ORDER OVERRULING OBJECTIONS TO REPORT AND RECOMMENDATION; AND ORDER DENYING PETITION FOR WRIT OF HABEAS CORPUS
LARRY ALAN BURNS, District Judge.
Petitioner Andre Jamal Robinson, a prisoner in state custody, filed his petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254, identifying six bases for relief. This matter was referred to Magistrate Judge Cathy Ann Bencivengo for report and recommendation. Judge Bencivengo issued a lengthy and comprehensive report and recommendation (the "R&R"), to which Robinson has filed written objections.
A district court has jurisdiction to review a Magistrate Judge's report and recommendation on dispositive matters. Fed.R.Civ.P. 72(b). "The district judge must determine de novo any part of the magistrate judge's disposition that has been properly objected to." Id. "A judge of the court may accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate judge." 28 U.S.C. § 636(b)(1). The Court reviews de novo those portions of the R&R to which specific written objection is made. United States v. Reyna-Tapia, 328 F.3d 1114, 1121 (9th Cir. 2003) (en banc). "The statute makes it clear that the district judge must review the magistrate judge's findings and recommendations de novo if objection is made, but not otherwise." Id.
Procedural History and Claims
Robinson was convicted of first degree murder. The jury found he had used a firearm during the commission of the offense, and that he committed the murder while engaged in the commission of a rape. He was sentenced to life in prison without the possibility of parole. The details of the case against Robinson, and the procedural history of his efforts to obtain postconviction relief in state court are set forth in the R&R, and the Court ADOPTS this, and repeats it here only as necessary.
Robinson brings seven claims in his petition: 1) evidence used to convict him was obtained in violation of his Miranda rights and right to counsel; 2) ineffective assistance of trial counsel; 3) the government failed to admit evidence that was favorable to him at trial in violation of Brady v. Maryland, 373 U.S. 83 (1963); 4) his right to due process under the fifth and fourteenth constitutional amendments were violated when the court failed to instruct the jury on a lesser-included offense; 5) ineffective assistance of appellate counsel; 6) the imposition of an excessive fine violated his Eighth Amendment rights; and 7) he is actually innocent.
Claims 1, 3, 4, and 6
The R&R concluded claims 1, 3, 4, and 6 are procedurally defaulted. The state courts rejected these claims, citing People v. Duvall, 9 Cal.4th 464, 474-75 (1995) - and, with regard to claims 1 and 6, In re Dixon, 41 Cal.2d 756, 759 (1953). The last reasoned decision, denying Robinson's habeas petition, explained that Robinson could have, but did not raise claims 1 and 6 on direct appeal, and cites Dixon. It also explains that Robinson did not state a prima facie claim for relief, and cites Duvall. The R&R recommends treating failure to plead a prima facie case as an independent and adequate state-law basis for the decision.
Dixon sets forth a procedural bar. See Jackson v. Roe, 425 F.3d 654, 656 n.2 (9th Cir. 2005). Robinson objects that because he is a layman and didn't know he was supposed to raise claims 1 and 6 on direct appeal, this should not be held against him. But Robinson was represented by counsel on appeal, and parties are bound by the decisions of their lawyers about which arguments to make or which claims to raise. See New York v. Hill, 528 U.S. 110, 114-15 (2000). Claims 1 and 6 are therefore procedurally barred.
The two claims that were dismissed with a citation to Duvall only, and which are not also procedurally barred under Dixon, are claims 3 and 4, i.e., Robinson's Brady claim, and his claim that the trial court erred by failing to instruct the jury on a lesser-included offense.
The law governing the proper treatment of such a denial is not particularly clear. In the post-AEDPA era, the Ninth Circuit has treated a denial under Duvall for failure to adequately plead a claim as pointing to a failure to exhaust. See Sanchez v. Scribner, 428 Fed.Appx. 742, 742-743 (9th Cir. 2011). This appears consistent with Cullen v. Pinholster, 131 S.Ct. 1388 (2011), which emphasizes federal courts' role in reviewing a petitioner's claims as they were presented to state courts. In other words, a state prisoner must give state courts a full and fair opportunity to review his federal claims before he presents them to a federal court, see O'Sullivan v. Boerckel, 526 U.S. 838, 845 (1999), and a federal court should not treat a state court decision as unreasonable on the basis of allegations never pleaded or evidence it never had the chance to review. But after Pinholster, the Ninth Circuit has reviewed denials under Duvall for failure to plead a prima facie case under the reasonableness standard of § 2254(d)(1). See Cannedy v. Adams, 706 F.3d 1148, 1161 (9th Cir. 2013). And in any event, claims may be denied on the merits even if they are unexhausted. § 2254(b)(2).
With regard to claims 3 and 4, the Court will follow the example of the panel in Cannedy and consider whether the allegations supporting claims 3 ...