The opinion of the court was delivered by: Honorable Barry Ted Moskowitz United States District Judge
ORDER DENYING RESPONDENT'S MOTION TO DISMISS GROUP THREE CLAIMS [Doc. No. 183] ON THE BASIS OF STATE PROCEDURAL BARS AND PURSUANT TO TEAGUE V. LANE
Respondent has filed a motion to dismiss the majority of the Group Three Claims on the basis of state procedural bars and pursuant to Teague v. Lane. For the reasons discussed below, Respondent's motion is DENIED.
On April 17, 1997, Petitioner filed his automatic appeal with the California Supreme Court, and filed a Reply brief on April 27, 1998. On July 23, 1998, Petitioner filed a habeas petition with the California Supreme Court. On June 8, 2000, the California Supreme Court denied the appeal. See People v. Ayala, 23 Cal. 4th 225 (2000). On June 8, 2000, the California Supreme Court also summarily denied the habeas petition without comment. Subsequently, Petitioner filed a Petition for Writ of Certiorari in the United States Supreme Court, which was denied on March 5, 2001.
On May 3, 2002, Petitioner filed his Petition for Writ of Habeas Corpus with this Court. Shortly thereafter, the Court dismissed without prejudice certain claims presented in the Petition in order to permit Petitioner to exhaust those claims in state court. The Court stayed the federal proceedings pending the exhaustion of state court remedies.
On September 23, 2002, Petitioner filed a First Amended Petition for Writ of Habeas Corpus in the California Supreme Court. On September 10, 2003, the California Supreme Court denied the petition.
On November 14, 2003, Petitioner filed his First Amended Petition for Writ of Habeas Corpus in this case. He subsequently filed a Second Amended Petition for Writ of Habeas Corpus, the operative pleading in this action.
Respondent moves for dismissal of claims 17-24, 27-36, and 68 as procedurally defaulted, on the basis that the California Supreme Court found each of these claims to be untimely, successive, and/or repetitive of a claim previously raised on appeal. Petitioner requested that he be permitted to withdraw Claims 28 and 29 from the Second Amended Petition, and on June 8, 2006, the Court entered an order granting that request. The Court will not consider Respondent's previously filed motions regarding claims 28 and 29.
In the Answer to the Second Amended Petition, Respondent also contends these claims are barred under Teague v. Lane and moves for dismissal of the claims on that grounds.
A federal court may be barred from reviewing the merits of a petitioner's claim when the petitioner has defaulted with respect to particular state law procedural requirements. Coleman v. Thompson, 501 U.S. 722, 729 (1991). A federal habeas petitioner will have procedurally defaulted his claim in federal court if the state procedural rule is independent of the federal question (i.e., not interwoven with federal law) and adequate to support the judgment (i.e., regularly followed and consistently applied). Id.; Harris v. Reed, 489 U.S. 255, 254 n.10 (1989).
If a state procedural ground is an adequate and independent ground for dismissal, habeas corpus relief is unavailable in federal court unless a petitioner can show cause for the default and resulting prejudice, or show that a failure to consider the claims would result in a fundamental miscarriage of justice. See 28 U.S.C. § 2254(b).
In the instant case, Petitioner filed his automatic appeal on April 17, 1997 and his first state habeas petition on July 23, 1998. Petitioner then raised the contested claims in a second state (exhaustion) petition, filed on September 23, 2002. The September 2003 California Supreme Court order concludes that claims 17-24, 27-36 and 68 are "procedurally barred, separately and independently, as untimely. In re Robbins, 18 Cal.4th at 780-781 (1998); In re Clark, 5 Cal.4th 750, 763-799 (1993)." The state court also found these same claims to be "procedurally barred, separately and independently, as successive. In re Clark, 5 Cal.4th at 767-768; In re Horowitz, 33 Cal.2d 534, 546-547 (1949)." The state court found claims 18, 19, and 22 "procedurally barred, separately and independently, as repetitive of a claim raised on appeal. In re Harris, 5 Cal.4th at 824-849; In re Waltreus, 62 Cal.2d 218, 225 (1965)." The California Supreme Court also denied all of these claims on the merits.
A. Repetitive (In re Waltreus)
Waltreus 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 habeas corpus." In re Harris, 5 Cal.4th 813, 829 (1993); see In re Waltreus, 62 Cal.2d 218 (1965). In Waltreus, the California Supreme Court stated "habeas corpus ordinarily cannot serve as a second appeal." Waltreus, 62 Cal.2d at 225.
The Ninth Circuit has repeatedly held this rule "is not sufficient to bar federal relief." Calderon v. United States District Court (Bean), 96 F.3d 1126, 1131 (9th Cir. 1996); Maxwell v. Sumner, 673 F.2d 1031, 1034-35 (9th Cir. 1982); LaCrosse v. Kernan, 244 F.3d, 702, 705 n.11 (9th Cir. 2001). In Forrest, the Ninth Circuit again stated "a Waltreus denial on state habeas has no bearing on [a habeas petitioner's] ability to raise a claim in federal court." Forrest v. Vasquez, 75 F.3d 562, 564 (9th Cir. 1996). In a more recent case, the Ninth Circuit reinforced this finding, stating "[t]he California Supreme Court's reliance on In re Waltreus does not bar federal review." Hill v. Roe, 321 F.3d 787, 798 (9th Cir. 2003).
The Waltreus rule is not sufficient to bar federal review of Petitioner's claims.
B. Untimely and Successive (In re Robbins and In re Clark)
As stated above, a federal court generally "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 ...