v. Estelle, 94 F.3d 1321, 1325 (9th Cir. 1996); Lockyer v. Andrade, 538 U.S. 63, 71-72 (2003); Furman v. Wood, 190 F.3d 1002, 1004 (9th Cir. 1999) (the petitioner must identify United States Supreme Court decisions that address his claims). Ninth Circuit authority may be considered "for its persuasive authority in applying Supreme Court law." Van Tran v. Lindsey, 212 F.3d 1143, 1150 (9th Cir. 2000), overruled on other grounds, Andrade, 538 U.S. at 71 (federal courts are not required to review state court decisions de novo before applying AEDPA standards, overruling the two-step consideration of habeas petitions required by Van Tran).
(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 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. § 2254(d) (emphasis added); see Williams, 529 U.S. at 411 (under the "unreasonable application" clause, the test is objective unreasonableness, not whether the determination was "erroneous" or "incorrect"); see also Andrade, 538 U.S. at 75-76.
Errors of state law cannot support federal habeas corpus relief, and federal courts may not re-examine state court determinations on state law issues. Estelle v. McGuire, 502 U.S. 62, 68 (1991) (a state's interpretation of its laws or rules provides no basis for federal habeas corpus relief because no federal constitutional question arises). Only errors of federal constitutional magnitude will support federal intervention in state judicial proceedings to correct such errors. Jackson v. Ylst, 921 F.2d 882, 885 (9th Cir. 1990). A federal reviewing court presumes that determinations of factual issues made by a state court are correct, with the burden on the petitioner to rebut the presumption of correctness by clear and convincing evidence. 28 U.S.C. § 2254(e)(2). In limited circumstances, an evidentiary hearing may be held in federal court to develop the factual basis of a claim, but only when:
(A) the claim relies on --(i) a new rule of constitutional law, made retroactive to cases on collateral review by the Supreme Court, that was previously unavailable; or (ii) a factual predicate that could not have been previously discovered through the exercise of due diligence; and
(B) the facts underlying the claim would be sufficient to establish by clear and convincing evidence that but for the constitutional error, no reasonable fact-finder would have found the applicant guilty of the underlying offense.
28 U.S.C. § 2254(e)(2) (emphasis added).
In this case, the R&R applied "the less deferential pre-AEDPA standard of review" to seven of Brown's eight claims, excepting only the Sixth Claim (alleging fair trial violations when the trial court denied his request to substitute trial counsel):
Before turning to the merits of Petitioner's claims, the proper standard of review must be addressed. Because claims one through six, and number eight have been exhausted on the basis of state procedural grounds, the substance of these federal habeas claims have [sic] not been considered by the state supreme court. Although some of these claims had been reviewed on the merits by state courts during appellate proceedings, the state courts have not reviewed the merits of these claims during any of the state habeas proceedings which have served to exhaust such claims. Accordingly, this Court must apply the less deferential pre-AEDPA standard of review, which provides for deference to the factual findings of a state court, but requires a de novo review of both legal questions and mixed questions of law and fact. See Swan v. Peterson, 6 F.3d 1373, 1379 (9th Cir. 1993). Petitioner's sixth claim will be reviewed under AEDPA, as that claim was raised in Petitioner's first habeas petition filed in 1992 and rejected by the state in a reasoned opinion.[*fn9]
R&R, Dkt. No. 95, 11:27-12:10 (emphasis added).
However, AEDPA applies to all federal habeas petitions pending on or filed after its effective date in April 1996. Lindh, 521 U.S. at 327; see Woodford v. Garceau, 538 U.S. 202, 207 (2003) (AEDPA does not apply if the state prisoner had (1) an application for habeas relief, (2) before a federal court, (3) seeking an adjudication on the merits, (4) before April 24, 1996). Brown first filed his federal petition on January 7, 1998. The entire Petition is accordingly subject to AEDPA standards. The R&R acknowledges, "some of these claims had been reviewed on the merits by state courts during appellate proceedings." R&R 12:2-3. AEDPA recites it applies to "any claim that was adjudicated on the merits in State court proceedings" (28 U.S.C. § 2254(d) (emphasis added)), not only to claims addressed in state habeas proceedings and not only if the state supreme court itself reached the merits.*fn10 See R&R 12:2-5. This court accordingly applies AEDPA standards to all portions of the Petition any reviewing state court adjudicated on the merits in any of Brown's post-conviction proceedings.
"Trial errors" of even constitutional magnitude can be deemed harmless, whereas "structural errors" require reversal of the conviction because they infect the entire trial process, and thus they cannot be deemed harmless. Arizona v. Fulminante, 499 U.S. 279, 306-10 (1991). Most constitutional errors are of the trial type, and most "can be harmless." Id. at 306. These "occur during the presentation of the case to the jury" and are amenable to harmless-error analysis because the error "may . . . be quantitatively assessed in the context of other evidence presented in order to determine [the effect it had on the trial]." Brecht v. Abrahamson, 507 U.S. 619, 629 (1993), quoting Fulminante, 499 U.S. at 307-08. For example, the Supreme Court classifies even the admission of an involuntary confession as trial-type error. Id. at 306-11. Trial errors are analyzed under the Brecht standard. The Supreme Court has identified only a handful of structural errors. Deprivation of the right to counsel or a biased judge are examples of structural error. Fulminante, 499 U.S. at 306-10. Brown's Petition alleges only trial errors.
"A petitioner has satisfied the exhaustion requirement if: (1) he has 'fairly presented' his federal claim to the highest state court with jurisdiction to consider it, . . . or (2) he demonstrates that no state remedy remains available." Johnson v. Zenon, 88 F.3d 828, 829 (9th Cir. 1996) (citations omitted). Respondent argued Brown failed to exhaust his federal claims because he did not present the federal basis of most of them to the state supreme court before bringing his federal Petition. A'd Ans. P&A pp. 7-8. The R&R demonstrates his claims are exhausted, notwithstanding Respondent's argument. No remedies remained available to Brown at the time he filed his amended Petition. See Gray v. Netherland, 518 U.S. 152, 161 (1996) (the exhaustion requirement may be satisfied "if it is clear that [petitioner's] claims are now procedurally barred under [state] law"); Valerio v. Crawford, 306 F.3d 742, 770 (9th Cir. 2002) (claim may be considered exhausted if it is obviously procedurally barred), citing Phillips v. Woodford, 267 F.3d 966, 974 (9th Cir. 2001) ("the district court correctly concluded that [petitioner's] claims were nonetheless exhausted because 'a return to state court would be futile"). This court ADOPTS the recommendation Brown's claims be deemed exhausted as evidenced, inter alia, by the California Supreme Court's 2001 denial of his untimely and successive sixth habeas petition.
When an adequate and independent ground for a state court's rejection of a federal claim involves a violation of certain state procedural requirements, a habeas petitioner is said to have procedurally defaulted his claim, and the federal courts cannot reach the merits of the federal claim. Coleman v. Thompson, 501 U.S. 722, 729 (1991) (federal courts lack jurisdiction to review a judgment of a state court which rests on a state law ground that is independent of the federal question and adequate to support the judgment). However, "a procedural default does not bar consideration of a federal claim on either direct or habeas review unless the last state court rendering a judgment in the case 'clearly and expressly' states that its judgment rests on a state procedural bar." Harris v. Reed, 489 U.S. 255, 263 (1989) (citations omitted).
To be an "independent" state procedural rule , the state law basis for the decision must not be interwoven with federal law. Michigan v. Long, 463 U.S. 1032, 1040-41 (1983); Harris, 489 U.S. at 265. To be "adequate," the state procedural rule must be strictly or regularly followed and consistently applied. See Morales v. Calderon, 85 F.3d 1387, 1392 (9th Cir. 1996). Unless the state court's decision clearly rests on an independent and adequate state ground, it is presumed that the state denial was based at least in part upon federal grounds invoked, and the petitioner may seek relief in federal court. Siripongs v. Calderon, 35 F.3d 1308, 1317 (9th Cir. 1994). The state court's mere citation to a case without elaboration does not necessarily satisfy the "clear and express statement" component of a procedural default finding. "[I]f it is unclear whether the state court dismissed the petition because of a state law procedural default or on the merits of the petitioner's federal constitutional claims, a federal court may review the merits of the claims presented." Loveland v. Hatcher, 231 F.3d 640, 643 (9th Cir. 2000), citing Siripongs, 35 F.3d at 1317. The ultimate burden of proof as to adequacy lies with the respondent because the state is in a better position to determine whether a particular rule is consistently applied. Bennett v. Mueller, 322 F.3d 573 (9th Cir. 2003) (holding that California's untimeliness bar is independent but remanding to determine whether it is adequate).
The R&R recommends the court find Brown's claims are not procedurally defaulted, rejecting Respondent's representations in the Answer, although the analysis is not expanded. R&R, Dkt No. 95, pp. 10-11. Respondent's Objections to the R&R summarily state: "Respondent continues to contend that most of the claims are procedurally defaulted, as set forth in the Answer." Resp.'s Obj. 2:4-5. Respondent broadly generalizes:
Despite the passage of more than ten years, Petitioner has not given the courts a chance to rule on his federal Constitutional claims. The time has passed, and this Petition ...