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Ernie Roxas v. A. Montal

October 26, 2011

ERNIE ROXAS, PETITIONER,
v.
A. MONTAL, RESPONDENT.



The opinion of the court was delivered by: Timothy J Bommer United States Magistrate Judge

ORDER, FINDINGS AND RECOMMENDATIONS

Petitioner, Ernie Roxas, is a state prisoner proceeding with a pro se petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254. Petitioner is currently serving a determinate sentence of fourty-six years in prison after a jury found him guilty on one count of continuous sexual abuse of a child, five counts of forcible rape, and two counts of lewd acts with a child. Petitioner raises four claims in this federal habeas petition; specifically: (1) his trial counsel was ineffective in failing to investigate the facts and law of his case ("Claim I"); (2) the trial court erred in not dismissing his case on statute of limitations grounds ("Claim II"); (3) his conviction was the result of a biased juror which the trial court failed to investigate ("Claim III"); and, (4) his appellate counsel was ineffective in failing to raise certain claims on appeal and for causing Petitioner's state habeas petitions to be untimely filed ("Claim IV"). For the reasons stated herein, the federal habeas petition should be denied.

I. FACTUAL BACKGROUND*fn1

Defendant repeatedly molested his live-in niece from about the time she was in the sixth grade until she moved out at the age of 17. A jury convicted him of one count of continuous sexual abuse of a child (Pen.Code, § 288.5, subd. (a)), five counts of forcible rape (Pen.Code, § 261, subd. (a)(2)), and two counts of lewd acts with a child. (Pen.Code, § 288, subd. (a).)

The trial court sentenced defendant to an aggregate prison term of 46 years, computed as follows: The middle term of 12 years for the continuous sexual abuse count, plus consecutive full terms of six years for each of the five rape counts, plus two consecutive two-year terms (one-third of the middle term) for the lewd act counts.

II. APPLICABLE LAW FOR FEDERAL HABEAS CORPUS

An application for writ of habeas corpus by a person in custody under judgment of a state court can only be granted for violations of the Constitution or laws of the United States. See 28 U.S.C. § 2254(a); see also Peltier v. Wright, 15 F.3d 860, 861 (9th Cir. 1993); Middleton v. Cupp, 768 F.2d 1083, 1085 (9th Cir. 1985) (citing Engle v. Isaac, 456 U.S. 107, 119 (1982)). Petitioner filed this petition for writ of habeas corpus after April 24, 1996, thus the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA") applies. See Lindh v. Murphy, 521 U.S. 320, 326 (1997). Under AEDPA, federal habeas corpus relief is not available for any claim decided on the merits in the 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 state court. See 28 U.S.C. § 2254(d); Perry v. Johnson, 532 U.S. 782, 792-93 (2001); Williams v. Taylor, 529 U.S. 362, 402-03 (2000).

In applying AEDPA's standards, the federal court must "identify the state court decision that is appropriate for our review." Barker v. Fleming, 423 F.3d 1085, 1091 (9th Cir. 2005). "The relevant state court determination for purposes of AEDPA review is the last reasoned state court decision." Delgadillo v. Woodford, 527 F.3d 919, 925 (9th Cir. 2008) (citations omitted). "Where there has been one reasoned state judgment rejecting a federal claim, later unexplained orders upholding that judgment or rejecting same claim rest upon the same ground." Ylst v. Nunnemaker, 501 U.S. 797, 803 (1991). To the extent no such reasoned opinion exists, courts must conduct an independent review of the record to determine whether the state court clearly erred in its application of controlling federal law, and whether the state court's decision was objectively unreasonable. Delgado v. Lewis, 223 F.3d 976, 981-82 (9th Cir. 2000). "The question under AEDPA is not whether a federal court believes the state court's determination was incorrect but whether that determination was unreasonable-a substantially higher threshold." Schriro v. Landrigan, 550 U.S. 465, 473 (2007) (citing Williams, 529 U.S. at 410). "When it is clear, however, that the state court has not decided an issue, we review that question de novo." Reynoso v.Giurbino, 462 F.3d 1099, 1109 (9th Cir. 2006) (citing Rompilla v. Beard, 545 U.S. 374, 377 (2005).

III. ANALYSIS OF PETITIONER'S CLAIMS 1. Claims I, II, and III

Petitioner raised Claims I, II, and III in successive habeas corpus petitions to the California Supreme Court. The California Supreme Court denied the petitions as untimely, citing In re Clark, 5 Cal.4th 750, 21 Cal.Rptr.2d 509, 855 P.2d 729 (1993). Respondent maintains that as a result of the untimeliness finding Petitioner's claims are procedurally barred. In turn, Petitioner, relying on Brown v. Lee, 319 F.3d 162, 175 (4th Cir. 2003), and Coleman v. Dretke, 395 F.3d 216, 220 (5th Cir. 2004), argues that California's untimeliness bar is inconsistently applied and thus cannot support a procedural bar to raising his claims in federal court. The Supreme Court of the United States' recent holding in Walker v. Martin, 562 U.S. __, 131 S. Ct. 1120, 1127 (2011), precludes Petitioner's argument and, as such, Petitioner's claims are procedurally barred.

California does not employ fixed statutory deadlines to determine the timeliness of a state prisoner's petition for habeas corpus. Instead, California directs petitioners to file known claims "as promptly as the circumstances allow." In re Clark, 5 Cal.4th at 765, n. 5. Petitioners are further instructed to state when they first learned of the asserted claims and to explain why they did not seek post-conviction relief sooner. In re Robbins, 18 Cal.4th 770, 780, 77 Cal.Rptr.2d 153, 959 P.2d 311, 317-318 (1998). Claims substantially delayed without justification may be denied as untimely. Id.; Clark, 5 Cal.4th, at 765, n. 5. California courts "appl[y] a general 'reasonableness' standard" to judge whether a habeas petition is timely filed. Walker v. Martin, __ U.S. __, 131 S.Ct. 1120, 1125 (2011)(quoting Carey v. Saffold, 536 U.S. 214, 222 (2002)).

Three leading decisions describe California's timeliness requirement: Robbins, Clark, and In re Gallego, 18 Cal.4th 825, 77 Cal.Rptr.2d 132, 959 P.2d 290 (1998). A prisoner must seek habeas relief without "substantial delay," Robbins, 18 Cal.4th, at 780; Gallego, 18 Cal.4th at 833; Clark, 5 Cal.4th at 783, as "measured from the time the petitioner or counsel knew, or reasonably should have known, of the information offered in support of the claim and the legal basis for the claim," Robbins, 18 Cal.4th, at 787. Petitioners in non-capital cases have "the burden of establishing (i) absence of substantial delay, (ii) good cause for the delay, or (iii) that the claim falls within an exception to the bar of untimeliness." Id. at 780. "California courts signal that a habeas petition is denied as untimely by citing the controlling decisions, i.e., Clark and Robbins." Martin, 131 S.Ct. at 1124.

In Martin, the Supreme Court was faced with the issue of whether the California Supreme Court's denial of a habeas petition citing In re Clark, supra, represented an adequate procedural bar that prevented Martin's claims from being reviewed on the merits when he sought federal habeas relief. Martin had filed a successive petition for habeas corpus in the California Supreme Court, raising a claim for ineffective assistance of counsel that he had failed to previously raise in his original state habeas petition. Martin, 131 S.Ct. at 1126. The California Supreme Court's order denying the petition read in its entirety: "Petition for writ of habeas corpus is DENIED. (See In re Clark (1993) 5 Cal.4th 750, 21 Cal.Rptr.2d 509, 855 P.2d 729, In re Robbins (1998) 18 Cal.4th 770, 780, 77 Cal.Rptr.2d 153, 959 P.2d 311.)." Id. The Supreme Court concluded that such a dismissal on timeliness grounds under California law represented an adequate and consistently applied independent state law bar such that Martinwas precluded from bringing his federal claims in federal court. Id. at 1128-29; see Coleman v. Thompson, 501 U.S. 722, 729 (1991).

In the instant case, Petitioner raised Claims I, II, and III in successive petitions to the California Supreme Court. In Petitioner's first state habeas petition, Petitioner raised one claim for relief alleging that his trial counsel was ineffective for failure to suppress evidence that was obtained in violation of Petitioner's rights under Miranda*fn2 and the Fourth, Fifth, Sixth, Seventh, Eighth, and 14th Amendments. See Lodged Doc. No. 4 (First Petition), at 3. A claim ...


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