The opinion of the court was delivered by: James K. Singleton, Jr. United States District Judge
Tiante Dion Scott, a state prisoner appearing pro se, filed a Petition for Habeas Corpus under 28 U.S.C. § 2254. Scott is currently in the custody of the California Department of Corrections, incarcerated at the Calipatria State Prison. Respondent has answered, and Scott has replied. Scott has also requested an evidentiary hearing.
I. BACKGROUND/PRIOR PROCEEDINGS
Following a jury trial in the Sacramento County Superior Court, Scott was convicted in December 2006 of four counts of Robbery in the First Degree in concert, Cal. Penal Code §§ 211, 213(a)(1)(A), sustained allegations of personal use of a firearm, Cal. Penal Code § 12022.53(b), and was also convicted of one count of being a Felon in Possession of a Firearm, Cal. Penal Code § 12021(a)(1). Scott also admitted a prior prison term, Cal. Penal Code § 667.5(b). The trial court sentenced Scott to an aggregate prison term of thirty-six years. The California Court of Appeal, Third Appellate District, affirmed Scott's conviction and sentence in an unpublished decision,*fn1 and the California Supreme Court summarily denied review without opinion or citation to authority on September 24, 2008. On April 10, 2009, Scott filed a petition for habeas relief in the Sacramento County Superior Court ("Superior Court"), which was denied in an unreported, reasoned decision.*fn2 The California Court of Appeal summarily denied Scott's subsequent petition for habeas relief without opinion or citation to authority, and the California Supreme Court summarily denied Scott's petition for habeas relief on January 21, 2010. Scott timely filed his Petition for relief in this Court on May 10, 2010.
The facts underlying Scott's conviction as summarized by the California Court of Appeal:
On April 24, 2006, Canh Van Le, age 78; his 72-year-old wife Nhan Dang; their 32-year-old son Huyen Le; and their 20-year-old granddaughter (Huyen's niece) Truc Anh Le lived together in a South Sacramento residence. The doorbell rang after 1:00 p.m. and Nhan answered to find a young Black man asking her questions. She did not speak English, so Nhan asked her granddaughter Truc for help.
Truc, who understood only a little English, went upstairs to get her English-speaking Uncle Huyen, but noticed she was being followed by a man with a gun. Two Black men and one Hispanic man had pushed the door open and entered the house. The victims described one of the Black robbers as short and thin while the other as big and tall. In a field identification, Truc and Huyen identified Scott as the large Black robber and Heng as the Hispanic robber. Morris is five feet five inches tall and weighed 132 pounds while Scott is five feet 10 inches tall and weighed 235 pounds. While neither Truc nor Huyen could identify Morris in a field identification, at trial all four of the victims identified the defendants as the robbers.
Truc knocked on the door of Huyen's upstairs bedroom and told him robbers were in the house. Huyen opened the door to let her enter and call 911. He closed the door, but Morris and Scott broke the door down and entered the room. Scott and Morris, both armed, told Truc to put the phone down. Scott eventually left the room to check the rest of the upstairs.
Morris remained in the room and pointed a gun at Huyen's head. Canh entered and threw himself on Huyen to keep his son from being shot. Huyen, Canh, and Truc were taken downstairs to join Nhan.
All four victims were tied up and made to lie face down next to each other. Heng took a pistol from Morris and questioned Huyen about whether there was any money in the house. When Huyen replied they had no money Heng said, "You Asian punk, you know we hear-somebody told us you have the money. That's why-what we come here for. And if you don't tell me the money, I'm gonna kill your dad, your mom and I gonna rape your niece. Is that what you want?" (Sic.)
Huyen pleaded with Heng. Heng asked Huyen who owned the car parked in front of the house. Huyen lied, telling Heng it was his brother's car, and that he had no wallet, having left it in his car. Heng hit Huyen in the head three times with the gun, asking him where the money was between strikes. Heng then did the same to Huyen's elderly parents, repeatedly striking them in the head with his gun, each time asking Huyen to look at the firearm before he struck them.
Heng told Huyen he was going to rape Truc "right now" and took off his shirt. He chambered a bullet from the magazine by pulling the slide back, put the gun to Truc's head, telling her, "Do you feel it?" and then slowly moved the weapon down her back and to her buttocks.
Fortunately, the robbers had left their stolen SUV running in front of the house. Sacramento police officers were dispatched to the home to investigate the suspicious vehicle. Before Heng could do anything more to Truc, one of the other robbers exclaimed from upstairs, "Hey, there are cops outside. There are police outside," which caused all of the robbers to run out of the house.
Heng was apprehended by the police officers as he tried to leave through the back door. Morris and Scott fled by jumping to the roof of the house next door before going back to the ground, where they were chased by the police on foot and separately caught.
The robbers took credit cards and $1,500 in cash belonging to Canh and Nhan. Canh kept these in a suitcase reserved for special documents hidden in his bedroom closet. The money was for the rent on the family's house.
Officers found a nine-millimeter Beretta semiautomatic handgun and a BB gun at the residence. Cash in the amount of $950 was found on Scott. The stolen credit cards were found on Morris. The money was folded in $100 increments, just as Canh does.*fn3
II. GROUNDS RAISED/DEFENSES
In his Petition, Scott raises eleven enumerated grounds: (1) a violation of his right against self-incrimination under the Fifth Amendment; (2) a denial of transcripts in violation of his right to present a defense; (3) insufficiency of the evidence to support the personal use of a firearm allegation, Cal. Penal Code § 12022.53(b); (4) prosecutorial misconduct and overreaching; (5) insufficiency of the evidence to convict Scott on two of the robbery counts; (6) application of Penal Code §§ 654 and 664 violated the Due Process and Equal Protection Clauses; (7) ineffective assistance of trial counsel; (8) the pretrial and trial judges collectively abridged Scott's rights under the Fifth, Sixth, and Fourteenth Amendments; (9) the imposition of restitution was established without a hearing; (10) ineffective assistance of appellate counsel; and (11) the failure to sever his trial from that of his co-defendants denied Scott his rights under the Fifth and Fourteenth Amendments. Respondent contends that Scott's first, third, fourth, sixth, seventh, eighth, ninth, tenth, and eleventh grounds are all procedurally barred. Respondent does not assert any other affirmative defense.*fn4
Under the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"), 28 U.S.C. § 2254(d), this Court cannot grant relief unless the decision of the state court was "contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States" at the time the state court renders its decision or "was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding."*fn5 The Supreme Court has explained that "clearly established Federal law" in § 2254(d)(1) "refers to the holdings, as opposed to the dicta, of [the Supreme Court] as of the time of the relevant state-court decision."*fn6 The holding must also be intended to be binding upon the states; that is, the decision must be based upon constitutional grounds, not on the supervisory power of the Supreme Court over federal courts.*fn7 Thus, where holdings of the Supreme Court regarding the issue presented on habeas review are lacking, "it cannot be said that the state court 'unreasonabl[y] appli[ed] clearly established Federal law.'"*fn8 When a claim falls under the "unreasonable application" prong, a state court's application of Supreme Court precedent must be "objectively unreasonable," not just "incorrect or erroneous."*fn9 The Supreme Court has made clear that the objectively unreasonable standard is "a substantially higher threshold" than simply believing that the state-court determination was incorrect.*fn10 "[A]bsent a specific constitutional violation, federal habeas corpus review of trial error is limited to whether the error 'so infected the trial with unfairness as to make the resulting conviction a denial of due process.'"*fn11 In a federal habeas proceeding, the standard under which this Court must assess the prejudicial impact of constitutional error in a state court criminal trial is whether the error had a substantial and injurious effect or influence in determining the outcome.*fn12 Because state court judgments of conviction and sentence carry a presumption of finality and legality, the petitioner has the burden of showing by a preponderance of the evidence that he or she merits habeas relief.*fn13
The Supreme Court recently underscored the magnitude of the deference required: As amended by AEDPA, § 2254(d) stops short of imposing a complete bar on federal court relitigation of claims already rejected in state proceedings. Cf. Felker v. Turpin, 518 U.S. 651, 664, 116 S.Ct. 2333, 135 L.Ed.2d 827 (1996) (discussing AEDPA's "modified res judicata rule" under § 2244). It preserves authority to issue the writ in cases where there is no possibility fairminded jurists could disagree that the state court's decision conflicts with this Court's precedents. It goes no farther. Section 2254(d) reflects the view that habeas corpus is a "guard against extreme malfunctions in the state criminal justice systems," not a substitute for ordinary error correction through appeal. Jackson v. Virginia, 443 U.S. 307, 332, n.5, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979) (Stevens, J., concurring in judgment). As a condition for obtaining habeas corpus from a federal court, a state prisoner must show that the state court's ruling on the claim being presented in federal court was so lacking in justification that there was an error well understood and comprehended in existing law beyond any possibility for fairminded disagreement.*fn14
In applying this standard, this Court reviews the "last reasoned decision" by the state court.*fn15 State appellate court decisions that summarily affirm a lower court's opinion without explanation are presumed to have adopted the reasoning of the lower court.*fn16 This Court gives the presumed decision of the state court the same AEDPA deference that it would give a reasoned decision of the state court.*fn17
Under California's unique habeas procedure, a prisoner who is denied habeas relief in the superior court files a new original petition for relief in the court of appeal. If denied relief by the court of appeal, the defendant has the option of either filing a new original petition for habeas relief or a petition for review of the court of appeal's denial in the California Supreme Court.*fn18
This is considered as the functional equivalent of the appeal process.*fn19 Under AEDPA, the state court's findings of fact are presumed to be correct unless the petitioner rebuts this presumption by clear and convincing evidence.*fn20 This presumption applies to state-trial courts and appellate courts alike.*fn21
Initially this Court notes that on direct appeal Scott raised only his insufficiency of the evidence claim to support two of the robbery counts claim (ground five). All other claims, to the extent they were raised in the state courts, were raised in Scott's habeas petitions filed with the Superior Court, the California Court of Appeal, and the California Supreme Court. In addressing the Petition, this Court will address in order: (1) the request for an evidentiary hearing; (2) the procedural bar defense; and (3) the remaining claims on the merits.
The Petition in this case encompasses 155 pages. This Court notes, as did Respondent, that under each ground Scott includes a myriad of claims containing a mixture of conclusory and factual statements, which renders the Petition disorganized, confusing, and difficult to follow. It appears that, for the most part, although he presents them in a different order, Scott presents his claims on the same legal and factual bases as he did in the state courts. In some instances, however, Scott does clearly present his claim in this Court on a different legal and/or factual footing than he presented the claim in the state courts. This Court may consider only those claims that have been fairly presented to the state courts.*fn22
In order to exhaust a claim, a petitioner must "fairly present" to the
state supreme court both the legal and factual basis for the
claim.*fn23 "[T]he petitioner must . . . provide the
state court with the operative facts, that is, 'all of the facts
necessary to give application to the constitutional principle upon
which [the petitioner] relies.'"*fn24 A petitioner may
not fundamentally alter the
legal claim already considered by the state courts.*fn25
In the Ninth Circuit, a petitioner must make the federal
basis of the claim explicit either by referencing specific provisions
of the federal Constitution or statutes, or citing to federal case
law.*fn26 Mere similarity of claims between a state
law claim and a federal law claim is insufficient for exhaustion
purposes.*fn27 In order to present the substance of a
claim to a state court, the petitioner must reference a specific
federal constitutional provision as well as a statement of facts that
entitle the petitioner to relief.*fn28 A
mere appeal to a broad constitutional guarantee, e.g., due process, is
insufficient to present the substance of a constitutional claim to the
state courts.*fn29 A petitioner who cites one clause
of a constitutional amendment does not exhaust a claim under a
different clause of the same constitutional amendment.*fn30
In appropriate circumstances this Court may raise the failure
to properly exhaust claims sua sponte, provided nothing in the record
suggests that the state either strategically withheld the defense or
chose to relinquish it.*fn31 This case presents a
situation where it is appropriate to raise the failure to exhaust
available state-court remedies sua sponte.
Therefore, this Court will consider claims only to the extent that those claims were first presented to the state courts on the same or substantially the same constitutional theories and facts. This Court will not compare the 155 pages of the Petition in this Court with the 144 pages of the habeas petition filed in the California Supreme Court to determine if there are some additional facts or theories presented in this Court that would warrant granting relief. This Court will decide the case on the facts and legal theories presented to the state courts.
Scott has requested an evidentiary hearing. Ordinarily, a federal habeas proceeding is decided on the complete state-court record and a federal evidentiary hearing is required only if the trier of fact in the state proceeding has not developed the relevant facts after a full hearing.*fn32
It does not appear that Scott was afforded an evidentiary hearing in
any state court, and no decision of a California Court addresses the
request. Scott did include in the captions of his habeas petitions in
the state courts the statement "Evidentiary Hearing Requested."
Nowhere in his petitions to the state courts, however, does Scott
identify what evidence might be adduced in an evidentiary hearing,
what those facts might prove, or even what factual issues are in
dispute. His request for an evidentiary hearing before this Court
suffers from the same problem. Under both California and Federal
procedural rules an evidentiary hearing is not required in a
proceeding in the absence of any disputed objective facts.*fn33
Scott's request for an evidentiary hearing is
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."*fn34 This Court may not reach the merits of procedurally defaulted claims, that is, claims "in which the petitioner failed to follow applicable state procedural rules in raising the claims . . . ."*fn35 Procedural default does not preclude federal habeas review unless the last state court rendering judgment in a case clearly and expressly states that its judgment rests on a state procedural bar.*fn36 "[I]n order to constitute adequate and independent grounds sufficient to support a finding of procedural default, a state rule must be clear, consistently applied, and well established at the time of the petitioner's purported default."*fn37 A discretionary state procedural rule can be firmly established and regularly followed, so as to bar federal habeas review, even if the appropriate exercise of discretion may permit consideration of a federal claim in some cases but not others.*fn38
To the extent that Scott's claims were defaulted in state court on an adequate and independent state ground, they will not be considered in federal habeas proceedings unless Scott can demonstrate cause for the default and actual prejudice.*fn39 To prove a fundamental miscarriage of justice, Scott must show that a constitutional violation probably resulted in his conviction despite his actual innocence.*fn40 Although at the gateway stage the petitioner need not establish his innocence as an "absolute certainty," Scott must demonstrate that more likely than not, no reasonable juror could find him guilty beyond a reasonable doubt.*fn41
If a petitioner has procedurally defaulted on a claim, a federal court may nonetheless consider the claim if he shows: (1) good cause for his failure to exhaust the claim; and (2) prejudice from the purported constitutional violation; or (3) demonstrates that not hearing the claim would result in a "fundamental miscarriage of justice." Coleman, 501 U.S. at 750, 111 S.Ct. 2546; Sawyer v. Whitley, 505 U.S. 333, 339--40, 112 S.Ct. 2514, 120 L.Ed.2d 269 (1992). An objective factor outside of a petitioner's control (e.g., ineffective assistance of counsel or a basis for the claim that was previously unavailable) could constitute cause. Murray v. Carrier, 477 U.S. 478, 488, 106 S.Ct. 2639, 91 L.Ed.2d 397 (1986); McCleskey v. Zant, 499 U.S. 467, 497, 111 S.Ct. 1454, 113 L.Ed.2d 517 (1991). The petitioner can meet the prejudice prong if he demonstrates "that the errors . . . worked to his actual and substantial disadvantage, infecting his entire [proceeding] with errors of constitutional dimension." White v. Lewis, 874 F.2d 599, 603 (9th Cir.1989) (citing United States v. Frady, 456 U.S. 152, 170, 102 S.Ct. 1584, 71 L.Ed.2d 816 (1982)). A petitioner can demonstrate a fundamental miscarriage of justice by "establish[ing] that under the probative evidence he has a colorable claim of factual innocence." Sawyer, 505 U.S. at 339, 112 S.Ct. 2514 (quotation marks omitted).*fn42
Respondent raises the procedural bar defense to those claims that were presented in Scott's state habeas petitions. Respondent provides a comprehensive review of the California law with respect to habeas proceedings. Unfortunately, most of the law discussed by Respondent is inapplicable to this case for the simple reason that the Sacramento County Superior Court, the last reasoned state-court decision, did not expressly rely on those grounds. Accordingly, this Court will address procedural bar solely with respect to those grounds expressly relied upon by the Superior Court.
It is firmly established under California law that "habeas corpus will not lie as a substitute for appeal . . . nor as a second appeal."*fn43 Contentions that could have been raised during direct appeal, but were not, generally cannot be renewed in a petition for habeas corpus.*fn44 As discussed further below, the Superior Court expressly relied upon this ground in rejecting the claim Scott makes in his third ground.
As to the other claims presented in the state habeas petition, the Superior Court simply stated that those claims were barred by "Robbins/Clark" without further citation,*fn45 explanation, or analysis. The reference to Robbins and Clark is generally considered as noting that the petition is untimely,*fn46 and is an adequate and independent state procedural ground.*fn47 That, however, does not necessarily control here. "A procedural default based upon an ambiguous order that does not clearly rest on independent and adequate state grounds is not sufficient to preclude federal collateral review."*fn48 Nowhere in the decision does the Superior Court discuss the timeliness of Scott's habeas petition. Here the state habeas petition was filed less than two and a half years after the trial and less than six months after the California Supreme Court denied review on direct appeal. The response contains a glaring omission, i.e., that the delay in bringing his state habeas petition was somehow unreasonable under California law. Indeed, taken in context, it appears that the Superior Court mis-spoke, intending to cite Harris/Dixon (failure to raise a claim on appeal) instead of untimeliness under Robbins/Clark. Given the ambiguity in the decision of the Superior Court, this Court declines to find that to the extent the Superior Court cited "Robbins/Clark" as a basis for denying relief, that it constitutes a procedural bar to review by this Court in a federal habeas proceeding. Therefore, Respondent's procedural bar defense is rejected as to the first, second, fourth, sixth, seventh, eighth, ninth, tenth, and eleventh grounds.
Ground 3: Insufficiency of the Evidence (Personal Use of a Firearm) Scott argues that the use of a firearm allegation was not proven beyond a reasonable doubt. The Superior Court rejected Scott's arguments, holding: [Scott] first claims that the Penal Code § 12022.53(b) firearm allegations were not proven true beyond a reasonable doubt because the prosecutor in closing argument confused the jury by arguing that [Scott] possessed a handgun the minute he walked through the door regardless of whether he actually used a firearm later, which he very well may have done, and in other argument made in closing by the prosecutor.
The claim could have been but was not raised on appeal, thus is procedurally barred on state habeas corpus (In re Dixon (1953) 41 Cal.2d 756, reaffirmed in In re Harris (1993) 5 Cal. 4th 813, ...