FINDINGS & RECOMMENDATIONS
Petitioner is a state prisoner proceeding in propria persona with an application for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. Petitioner challenges a 2000 judgment of conviction entered against him in the Sacramento County Superior Court on one count of attempted robbery with four prior serious felonies and three prior prison terms. He seeks relief on the alleged grounds that: (1) his right to due process was violated by the giving of a jury instruction; and (2) the prosecutor committed misconduct during her closing argument; and (3) his trial counsel rendered ineffective assistance. Upon careful consideration of the record and the applicable law, the undersigned recommends that petitioner's application for habeas corpus relief be denied.
A jury convicted defendant Kwaheri Morris Rowland of attempted robbery (Pen.Code, §§ 211, 664; further statutory references are to the Penal Code) and found he had suffered four prior serious felony convictions (§§ 667, 1170.12), and had served three prior prison terms (§ 667.5, subd. (b)). Defendant was sentenced to state prison for 41 years to life, consisting of 25 years to life for the present offense, 15 years for three serious felonies, and one year for a prior prison term.
In May 2000, Stanley Brooks was working the night shift at Lil Joe's Restaurant. At approximately 9:15 p.m., defendant approached Brooks at the cash register with the apparent intent to purchase a soda. However, once Brooks opened the register drawer, defendant reached over the counter and into the drawer to grab the money in the register. Brooks reacted immediately by trying to close the drawer. A restaurant patron jumped to Brooks's assistance and slammed the register drawer shut. Defendant then wrestled with Brooks and the patron in an attempt to take the entire cash register. Someone shouted for law enforcement to be summoned. Defendant gave up and tried to flee. His escape was thwarted by several individuals who physically restrained him until the police arrived.
A. Standards for a Writ of Habeas Corpus
Federal habeas corpus relief is not available for any claim decided on the merits in state court proceedings unless the state court's 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.
Under section 2254(d)(1), a state court decision is "contrary to" clearly established United States Supreme Court precedents "if it 'applies a rule that contradicts the governing law set forth in [Supreme Court] cases', or if it 'confronts a set of facts that are materially indistinguishable from a decision'" of the Supreme Court and nevertheless arrives at a different result. Early v. Packer, 537 U.S. 3, 8 (2002) (quoting Williams v. Taylor, 529 U.S. 362, 405-406 (2000)).
Under the "unreasonable application" clause of section 2254(d)(1), a federal habeas court may grant the writ if the state court identifies the correct governing legal principle from the Supreme Court's decisions, but unreasonably applies that principle to the facts of the prisoner's case. Williams, 529 U.S. at 413. A federal habeas court "may not issue the writ simply because that court concludes in its independent judgment that the relevant state-court decision applied clearly established federal law erroneously or incorrectly. Rather, that application must also be unreasonable." Id. at 412; see also Lockyer v. Andrade, 538 U.S. 63, 75 (2003) (it is "not enough that a federal habeas court, in its independent review of the legal question, is left with a 'firm conviction' that the state court was 'erroneous.'")
The court looks to the last reasoned state court decision as the basis for the state court judgment. Avila v. Galaza, 297 F.3d 911, 918 (9th Cir. 2002). Where the state court reaches a decision on the merits but provides no reasoning to support its conclusion, a federal habeas court independently reviews the record to determine whether habeas corpus relief is available under section 2254(d). Delgado v. Lewis, 223 F.3d 976, 982 (9th Cir. 2000).
1. Jury Instruction Error
Petitioner claims that his right to due process was violated by the giving of a jury instruction which "lowered the prosecution burden of proof below the requirements of Constitutional due process." Pet. at 6. Petitioner raised this claim for the first time in a petition for a writ of habeas corpus filed in the California Court of Appeal. Answer, Ex. 5. The Court of Appeal denied the petition with a citation to In re Hillery, 202 Cal.App.2d 293 (1962).*fn2 Answer, Ex. 6. Petitioner raised the claim again in a petition for writ of habeas corpus filed in the California Supreme Court. Answer, Ex. 7. The Supreme Court denied the petition with citations to In re Swain, 34 Cal.2d 300, 304 (1949); People v. Duvall, 9 Cal.4th 464, 474 (1995); In re Lindley, 29 Cal.2d 709 (1947); and In re Dixon, 41 Cal.2d 756 (1953). Answer, Ex. 8. Respondent argues that the California Supreme Court's citation to "several well established cases applying state procedural default rules" constitutes a procedural bar which precludes this court from addressing the merits of petitioner's claim of jury instruction error. Answer at 7. Respondent also urges this court to deny petitioner's claim of jury instruction error on the merits. Id. at 10.
State courts may decline to review a claim based on a procedural default. Wainwright v. Sykes, 433 U.S. 72, 81-82 (1977). As a general rule, a federal habeas court "'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.'" 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 state rule is only "adequate" if it is "firmly established and regularly followed." Id. (quoting Ford v. Georgia, 498 U.S. 411, 424 (1991)). See also Bennett v. Mueller, 322 F.3d 573, 583 (9th Cir. 2003) ("[t]o be deemed adequate, the state law ground for decision must be well-established and consistently applied.") The state rule must also be "independent" in that it is not "interwoven with the federal law." Park v. California, 202 F.3d 1146, 1152 (9th Cir. 2000) (quoting Michigan v. Long, 463 U.S. 1032, 1040-41 (1983)). Even if the state rule is independent and adequate, the claims may be heard if the petitioner can show: (1) cause for the default and actual prejudice as a result of the alleged violation of federal law; or (2) that failure to consider the claims will result in a fundamental miscarriage of justice. Coleman, 501 U.S. at 749-50. Procedural default is an affirmative defense, and the state has the burden of showing that the default constitutes an adequate and independent ground. Insyxiengmay v. Morgan, 403 F.3d 657, 665-66 (9th Cir. 2005); Bennett, 322 F.3d at 585-86.
Petitioner has procedurally defaulted his jury instruction claim only if the four cases cited by the California Supreme Court in support of its denial of petitioner's habeas petition provide adequate and independent state grounds for the Supreme Court's decision. Washington v. Cambra, 208 F.3d 832, 834 (9th Cir. 2000). This is so because the California Supreme Court invoked all four rules without specifying which rule applied to which of petitioner's claims. See Bean, 96 F.3d at 1131 (state procedural default no bar to federal review where state court's order did not specify which rule applied to which claims); Morales v. Calderon, 85 F.3d 1387, 1392 (9th Cir. 1996) ("[A] procedural default based on an ambiguous order that does not clearly rest on independent and adequate state grounds is not sufficient to preclude federal collateral review") (citing Siripongs v. Calderon, 35 F.3d 1308, 1317-18 (9th Cir. 1994)).
The court concludes that the California Supreme Court's citation to In re Dixon does not constitute an adequate and independent procedural rule. Nonetheless, the Dixon bar may be "independent" as applied in this case. See Bennett, 322 F.3d at 581-83. Respondent, however, has not met his burden of demonstrating that the Dixon bar is "adequate," having been regularly and consistently applied in habeas actions post-1993.*fn3 322 F.3d at 583-86. See also Wyrick v. Newland, No. C 03-5623 JSW, 2007 WL 760529, at *5-6 (N.D. Cal. Mar. 9, 2007) (rejecting argument that citation to Dixon constituted adequate procedural bar and finding that the state had failed to meet its burden of proof under Bennett of establishing the adequacy of the procedural bar to preclude federal review).
The California Supreme Court also denied petitioner's claims with a citation to In re Swain. In Swain, the California Supreme Court denied without prejudice the petitioner's untimely and vague application for a writ of habeas corpus, stating: "We are entitled to and we do require of a convicted defendant that he allege with particularity the facts upon which he would have a final judgment overturned and that he fully disclose his reasons for delaying in the presentation of those facts." 34 Cal.2d at 304. Accordingly, a citation to In re Swain indicates either that a petitioner has not made allegations with sufficient particularity or that the petitioner has failed to explain his delay in raising an issue.
As a general rule, a citation to In re Swain indicates that claims have not been presented to the California Supreme Court with sufficient specificity and a dismissal on that ground is without prejudice to the filing of a new, sufficient petition. Thus, the federal courts generally view claims dismissed with a citation to In re Swain as unexhausted. See Kim v. Villalobos, 799 F.2d 1317, 1319 (9th Cir. 1986) (the denial of a habeas petition by California courts with a citation to In re Swain is deemed a denial on procedural grounds, leaving state remedies unexhausted); Harris v. Superior Court, 500 F. 2d 1124, 1128, (9th Cir. 1974) (en banc) (denial of a habeas petition by the Supreme Court of California with a citation to In re ...