The opinion of the court was delivered by: James K. Singleton, Jr. United States District Judge
Jeffrey Nathan Coss, a California probationer appearing pro se, filed a Petition for Habeas Corpus Relief under 28 U.S.C. § 2254. Coss is currently on probation in the custody of the California Department of Corrections and Rehabilitation. Respondent has answered, and Coss has replied. At Docket No. 20 Coss has filed a motion to consolidate this case with Coss v. Placer County Superior Court, No. 2:11-cv-00966-GEB-KJM.
I. BACKGROUND/PRIOR PROCEEDINGS
Coss was charged in an Amended Felony Complaint with Arson of an Inhabited Structure or Property (Penal Code § 451(b)),*fn1 a serious felony (Penal Code § 1192.7(c)(14)), with a special allegation that Coss proximately caused the multiple structures to burn in a single act of arson (Penal Code § 451.1(a)(4)) arising out of an incident that occurred on September 24, 2009. Coss, represented by counsel, entered a plea of no contest to a charge of arson (Penal Code § 451(b)), and admitted to a violation of probation imposed in a prior conviction. On January 27, 2010, the Placer County Superior Court sentenced Coss to a four-year term of probation, to be served consecutive to the earlier term of probation. Coss did not appeal his conviction or sentence. On August 19, 2010, Coss, appearing through counsel, moved in the Placer County Superior Court to withdraw his plea, which motion was denied as untimely on October 4, 2010. On November 3, 2010, Coss, appearing through counsel, filed a petition for habeas relief in the Placer County Superior Court, which was denied in an unreported reasoned decision on November 8, 2010. Coss, appearing through the same counsel, then filed a second petition for habeas relief in the Placer County Superior Court on December 30, 2010, which was also denied in an unreported reasoned decision on January 31, 2011. On February 16, 2011, appearing pro se, Coss filed a petition for habeas relief in the California Supreme Court. The California Supreme Court summarily denied relief without opinion or citation to authority on March 30, 2011. Coss timely filed his Petition for relief in this Court on May 13, 2011.
The factual basis underlying Coss's crime is well known to the parties and is not necessary to a determination of the issues before this Court. Accordingly, those facts are not recited here.
II. GROUNDS RAISED/DEFENSES
In his Petition Coss raises three grounds: (1) ineffective assistance of counsel; (2) that he was denied the statutory right to change his plea within six months of entry; and (3) that he was denied access to exculpatory evidence prior to trial. Respondent contends that Coss's second and third grounds are unexhausted. Respondent asserts no other affirmative defenses.
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."*fn2 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."*fn3 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.*fn4
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.'"*fn5 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."*fn6 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.*fn7 "[A]bsent a specific
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.'"*fn8
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.*fn9
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.*fn10
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.*fn11
In applying this standard, this Court reviews the "last reasoned decision" by the state court.*fn12 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.*fn13 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.*fn14
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.*fn15
This is considered as the functional equivalent of the appeal pro cess.*fn16
Coss has moved to consolidate this case with a prior habeas petition involving an earlier conviction and other relief related thereto. A review of the record in the prior case, of which this Court takes judicial notice,*fn17 shows that it was dismissed on October 1, 2009, for failure to exhaust available state-court remedies.*fn18 Because the prior case that Coss wishes this case to be consolidate with is closed and Coss has not made a proper motion in that case to reopen it, this Court declines to order the cases consolidated. Accordingly, the motion to consolidate and other related relief at Docket No. 20 is DENIED.
Respondent contends that because Coss presented those claims to the
state courts solely on the basis of state law, he has not properly
exhausted is state-court remedies. This Court may not consider claims
that have not been fairly presented to the state courts.*fn19
Exhaustion of state remedies requires the petitioner to
fairly present federal claims to the state courts in order to give the
state the opportunity to pass upon and correct alleged violations of
its prisoners' federal rights.*fn20 A petitioner
fairly presents a claim to the state court for purposes of satisfying
the exhaustion requirement if he presents the claim: (1) to the proper
forum, (2) through the proper
vehicle, and (3) by providing the proper factual and legal basis for
the claim.*fn21 A petitioner must alert the state
courts to the fact that he is asserting a federal claim in order to
fairly present the legal basis of the claim.*fn22
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.*fn23 Mere similarity of claims between a state law claim and a federal law claim is insufficient for exhaustion purposes.*fn24 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.*fn25 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.*fn26
Ground 2: Denial of Change of Plea
After he had entered his plea, Coss moved to withdraw the plea under Penal Code § 1018, which the Placer County Superior Court denied as untimely. In both his petitions for habeas relief in the Placer County Superior Court and the California Supreme Court Coss affirmatively pleaded that the denial of his motion to withdraw his guilty plea under Penal Code § 1018 as untimely was in error. Coss did not raise any federal constitutional ground. To the extent that Coss alleges a constitutional basis for relief before this Court, it appears to be that he was denied the effective assistance of counsel with respect to his insanity claim, an issue that is addressed in his first ground.
Even where a federal petitioner has not exhausted his state-court
remedies, however, this Court may nonetheless deny a habeas claim on
the merits, the failure to exhaust notwithstanding,*fn27
when it is clear that the petition does not raise a colorable
federal claim.*fn28 In this case, it is evident that
Coss does not present even a colorable federal claim in his second
ground. Because Coss presented his claim to the Placer County Superior
Court, which denied relief solely on state-law grounds, it is beyond
the purview of this Court in this proceeding.*fn29
Accordingly, Coss is not entitled to relief under his second ground.
Ground 3: Denial of Access to Exculpatory Evidence At the restitution hearing approximately six months after sentence was imposed, the trial court disclosed that it had received documentation from the California Department of Mental Health dated June 27, 2009, three days after the crime was committed, indicating that Coss was committed to the Placer County Psychiatry Mental Facility as a danger to himself and gravely disabled as defined in California Welfare and Institutions Code § 5008(h)(1), (l).*fn30 Coss contends that the failure to disclose this information prior to that time constituted a Brady violation.*fn31 Coss raised this issue for the first time in his petition for habeas relief before the California Supreme Court claiming he was "denied right to exculpatory evidence." As noted above, the California Supreme Court summarily denied relief.
In the Ninth Circuit, normally 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.*fn32 Here, although Coss did not strictly meet these requirements, he did specifically identify a violation of a federal constitutional right in terms sufficiently specific to call to mind that specific constitutional right,*fn33 i.e. the right to exculpatory evidence under Brady. Giving Coss, a prisoner appearing pro se, the benefit of liberal construction,*fn34 this Court declines to deny Coss relief on an ambiguous procedural deficiency. Moreover, even if this claim was unexhausted, as discussed further below, it is utterly lacking in merit and may be denied on that basis.*fn35
Brady, and its progeny, require the prosecution to disclose material information that is "favorable to the accused, either because it is exculpatory, or because it is impeaching."*fn36 The first hurdle that Coss fails to clear is that there is no evidence that the "evidence" originated from the prosecution or even that the prosecution was aware of its existence. The second hurdle that Coss fails to surmount is that he was certainly aware of the fact of his mental condition and his hospitalization shortly after he set the fire to his residence. Finally, a Brady violation occurs only where there is a "reasonable probability" that a different verdict would have resulted from disclosure of the information that the defendant claims was suppressed.*fn37 That is, "a constitutional error occurs, and the conviction must be reversed, only if the evidence is material in the sense that its suppression undermines confidence in the outcome of the trial."*fn38 Because Coss entered a guilty plea and the "evidence" was in the possession of the trial court and, as discussed further below, it is inconceivable that revelation of this evidence would have resulted in whether or not counsel recommended accepting the plea bargain, there is no possible way that the outcome could have differed. Coss is not entitled to relief under his third ground.
Ground 1: Ineffective Assistance of Counsel
In his first ground Coss contends that his counsel was ineffective in that counsel failed to:
(1) inform him of the potential insanity defense; (2) interview potential defense witnesses; and (3) advise him that he would be held liable for restitution for damages to the neighbor's house as well as to his insurance company for damages to his own property. Coss raised his ...