The opinion of the court was delivered by: Honorable Barry Ted Moskowitz United States District Judge
ORDER DENYING RESPONDENT'S MOTION TO DISMISS GROUP FIVE CLAIMS; GRANTING IN PART AND DENYING IN PART RESPONDENT'S MOTION FOR SUMMARY JUDGMENT; DENYING PETITIONER'S MOTION FOR SUMMARY JUDGMENT; ANDGRANTING IN PART AND DENYING IN PART PETITIONER'S MOTION FOR AN EVIDENTIARY HEARING
Respondent has filed a motion for summary judgment on the Group Five Claims (Claims 1-9, 12-16, and 69 of the Second Amended Petition). Respondent has also filed a motion to dismiss Claims 1, 3-9, 12-16, and 69 on the basis of state procedural bars. Petitioner has filed a motion seeking summary judgment, or, in the alternative, for evidentiary hearings on each of his Group Five claims. Given the very extensive briefing and the nature of the claims, the Court finds these motions fully suitable for decision on the papers without oral argument. For the reasons discussed below, Respondent's motion for summary judgment is GRANTED in part and DENIED in part,Respondent's motion to dismiss is DENIED, Petitioner's motion for summary judgment is DENIED, and Petitioner's motion for an evidentiary hearing is GRANTED in part and DENIED in part.
On October 12, 1988, Petitioner was convicted of three counts of first-degree murder in violation of California Penal Code ("CPC") § 187, one count of attempted murder in violation of CPC §§ 664 and 187, and one count of robbery and three counts of attempted robbery in violation of CPC §§ 664 and 211--each count with findings that he used a firearm in the commission of the crimes in violation of CPC § 12022.5. Petitioner was also found guilty of the two special circumstance allegations, multiple murder under CPC § 190.2(a)(3) and murder in the commission of a robbery under CPC § 190.2(a)(17)(1). On December 12, 1988, Petitioner was sentenced to death for each of the three murders.
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 a Writ of Certiorari in the United States Supreme Court, which was denied on March 5, 2001.
On May 3, 2002, Petitioner filed a Petition for a Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254 in 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 a 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 a Writ of Habeas Corpus in this case. He subsequently filed a Second Amended Petition for a Writ of Habeas Corpus, the operative pleading in this action.
Respondent moves to dismiss Claims 1, 3-9, 12-16, and 69 on the basis they are procedurally defaulted. When a state court's rejection of a federal claim is based on a violation of a state procedural rule that is adequate to support the judgment and independent of federal law, a habeas petitioner has procedurally defaulted his claim. Coleman v. Thompson, 501 U.S. 722, 729-30 (1991).A state procedural rule is adequate if it has been "firmly established and regularly followed" by the state court. Ford v. Georgia, 498 U.S. 411, 424 (1991). The procedural rule is independent if it is not "interwoven with the federal law." Michigan v. Long, 463 U.S. 1032, 1040-41 (1983). If a state procedural ground is an adequate and independent ground for dismissal, a federal court will not consider the merits of the claims unless a petitioner can show sufficient 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 Coleman, 501 U.S. at 750.
In the instant case, Petitioner filed his automatic appeal on April 17, 1997, and filed 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 10, 2003 California Supreme Court order denying the second state petition concluded that Claims 1, 3-9, 12-16, and 69 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 court also found that Claims 1, 3-9, 12-16 and 69 are "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 California Supreme Court additionally found Claims 7 and 15 "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 court found Claims 1, 9 ("insofar as it asserts the prosecution violated the terms of a stipulation"), and 69 "procedurally barred, separately and independently, as pretermitted because they could have been, but were not, raised on appeal. In re Harris, 5 Cal. 4th 813, 824-829; In re Dixon (1953) 41 Cal. 2d 756, 759." Finally, the court found claim 6 ("insofar as it refers to the putative failure to disclose certain purportive information about Rafael Mendoza Lopez") to be procedurally barred because it was "raised and rejected in petitioner's first petition for writ of habeas corpus (In re Ronaldo Medrano Ayala on Habeas Corpus (S072059, petn. den. June 8, 2000). (In re Miller (1941) 17 Cal. 2d 734, 735.)" The California Supreme Court alternately denied all of the claims raised in the second exhaustion petition 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 at 829. 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 that the rule announced in Waltreus "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 v. Vasquez, 75 F.3d 562, 564 (9th Cir. 1996), the Ninth Circuit explained, "[A] Waltreus denial on state habeas has no bearing on [a habeas petitioner's] ability to raise a claim in federal court." The Ninth Circuit reiterated this conclusion in Hill v. Roe, 321 F.3d 787, 798 (9th Cir. 2003), stating, "[t]he California Supreme Court's reliance on In re Waltreus does not bar federal review."
In accordance with Ninth Circuit precedent, the Court holds that 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)
In their briefing on Respondent's Motion to Dismiss Group Three Claims based on procedural bars, the parties relied upon the motion papers previously submitted in support of the Group Two claims. In the Court's Order dated September 27, 2007, the Court conducted an analysis of the California Supreme Court's application of the untimeliness and successiveness procedural bars (In re Clark and In re Robbins) and found that California's untimeliness and successiveness procedural bars were inadequate to bar consideration of Petitioner's Group Three claims on the merits. In the Court's Order dated April 16, 2008, the Court noted that the parties, in briefing the Group Four claims, again relied upon the papers submitted in support of the Group Two claims. Therefore, the Court again concluded that the procedural bars imposed by the California Supreme Court on the grounds of untimeliness and successiveness did not bar this Court from considering the Group Four claims on the merits.
In the briefing filed in support of the motions on the Group Five claims, the parties again rely primarily on the papers previously submitted in support of the Group Two Motions.*fn1 Therefore, in accordance with the Group Three and Group Four Orders, this Court cannot conclude that the application of these procedural rules is sufficient to prohibit the consideration of the Group Five claims on the merits. The procedural bars imposed by the California Supreme Court in its September 10, 2003 order on the grounds of untimeliness and successiveness will not bar this Court from considering those claims on the merits for the reasons set forth in the Court's September 27, 2007 Order.
C. Pretermitted (In re Dixon)
As stated above, in their briefing on Respondent's Motion to Dismiss Group Four Claims based on procedural bars, the parties relied primarily upon the motion papers previously submitted in support of the Group Two claims. In the Court's Order dated April 16, 2008, the Court conducted an analysis of the California Supreme Court's application of the pretermitted procedural bar (In re Dixon). The Court found that the Dixon bar was independent of federal law, and found that Petitioner had met his interim burden under Bennett v. Mueller, 322 F.3d 573 (9th Cir. 2003), to challenge the adequacy of the procedural bar by challenging the consistency of its application, but concluded that Respondent had not met his ultimate burden under Bennett of proving the adequacy of the procedural rule. The Court held that the Dixon bar was not sufficient to prohibit the consideration of the Group Four claims on their merits.
In the briefing filed in support of the motions on the Group Five claims, the parties again rely primarily on the papers previously submitted in support of the Group Two Motions. Therefore, this Court cannot conclude that the application of the Dixon procedural rule is sufficient to prohibit the consideration of Claims 1, 9, and 69 on the merits. For the reasons set forth in the Court's April 16, 2008 Order, the Dixon procedural bars imposed by the California Supreme Court in its September 10, 2003 order will not bar this Court from considering those claims on the merits.
In Miller, the California Supreme Court denied a habeas petition because a prior petition filed in that court "was based on the same grounds set forth in the present petition" and "no change in the facts or the law substantially affecting the rights of the petitioner has been disclosed" in the interim. Id., 17 Cal. 2d at 735. In Kim v. Villalobos, the Ninth Circuit stated that, by invoking Miller, the California Supreme Court was effectively "denying the petition for the same reasons that it denied the previous one."
Id., 799 F.2d 1317, 1319 n.1 (9th Cir. 1986). Miller does not constitute a procedural bar to federal review. See Ylst v. Nunnemaker, 501 U.S. 797, 804 n.3 (1991) ("Since a later state decision based upon ineligibility for further state review neither rests upon procedural default nor lifts a pre-existing procedural default, its effect on the availability of federal habeas is nil.")
Accordingly, the Court holds that a citation to In re Miller is not sufficient to bar federal review of Petitioner's claims.
The Court finds that the Waltreus and Miller rules are not sufficient to bar federal review of Claims 6, 7, and 15. The Court further finds that Respondent has failed to carry his ultimate burden of demonstrating that the untimeliness, successiveness, and pretermitted (Dixon) bars are consistently applied. Therefore, the Court cannot conclude those procedural bars are sufficient to prohibit the consideration of Claims 1, 3-9, 12-16, and 69 on the merits. Accordingly, Respondent's motion to dismiss those claims on the basis of procedural default is DENIED.
The United States Supreme Court, addressing perceived inconsistencies in its prior retroactivity jurisprudence, held that "new" constitutional rules of criminal procedure will not be applied retroactively to cases on collateral review unless they fall within two narrow exceptions. Teague v. Lane, 489 U.S. 288 (1989). A new rule is one that "breaks new ground or imposes a new obligation on the States or the Federal Government" or one whose "result was not dictated by precedent existing at the time defendant's conviction became final." Id. at 301. The two exceptions to the Teague rule are: (1) rules placing certain kinds of private individual conduct beyond the power of the criminal law to prohibit, and (2) procedures implicit in the concept of ordered liberty without which the likelihood of an accurate conviction is seriously diminished. Penry v. Lynaugh, 492 U.S. 302, 305 (1989), abrogated on other grounds, Atkins v. Virginia, 536 U.S. 304 (2002); Graham v. Collins, 506 U.S. 461, 478 (1993).
When the state properly argues that a "defendant seeks the benefit of a new rule of constitutional law, the court must apply Teague v. Lane before considering the merits of the claim." Caspari v. Bohlen, 510 U.S. 383, 389 (1994). Under Teague, habeas relief is generally unavailable if it is based "on a rule announced after [a petitioner's] conviction and sentence became final." Id. The first step in a Teague analysis, therefore, is to determine whether a petitioner is seeking the benefit of a constitutional rule announced after his or her conviction became final. Id. at 389-90.
In the Answer to the Second Amended Petition ("Answer"), Respondent asserts the Teague bar for Claims 1-9, 12-16, and 69 - every claim in Group Five. Respondent's argument on those claims consists solely of the general contention that "Petitioner has not shown that the claim does not rest upon a new rule barred under Teague v. Lane."
The Ninth Circuit recently expressed its view on the duties placed on the state to properly raise and plead a claim made under Teague:
If a state seriously wishes to press Teague upon us, at a minimum Teague should be identified as an issue (indeed the first issue) on appeal, the new rule of constitutional law that falls within its proscription should be articulated, the reasons why such a rule would not have been compelled by existing precedent should be explained with particular reference to the appropriate universe of precedent, and an argument should be made why the rule contended for is not within one of Teague's exceptions.
Respondent merely references Teague in the Answer and fails to properly develop his Teague argument with respect to any of the Group Five claims in the merits briefing. The Ninth Circuit places the burden on the state to articulate and present this argument, and Respondent's burden to raise and plead a Teague claim is not satisfied by little more than a one-line citation to Teague. Therefore, the Court will not conduct an analysis on whether Claims 1-9, 12-16, and 69 are barred under Teague v. Lane.
A. Standard of Merits Review under AEDPA
Title 28, United States Code, § 2254(a), sets forth the following 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. § 2254(a) (emphasis added).
In Lindh v. Murphy, 521 U.S. 320, 336 (1997), the United States Supreme Court held that the new provisions of the Anti-terrorism and Effective Death Penalty Act of 1996 ("AEDPA") "generally apply only to cases filed after the Act became effective." In capital habeas actions, cases are typically commenced by the filing of requests for appointment of counsel and stays of execution of the petitioners' death sentences. Petitioner filed his request for appointment of counsel and stay of execution on April 27, 2001 and filed his petition with this Court on May 3, 2002. AEDPA became effective on April 24, 1996, when the President signed it into law. See id. Accordingly, AEDPA applies to this case.
Relevant to this case are the changes AEDPA rendered to 28 U.S.C. § 2254(d), which 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 the State court proceeding.
28 U.S.C.A. § 2254(d)(1)-(2).
A decision is "contrary to" clearly established law if it fails to apply the correct controlling authority, or if it applies the controlling authority to a case involving facts materially indistinguishable from those in a controlling case, but nonetheless reaches a different result. See Williams v. Taylor, 529 U.S. 362, 413 (2000). A decision involves an "unreasonable application" of federal law if "the state court identifies the correct governing legal principle... but unreasonably applies that principle to the facts of the prisoner's case." Id.; Bruce v. Terhune, 376 F.3d 950, 953 (9th Cir. 2004).
Even when the federal court undertakes an independent review of the record in the absence of a reasoned state court decision, the federal court must "still defer to the state court's ultimate decision." Pirtle v. Morgan, 313 F.3d 1160, 1167 (9th Cir. 2002). If the state court decision does not furnish any analytical foundation, the review must focus on Supreme Court cases to determine "whether the state court's resolution of the case constituted an unreasonable application of clearly established federal law." Greene v. Lambert, 288 F.3d 1081, 1089 (9th Cir. 2001). Federal courts also look to Ninth Circuit law for persuasive authority in applying Supreme Court law, and to determine whether a particular state court decision is an "unreasonable application" of Supreme Court precedent. Davis v. Woodford, 384 F.3d 628, 638 (9th Cir. 2004).
The Group Five Claims were each denied on the merits by the California Supreme Court in the September 2003 Order which stated, "The petition for writ of habeas corpus is denied. All claims are denied on the merits." Therefore, the Court will conduct an independent review of the record with respect to these claims. See Pirtle, 313 F.3d at 1167.
B. Standard for Evidentiary Hearing
AEDPA also limited the circumstances under which district courts may grant an evidentiary hearing. Section 2254(e)(2) provides:
If the applicant has failed to develop the factual basis of a claim in State court proceedings, the court shall not hold an evidentiary hearing unless the applicant shows that--
(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 constitutional error, no reasonable factfinder would have found the applicant guilty of the underlying offense.
Under AEDPA, when determining whether to grant an evidentiary hearing, the district court must first ascertain whether the petitioner has failed to develop the factual basis of a claim in state court. Insyxiengmay v. Morgan, 403 F.3d 657, 670 (9th Cir. 2005). As explained by the Supreme Court:
For state courts to have their rightful opportunity to adjudicate federal rights, the prisoner must be diligent in developing the record and presenting, if possible, all claims of constitutional error. If the prisoner fails to do so, himself or herself contributing to the absence of a full and fair adjudication in state court, § 2254(e)(2) prohibits an evidentiary hearing to develop the relevant claims in federal court, unless the statute's other stringent requirements are met.
If the petitioner has not failed to develop the facts in state court, an evidentiary hearing is required if: (1) the petitioner establishes a colorable claim for relief -- i.e., petitioner alleges facts that, if proven, would entitle him to habeas relief; and (2) the petitioner did not receive a full and fair opportunity to develop those facts. Earp v. Ornoski, 431 F.3d 1158, 1167 (9th Cir. 2005). The second requirement is met by a showing that:
(1) the merits of the factual dispute were not resolved in the state hearing; (2) the state factual determination is not fairly supported by the record as a whole; (3) the fact-finding procedure employed by the state court was not adequate to afford a full and fair hearing; (4) there is a substantial allegation of newly discovered evidence; (5) the material facts were not adequately developed at the state-court hearing; or (6) for ...