The opinion of the court was delivered by: Gregory G. Hollows United States Magistrate Judge
FINDINGS & RECOMMENDATIONS
Petitioner is a state prisoner proceeding with appointed counsel with a petition for writ of habeas corpus pursuant 28 U.S.C. § 2254. The undersigned will fully set forth the procedural history of this case as the various claims have various outcomes depending on the remand instructions from the Ninth Circuit.
Petitioner sought federal habeas review of his first degree murder conviction along with other charges. In the various petitions and amended petitions, he sought review of three main claims with attendant sub-claims. The operative petition was denied on statute of limitations grounds and procedural Bar (default) grounds. (In re Robbins, 18 Cal.4th 770, 780 (1998), a timeliness bar). On appeal, the Ninth Circuit affirmed in part and reversed in part in an unpublished opinion. Some of the mandate is difficult to decipher in that the Ninth Circuit directed that certain issues be reviewed for procedural bar (default), but it also affirmed those issues on the merits. The undersigned sets forth each claim and sub-claim, the ruling of the district court and, in brackets, the rulings/directions of the Ninth Circuit:
a. consideration of petitioner's incarcerated status -- denied on the merits [affirmed];
b. jury did not presume innocence -- denied on the merits [affirmed, but procedural bar should be considered anyway]*fn1
c. jury considered (adversely) the need of a translator -- denied on the merits [affirmed, but procedural bar should be considered anyway]
d. jury speculated about sentencing -- denied on the merits [district court must consider procedural bar, and if necessary, review the merits again utilizing a potentially admissible declaration]
e. discussed case prior to deliberations -- denied on the merits [affirmed, but procedural bar should be considered anyway]
2. Prosecutorial Misconduct (inflammatory comments in final argument) -- denied on the merits [affirmed]
3. Ineffective Assistance of Counsel- a. juror misconduct (failure to interview juror re jury misconduct on speculating about sentence) -- denied on statute of limitations [reversed; district court must consider procedural bar, and if necessary, review on the merits]
b. failed to object to prosecutorial misconduct -- denied on the merits [affirmed].
The Ninth Circuit also gave a sub-instruction with respect to the procedural bar issue: "In [reviewing procedural bar], [the district court] shall consider whether [respondent], having failed to meet its burden of proving that its timeliness rule has been inconsistently applied in non-capital cases by not submitting proof of the rule's consistent application after defendant challenged its adequacy in his traverse, may introduce such evidence on remand."
After remand, and after further briefing was ordered, the parties suggested a delay in adjudicating the procedural bar issues briefing pending a Supreme Court decision in another non-capital case regarding the adequacy of the timeliness procedural bar. Walker v. Martin, __U.S.__, __S.Ct. __, 2011 WL 611627 (2011).*fn2 The parties also agreed that it made little sense to review for procedural bar those juror misconduct issues which had been affirmed on the merits. Also, it is clear that respondent never moved to have Claim 1 (e) (jury discussed case prior to deliberations) barred for procedural default. The Ninth Circuit may have overlooked that fact. Thus, the only claims for which procedural bar remain pertinent are: Claims 1(d), and 3 (a).*fn3
The undersigned will turn first to the issue of whether respondent waived the timeliness procedural bar defense by not exhaustively briefing its adequacy prior to the traverse. If then appropriate, the undersigned will review application of the bar. If the bar is valid, only if ...