United States District Court, N.D. California
ORDER GRANTING MOTION FOR RECONSIDERATION; VACATING ORDER; GRANTING IN PART AND DENYING IN PART MOTION TO DISMISS; FURTHER SCHEDULING ORDER
(Docket No. 32)
LUCY H. KOH, District Judge.
Petitioner, a state prisoner proceeding pro se, filed a writ of habeas corpus pursuant to 28 U.S.C. § 2254. After the court issued an order to show cause, the respondent filed a motion to dismiss, arguing that petitioner's claims were procedurally defaulted. The court denied the motion to dismiss. Respondent has filed a motion for leave to file a motion to reconsider. Petitioner has filed an opposition. For the reasons stated below, the motion to reconsider is GRANTED, the court VACATES the order denying respondent's motion to dismiss (doc. no. 31), and GRANTS in part and DENIES in part respondent's motion to dismiss.
On March 10, 2006, petitioner was sentenced to a term of 25 years to life in state prison after being convicted of first degree burglary and related charges. On October 5, 2007, petitioner filed an original state habeas petition in the California Supreme Court. On March 19, 2008, the California Supreme Court denied the petition. Petitioner filed unsuccessful appeals to the California Court of Appeal and the California Supreme Court.
On February 10, 2010, petitioner filed a federal habeas petition pursuant to 28 U.S.C. § 2254 in Thomas v. Kramer, No. 10-0591 LHK (N.D. Cal.). In that petition, petitioner raised the following claims: (1) trial counsel rendered ineffective assistance, (2) the prosecutor committed misconduct, and (3) appellate counsel rendered ineffective assistance. The court concluded that the petition was a mixed petition and directed petitioner to choose how he would like to proceed. Ultimately, because of a failure to prosecute, Thomas v. Kramer, No. 10-0591 LHK (N.D. Cal.), was dismissed without prejudice.
On June 22, 2011, petitioner filed another state habeas petition in the California Supreme Court. In his petition, petitioner raised the following claims: (1) the pre-trial identification procedure was improperly suggestive, and violated his right to due process; (2) trial counsel rendered ineffective assistance and had a conflict of interest when he told the jury that petitioner was guilty of burglary; (3) appellate counsel had a conflict of interest; and (4) the prosecutor committed misconduct during closing argument. On November 2, 2011, the California Supreme Court summarily denied petitioner's state habeas petition with a citation to In re Robbins, 18 Cal.4th 770, 780 (1998) (explaining state courts' untimeliness determination), and In re Clark, 5 Cal.4th 750, 767-69 (1993) (explaining the state rule against successive, piecemeal or repetitious claims).
Petitioner filed the underlying federal habeas petition on February 29, 2012. Petitioner raised the same claims in this federal petition as he did in his 2011 California Supreme Court petition. Respondent filed a motion to dismiss, arguing that California Supreme Court's summary denial containing the citations to Robbins and Clark barred federal review of the federal claims. The court denied respondent's motion, concluding that the citation to Clark was not an independent and adequate state bar, but the citation to Robbins was. The court further stated that because it was unclear which citation the California Supreme Court intended to apply to which claim(s), the procedural bar was inapplicable.
Respondent has filed a motion for reconsideration. Specifically, respondent urges the court to reconsider its ruling that the state court's order was ambiguous. Respondent states that this court could have resolved that "the Clark bar on successive petitions applied only to the two claims that had already been raised in a previous state habeas petition, i.e., ineffective assistance of trial counsel and prosecutorial misconduct." (Doc. No. 32 at 3.) Respondent further argues that, "the Robbins bar applied at least to the two non-successive claims of ineffective assistance of appellate counsel and suggestive identification." ( Id. )
Rule 60(b) of the Federal Rules of Civil Procedure provides for reconsideration where one or more of the following is shown: (1) mistake, inadvertence, surprise or excusable neglect; (2) newly discovered evidence that by due diligence could not have been discovered before the court's decision; (3) fraud by the adverse party; (4) voiding of the judgment; (5) satisfaction of the judgment; (6) any other reason justifying relief. See Fed.R.Civ.P. 60(b); School Dist. 1J v. ACandS Inc., 5 F.3d 1255, 1263 (9th Cir. 1993).
After reviewing the record, the court agrees that the denial of respondent's motion to dismiss was erroneous, and grants reconsideration under Rule 60(b)(6) for reasons slightly different from respondent's arguments. After initialing determining that the Clark citation could not bar the two claims previously presented, i.e., ineffective assistance of trial counsel and prosecutorial misconduct, the court did not continue its analysis to determine whether both Clark and Robbins could bar the remaining two claims, i.e., ineffective assistance of appellate counsel and suggestive identification procedures.
In Koerner v. Grigas, 328 F.3d 1039, 1051-52 (9th Cir. 2003), the Ninth Circuit left open the possibility that under some circumstances, a federal court may be able to resolve an ambiguous order. Here, upon reconsideration, the court concludes that, as applied to petitioner's Claims 1 and 3, i.e., the claims of ineffective assistance of appellate counsel and suggestive identification procedures, both the Robbins and Clark citations are procedural bars to federal habeas review.
In petitioner's 2007 state supreme court petition, petitioner raised the following two claims: (1) trial counsel rendered ineffective assistance, (2) the prosecutor committed misconduct. The California Supreme Court denied the petition without comment. Then, in 2011, petitioner filed another state supreme court petition, in which he raised the same two claims, and added: (1) the pre-trial identification procedure was improperly suggestive, and violated his right to due process, and (2) appellate counsel had a conflict of interest.
Petitioner's claims are barred from federal review only if the court determines that both Clark and Robbins are independent and adequate state bars against each claim. Washington v. Cambra, 208 F.3d 832, 833-34 (9th Cir. 2000). "This is so because the California Supreme Court invoked both rules ...