The opinion of the court was delivered by: James K. Singleton, Jr. United States District Judge
I. BACKGROUND/PRIOR PROCEEDINGS
Presently before this Court is Chico Romero Watts' ("Watts") Amended Petition for a writ of habeas corpus under 28 U.S.C. § 2254, filed in March 2012. In April 2007, Watts was convicted by a Siskiyou County jury for various firearm offenses in two cases, and another jury in the third case in June 2007 found him guilty of misdemeanor battery, inflicting corporal injury on a cohabitant, assault by means of force likely to cause great bodily injury, false imprisonment by violence, and battery. In July 2007, Watts was sentenced by the trial court on the various charges to a total term of twenty-seven years and four months.
The California Court of Appeal affirmed the judgment in April 2009, and the California Supreme Court denied review in August 2009. After initially filing a habeas petition in this Court in February 2010, Watts' exhausted claims were stayed and held in abeyance while he exhausted his state-court remedies. Doc No. 17. In February 2012, Watts filed a notice that his claims were exhausted, and the Magistrate Judge ordered Watts to file an Amended Petition. Doc. No. 28, 29.
In March 2012, Watts filed an Amended Petition, making the following six claims: (1) that he was unconstitutionally shackled during trial; (2) that there was insufficient evidence to support various sentencing enhancements; (3) that the trial court improperly denied his Faretta motion for self-representation; (4) that the trial court improperly limited his custodial credits; (5) that the trial court erred by giving an inadequate unanimity jury instruction on the assault and battery counts; and (6) that the prosecutor committed misconduct. Respondent claims that Watts' second, fourth, fifth and sixth claims are procedurally defaulted.
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," § 2254(d)(1), or "was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding," § 2254(d)(2). A state-court decision is "contrary" to federal law "if the state court applies a rule that contradicts the governing law set forth" in controlling, Supreme Court authority or "if the state court confronts a set of facts that are materially indistinguishable from a decision" of the Supreme Court, but nevertheless arrives at a different result. Williams v. Taylor, 529 U.S. 362, 405-06 (2000).
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." Williams, 529 U.S. at 412. 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. Early v. Packer, 537 U.S. 3, 10 (2002). 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.'" Carey v. Musladin, 549 U.S. 70, 77 (2006) (citation omitted). In applying these standards in habeas review, this Court reviews the "last reasoned decision" by the state court. Robinson v. Ignacio, 360 F.3d 1044, 1055 (9th Cir. 2004) (citing Avila v. Galaza, 297 F.3d 911, 918 (9th Cir. 2002)). 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. 28 U.S.C. § 2254(e)(1); Miller-El v. Cockrell, 537 U.S. 322, 340 (2003).
Respondent argues that Watts' second, fourth, fifth, and sixth claims have been procedurally defaulted.
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). 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 . . . ." Sawyer v. Whitley, 505 U.S. 333, 338 (1992). 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. Teague v. Lane, 489 U.S. 288, 298-99 (1989) (citing Harris, 489 U.S. at 262-63).
"[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." Morales v. Calderon, 85 F.3d 1387, 1393 (9th Cir. 1996) (internal quotation marks omitted); see also Park v. California, 202 F.3d 1146, 1152 (9th Cir. 2000) ("For a state procedural rule to be 'independent,' the state law ground for decision must not be 'interwoven with federal law.'" (citing Michigan v. Long, 463 U.S. 1032, 1040-41 (1983); Harris, 489 U.S. at 265)). The fact that the state court also ruled on the merits in the alternative does not vitiate a procedural bar defense. Comer v. Schriro, 480 F.3d 960, 964 n.6 (9th Cir. 2007) (citing Harris,489 U.S. at 264 n.10).
If a petitioner's claim is defaulted in state court on an adequate and independent state ground, it will not be considered in a federal habeas proceeding unless the petitioner can demonstrate cause for the default and actual prejudice, i.e., a miscarriage of justice. Coleman, 501 U.S. at 729. To prove a fundamental miscarriage of justice, a petitioner must show that a constitutional violation probably resulted in his conviction despite his actual innocence. See Schlup v. Delo, 513 U.S. 298, 321-25 (1995) (linking miscarriages of justice to actual innocence); United States v. Olano, 507 U.S. 725, 736 (1993) ("In our collateral-review jurisprudence, the term 'miscarriage of justice' means that the defendant is actually innocent.").
1. Claims Two, Four, and Five
In his Traverse, Watts states that he wishes to withdraw his second, fourth, and fifth claims. Doc. No. 39 at 8, 15. Accordingly, this Court will not address his second (sufficiency of the evidence), fourth (improper limitation of custodial credits), or fifth (inadequate jury instructions) claims. Watts is not entitled to relief on those claims.
In his sixth claim, Watts argues that the prosecutor committed multiple acts of prejudicial misconduct. Respondent argues that although Watts presented this claim in his state-habeas petition to the California Supreme Court, Lodged Doc. 16, at 30-57, he never presented it on direct appeal to the California Supreme Court, see Lodged Doc. 14. The California Supreme Court denied this claim on habeas review, citing In re Waltreus, 62 Cal.2d 218 (1965). Lodged Doc. 17. Respondent argues therefore that the citation to Waltreus under these circumstances amounts to a procedural default and thus bars this Court's review of the claim, relying on Forrest v. Vasquez, 75 F.3d 562, 563 (9th Cir. 1996).
Respondent's position is essentially that a denial of a claim under Waltreus, a rule which provides that "any issue that was actually raised and rejected on appeal cannot be renewed in a petition for a writ of habeas corp," Forrest v. Vasquez, 75 F.3d 562, 563 (9th Cir. 1996) (internal quotation marks and citation omitted), results in a procedural default thus barring this Court from reaching the merits of this claim. Whitley, 505 U.S. at 338; Doc. No. 37 at 39, 48-49, 51-52, 60-61. However, the Ninth Circuit has stated that a denial under Waltreus "is neither a ruling of procedural default nor a ruling on the merits," but rather "merely bars relitigation in state habeas proceedings of claims already litigated on direct appeal." Carter v. Giurbino, 385 F.3d 1194, 1198 (9th Cir. 2004).
Indeed, "a citation to Waltreus by a state court, standing alone, is neither a ruling on the merits, nor a denial on procedural grounds, and, as such, has no bearing on a California Prisoner's ability to raise a constitutional claim on Federal habeas review." Medina v. Sandor, 2012 WL 3689906, at * 4-6 (C.D. Cal. June 14, 2012) (citing Ylst v. Nunnemaker, 501 U.S. 797, 805 (1991)). In a situation such as this one, where Respondent "asserts that a petition brought by a California state prisoner is procedurally barred by a citation to Waltreus, a court must 'look through' that citation to the last reasoned state court decision in order to determinate whether the citation to Waltreus was based on an earlier procedural bar." Id. (citing Ylst, 501 U.S. at 805-806).
Respondent argues that in Forrest v. Vasquez, similar to this case, the petitioner Forrest failed to timely raise his library access claim on direct review to the California Supreme Court. 75 F.3d at 563-64. Forrest later filed for relief from default to the California Supreme Court on direct review, but the California Supreme Court denied his application for relief from default since Forrest had failed to follow Rule 28(b) of the California Rules of Court (now Rule 8.500(e)), which requires a petition for review on direct appeal to the California Supreme Court to be filed within ten days after the Court of Appeal decision becomes final. Id. at ...