ORDER and FINDINGS & RECOMMENDATIONS
After respondent filed an Answer to the First Amended Petition, the court ordered the parties to brief respondent's assertions that the procedural default doctrine and the non-retroactivity doctrine of Teague v. Lane, 489 U.S. 288 (1989) bar some of petitioner's claims. Oct. 25, 2007 Order. During the course of this briefing, petitioner filed a motion to strike respondent's assertions of Teague. On January 14, 2009, the court heard oral argument on the procedural default and Teague issues. Peter Giannini appeared telephonically and Hilary Sheard appeared in the courtroom for petitioner. Angelo Edralin appeared for respondent. Upon review of the documents in support and opposition of both respondent's assertion of the Teague and procedural default defenses and of petitioner's motion to strike, upon hearing the arguments of counsel and good cause appearing therefor, the court finds and recommends as follows.
Respondent asserts twenty-three of petitioner's claims are barred by the non-retroactivity doctrine of Teague.*fn1 Petitioner has moved to strike the Teague allegations. Petitioner argues respondent has not pled Teague adequately in either his Answer or in his current briefing.
In Teague, the United States Supreme Court held that "new" constitutional rules of criminal procedure will not be applied retroactively to cases on collateral review unless they fall within one of two narrow exceptions. 489 U.S. 288 at 310. A new rule is one that "breaks new ground or imposes a new obligation on the States or the Federal Government." Id. at 301. A new rule's "result was not dictated by precedent existing at the time defendant's conviction became final." Id. The first exception to the Teague rule is for "certain kinds of primary, private individual conduct beyond the power of the criminal law-making authority to proscribe." Id. at 311 (quoting Mackey v. United States, 401 U.S. 667, 692 (1971)). The second exception is for "watershed rules of criminal procedure;" in other words, "those procedures that... are 'implicit in the concept of ordered liberty.'" Id. (quoting Mackey, 401 U.S. at 693). See also 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).
It is clear respondent may waive the Teague defense by failing to raise it. See Caspari v. Bohlen, 510 U.S. 383, 389 (1994) (Teague not jurisdictional; court may refuse to consider it if state does not raise it). It is less clear just what respondent must do to plead Teague. The Court of Appeals for the Ninth Circuit has set out four requirements that must be satisfied when the state "seriously wishes to press Teague upon us." Arredondo v. Ortiz, 365 F.3d 778, 781-82 (9th Cir. 2004). The four requirements are: (1) respondent should identify Teague as an issue; (2) respondent should articulate "the new rule of constitutional law that falls within its proscription;" (3) respondent should explain "with particular reference to the appropriate universe of precedent" "why such a rule would not have been compelled by existing precedent;" and (4) respondent should show why the rule is "not within one of Teague's exceptions." Id. at 781-82. The court in Arredondo considered Teague in the same opinion it considered the merits. Therefore, it is difficult to determine whether the court in Arredondo meant to describe a pleading standard or a burden of proof. In most capital cases in this district, the petition and answer do not constitute the final points and authorities on the merits and defenses. In other words, respondent was not required to carry his full burden of proof when pleading Teague in the present case. Further, the Court of Appeals did not make satisfaction of the four requirements mandatory. Respondent "should," not "must," establish each of the four factors. That said, this court ordered respondent to file a memorandum of points and authorities addressing the Teague issue. Oct. 25, 2007 Order. At the very least, that order required respondent to make some showing that the rule petitioner seeks to have applied is not "compelled by existing precedent," by referring to "the appropriate universe of precedent." Arredondo, 365 F.3d at 781-82.
For the most part, respondent did little more than cite to Teague in the Answer and has done nothing to further brief the issue when given the opportunity. However, it is possible to equate respondent's merits discussions of many claims in the Answer with an argument that petitioner seeks application of a new rule. Petitioner admits as much in his motion to strike: "some of Respondent's arguments are more fully developed with regard to the first three Arredondo requirements." Pet'r's Aug. 19, 2008 Mot. to Strike at 6:7-8. Petitioner does not, however, identify which assertions of Teague have some development. Petitioner only discusses a few arguments in the Answer to show, by example, how respondent has failed to meet his alleged burden under Arredondo.
The court finds respondent's arguments that some of petitioner's claims cannot succeed because they are directly refuted by existing case law to be minimally sufficient arguments that petitioner seeks the application of new rules. See Answer at 3:7-9, 65-66, 88-89, 92, 93, 95-96, 97-98, 98-99, 100-102, 103-104, 105-106, 108-109, 115-118, 120, 126-127, 128-129, 133. In addition, in his opposition to the motion to strike, respondent addresses the Teague exceptions, responding to petitioner's allegation that the Teague defenses should be stricken based on respondent's failure to argue the fourth Arrendondo factor. Resp't's Opp'n to Mot. to Strike ("Resp't's Opp'n") at 1-6. Therefore, the court will recommend denial of petitioner's motion to strike the Teague defense to the following claims: 21, 22, 30, 35, 36, 38, 40.A, 40.B, 40.C.2-7, 40.C.9-10, 41.B-F, 41I, 41.J, 41.L, 42, 47, 48, 49, 50.A, 50.C, 53, 54, 57, and 67. Because determining the applicability of Teague will require an analysis of the merits, and because the parties have not briefed those issues in any detail, the court will defer consideration of the Teague issue on these claims until it reaches the merits of petitioner's claims.
With regard to respondent's assertion that Teague bars other claims, however, respondent fails to make convincing arguments, in the Answer or otherwise, that petitioner seeks a new rule. With respect to several claims, respondent's merits discussions do not lend themselves to application of Teague's new rule bar. Every argument that case law does not support a claim does not necessarily mean petitioner seeks a new rule. See Fields v. Brown, 503 F.3d 755, 772 (9th Cir. 2007) (en banc) ("[W]e do not require the existence of a case for Teague purposes 'involving identical facts, circumstances, and legal issues.'") (citation omitted). Another problem is that respondent simply elides his arguments under the merits review standard and Teague by stating with respect to many claims that "given the lack of Supreme Court precedent on point, relief on this claim would require the announcement of a new rule in violation of Teague." Answer at 41:11-12; see also Resp't's Opp'n at 7:4-23. While a federal court on habeas may not overturn a state court decision unless it "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," the Teague retroactivity bar is not so limited. 28 U.S.C. § 2254(d)(1). Rather, as petitioner points out, "'circuit court holdings suffice to create' an old rule under Teague." Butler v. Curry, 528 F.3d 624, 635 n.10 (9th Cir. 2008) (quoting Leavitt v. Arave, 383 F.3d 809, 819 (9th Cir. 2004) (per curiam)); Jackson v. Brown, 513 F.3d 1057, 1073 n.8 (9th Cir. 2008) ("The State urges that in analyzing whether a rule is new, we should consider only Supreme Court cases. We have rejected this argument, as has the Supreme Court."); Caspari v. Bohlen, 510 U.S. 383, 395 (1994) ("Constitutional law is not the exclusive province of the federal courts, and in the Teague analysis the reasonable views of state courts are entitled to consideration along with those of federal courts."). Because respondent has not provided sufficient reasons in the Answer or in response to petitioner's motion for the court to wait to consider the issue, despite being given an additional opportunity to do so, the court finds respondent has waived the right to assert that Teague bars the following claims: 4, 6, 29, 40.C.1, 40.C.8, 40.D, 41.G, 41.M, 45, 55. See Answer at 40-41, 42-43, 87-88, 98, 100, 102, 104-105, 107, 112-113, 127-128. In addition, even though respondent mentions Teague with respect to claims 40.E, 44, and 46, he fails to show how the rule petitioner seeks in those claims "was not dictated by precedent." See Answer at 103, 111-112, 113-115. The court finds respondent's assertions of Teague with respect to claims 40.E, 44, and 46 waived as well.
Respondent argues the procedural bar doctrine precludes consideration of petitioner's claims that were denied by the California Supreme Court for untimeliness, as successive, because they should have been raised on appeal, and because petitioner's counsel failed to object at trial.
Under the doctrine of procedural default, 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." Coleman v. Thompson, 501 U.S. 722, 729 (1991). "For a state procedural rule to be 'independent,' the state law basis for the decision must not be interwoven with federal law." LaCrosse v. Kernan, 244 F.3d 702, 704 (9th Cir. 2001) (citing Michigan v. Long, 463 U.S. 1032, 1040-41 (1983)). A state law ground is interwoven with federal law if application of the state procedural rule requires the state court to resolve a question of federal law. Park v. California, 202 F.3d 1146, 1152 (9th Cir. 2000) (citing Ake v. Oklahoma, 470 U.S. 68, 75 (1985)). If the state court does not make clear that it is resting its decision on an independent and adequate state ground, it is presumed that the state denial was based at least in part upon federal grounds. Calderon v. United States District Court (Bean), 96 F.3d 1126, 1129 (9th Cir. 1996).
For a state procedural rule to be "adequate," it must be clear, well-established and consistently applied. Bean, 96 F.3d at 1129. The adequacy of a state procedural rule must be assessed as of the time the petitioner committed the default. Fields v. Calderon, 125 F.3d 757, 760 (9th Cir. 1997). The burden of proving the adequacy of a state procedural rule lies with the state. Bennett v. Mueller, 322 F.3d 573, 585-86 (9th Cir. 2003). In Bennett, the Court of Appeals established a three-part burden-shifting process for determining whether a state procedural rule is adequate. First, the state must adequately plead the existence of an independent and adequate procedural ground as a defense. Id. at 586. Then, the burden shifts to petitioner, who "may satisfy this burden by asserting specific factual allegations that demonstrate the inadequacy of the state procedure, including citation to authority demonstrating inconsistent application of the rule." Id. "To challenge the adequacy of the procedural bars, [the petitioner's] burden is 'quite modest: at most, Petitioner need only assert allegations; he does not need to prove anything.'" Jones v. Woodford, No. 03cv1463J(RBB), 2008 WL 505230 at *37 (S.D. Cal. Feb. 25, 2008) (quoting Dennis v. Brown, 361 F. Supp. 2d 1124, 1130 (N.D. Cal. 2005)*fn2 ).
"[S]imply contesting the adequacy of a state rule [is] sufficient to meet the petitioner's burden under Bennett if we have previously found the rule to be too ambiguous to bar federal review during the applicable time period." King v. Lamarque, 464 F.3d 963, 967 (9th Cir. 2006). On the other hand, if a rule has been found to be consistently applied, petitioner must show how the rule has "become inconsistent and irregular." Ortiz v. Stewart, 149 F.3d 923, 932 (9th Cir. 1998); Howard v. McDaniel, No. 2:93-CV-01209-LRH-LRL, 2008 WL 115380 (D. Nev. Jan. 9, 2008) (because Court of Appeals in Moran previously found Nevada consistently applied its timeliness bar, petitioner must demonstrate how Nevada's rule had been inconsistently applied since Moran).*fn3 The ultimate burden of proving adequacy then shifts back to the state. Id.
If the procedural rule is found to be independent and adequate, then habeas review is barred unless petitioner can show cause for the default and "actual prejudice as a result of the alleged violation of federal law, or demonstrate that failure to consider the claims will result in a fundamental miscarriage of justice." Coleman, 501 U.S. at 729.
Respondent alleges the following claims in the amended petition are barred by the procedural default doctrine because they were found untimely by the California Supreme Court: 3, 5, 6, 20, 21, 23, 29, 30, 31, 32, 37, 38, 41, 42, 44, 46, 65 and 66. See Resp't's Jan. 14, 2008 Brief re Proc. Def. and Teague ("Resp't's Brief") at 6:4.
The adequacy of the timeliness bar must be determined as of the date of the purported default. Fields, 125 F.3d at 760. Here, petitioner's first state petition, which the California Supreme Court did not find untimely, was filed March 25, 2003. That, then, is the earliest possible date of petitioner's default. California's timeliness rules for capital habeas petitions at that time stated:
All petitions for writs of habeas corpus should be filed without substantial delay. 1-1.2. A petition filed more than 180 days after the final due date for the filing of appellant's reply brief on the direct appeal, or more than 24 months after appointment of habeas corpus counsel, whichever is later, may establish absence of substantial delay if it alleges with specificity facts showing the petition was filed within a reasonable time after petitioner or counsel (a) knew, or should have known, of facts supporting a claim and (b) became aware, or should have become aware, of the legal basis for the claim. 1-2. If a petition is filed after substantial delay, the petitioner must demonstrate good cause for the delay. A petitioner may establish good cause by showing particular circumstances sufficient to justify substantial delay. 1-3. Any petition that fails to comply with these requirements may be denied as untimely. 1-4. The court may toll the 180-day period of presumptive timeliness for the filing of a capital-related habeas corpus petition (which begins to run from the final due date to file the appellant's reply brief in the appeal) when it authorizes the appellant to file supplemental briefing. The court will not toll before the 180-day presumptive timeliness period begins to run or after it has finished running.
Supreme Court Policies in Cases Arising from Judgments of Death, Policy 3: Standards Governing Filing of Habeas Corpus Petitions and Compensation of Counsel in Relation to such Petitions (2002).
In this proceeding, this court previously addressed the question of the consistency of California's application of its timeliness rule. In May 2006, this court held the filing of a protective federal petition to avoid statute of limitations problems was justified because petitioner had shown "reasonable confusion" over California's timeliness rules. May 18, 2006 Findings & Recommendations at 13-18, adopted, Sept. 29, 2006 Order. This court agreed with the decision in Dennis, 361 F. Supp. 2d at 1132-34, that California's timeliness rule is neither regularly nor consistently applied. Id. at 17. Thus, this court concluded California's timeliness rules "lack clarity." Id. at 18. Courts that have considered the issue since then also have agreed with Dennis. See Carpenter v. Ayers, 548 F. Supp. 2d 736, 755 (N.D. Cal. 2008); Jones v. Ayers, No. CIV S-97-2167-MCE-CMK, 2008 WL 906302 (E.D. Cal. Mar. 31, 2008), adopted 2008 WL 4472888 (E.D. Cal. Sept. 30, 2008); Ayala v. Ayers, No. 01cv0741 BTM, 2008 WL 1787317 (S.D. Cal. Apr. 16, 2008). Respondent cites only one case to the contrary, Dossman v. Newland, No. C 00-384 SI (PR), 2004 WL 302335 (N.D. Cal. Feb. 12, 2004). However, he fails to mention that Dossman was vacated. See 216 Fed. Appx. 698 (9th Cir. Jan. 8, 2007).
Respondent focuses on an argument that the timeliness rule is not facially vague. Resp't's Brief at 6-11. However, the rule's clarity is not the only issue. The rule must not only be "clear" but it must be "well-established" and "consistently applied" as well. See Bean, 96 F.3d at 1129. Respondent also argues that the California Supreme Court's unexplained ("postcard") denials may not be considered when examining the court's application of its timeliness rule. Resp't's Dec. 12, 2008 Reply re Proc. Default ("Resp't's Reply") at 2-3. It is true the Court in Bennett held that an examination of a state court's application of its procedural rules "should be limited to the language of the state court opinions" rather than "based on a post hoc examination of the pleadings and record" of those cases. 322 F.3d at 584. For the timeliness bar, it is certainly possible to determine the consistency of its application from a postcard denial. See Dennis, 361 F. Supp. 2d at 1131-31 & n.10. The court in Dennis examined 200 California Supreme Court opinions, most of which were postcard denials, and was able to determine that the court applied the timeliness bar inconsistently; the court applied the bar to some claims, but not others, in some cases, and did not always apply it the same way in similarly situated cases.
The Dennis court found this sufficient to meet the petitioner's burden of asserting inadequacy. Further, as noted by the Court of Appeals, "to the extent that decisions of the state courts are unpublished because they involve only routine applications of state court rules, unpublished decisions are a particularly useful means of determining actual practice." Powell v. Lambert, 357 F.3d 871, 879 (9th Cir. 2004), quoted in Dennis, 361 F. Supp. 2d at 1132.*fn4 In the present case, petitioner analyzes 125 state court decisions showing the California Supreme Court's disparate application of its timeliness rule. Pet'r's Opp'n to Resp't's Brief Regarding Proc. Def. and Teague ("Pet'r's Opp'n") at 24-31. This is more than enough to satisfy petitioner's burden under Bennett. Because respondent, by his counsel's own admission during the hearing, has not attempted to show consistent application of the rule, this court recommends finding the rule inadequate to bar federal review, without the need to determine whether the rule is independent of federal law.
As it did in this case, the California Supreme Court typically cites the successiveness bar along with the timeliness bar in denying second state habeas petitions. As described by the courts in Dennis, Carpenter and Ayala, cited above, the successiveness bar has not been consistently applied and will not bar federal review. Respondent also has not attempted to show consistent application of this rule. Therefore, and based on the reasoning set forth above, this rule also should not bar federal review.
The California Supreme Court denied eleven of petitioner's claims on the ground that they should have been raised on appeal. This procedural bar was set out by the California court in In re Dixon, 41 Cal. 2d 756 (1953), and reaffirmed in In re Harris, 5 Cal. 4th 813 (1993). Because petitioner filed his direct appeal in 2000, and thus according to the California Supreme Court should have raised these eleven claims then, this is a post-Harris default. In Ayala, the district judge examined a post-Harris default. The judge held that the petitioner's interim burden was satisfied by the existence of other California district court cases finding inconsistent application of the Dixon rule after 1993. Ayala, 2008 WL 1787317 at *6-7. The court first examined Vaughn v. Adams, No. CVF015241OWWDLBHC, 2006 WL 1439400, *4 (E.D. Cal. May 22, 2006), adopted, 2006 WL 1774915 (E.D. Cal. Jun 24, 2006). In Vaughn, the court considered a 1997 default. It found the petitioner's burden of showing inadequacy satisfied by producing "five cases in which just months prior to the instant default, the California Supreme Court summarily denied petitions without a citation to In re Dixon, wherein claims that were not raised on direct appeal were raised on state habeas corpus.*fn5 The Ayala court next examined Monarrez v. Alameda, No. SACV03-00104AHM(MLG), 2005 WL 2333462 (C.D. Cal. Sept. 22, 2005), in which the date of the default was January 2000. The petitioner in Monarrez presented the court with a "survey of 210 non-capital habeas corpus petitions decided on December 21, 1999, just a month before the date of the purported default, showing inconsistent application of the Dixon rule by the California Supreme Court in that the Dixon bar was applied in only 19 cases, less than 10 per cent of those decided." 2005 WL 2333462 at *5. Unsurprisingly, this showing satisfied the petitioner's interim burden. Based on the data examined by, and the holdings of, the courts in Vaughn and Monarrez, the Ayala court found the interim burden of showing inadequacy of the Dixon rule satisfied. This court finds no fault with the conclusions in Vaughn, Monarrez, and Ayala. See also Dennis, 361 F. Supp. 2d at 1130-31 (petitioner shows inconsistent application of Dixon rule to meet burden for a 1996 default); Carpenter, 548 F. Supp. 2d at 756-57 (relying in part on Dennis, court finds Dixon rule inadequate to bar federal review).
Here again, respondent has done nothing to show the Dixon rule was in fact consistently applied. Accordingly, this court should consider the merits of claims denied by the ...