United States District Court, N.D. California
ORDER GRANTING RESPONDENT'S MOTION TO DISMISS; DENYING CERTIFICATE OF APPEALABILITY
(Docket No. 62.)
RONALD M. WHYTE, District Judge.
Petitioner, a California prisoner proceeding pro se, filed a second amended petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. On July 23, 2014, respondent filed a motion to dismiss the second amended petition as untimely, or in the alternative, to dismiss the claims as procedurally barred. Although given an opportunity, petitioner has not filed an opposition. After careful consideration of the pleadings, the court GRANTS respondent's motion to dismiss the petition based on respondent's argument that the claims are procedurally barred.
Petitioner has had a long history with this court. He filed this action on July 8, 2004. On September 30, 2005, the court granted respondent's motion to dismiss the petition for failure to exhaust, and directed petitioner to file an amended petition within thirty days. (Docket No. 13.) Petitioner then filed an amended petition on November 2, 2005. (Docket No. 14.) Along with the amended petition, petitioner requested a stay and abeyance so that he could return to the state court to exhaust unexhausted claims. On September 27, 2006, the court denied petitioner's motion to stay as moot because petitioner's claims appeared to be fully exhausted, and granted petitioner an extension of time to file a second amended petition. (Docket No. 25.)
On December 29, 2006, petitioner filed a second amended petition. (Docket No. 30.) On May 22, 2007, the court issued an order to show cause why the second amended petition should not be granted. On July 23, 2007, respondent filed a motion to dismiss the second amended petition as untimely, procedurally barred, or unexhausted. On March 31, 2008, the court granted in part respondent's motion to dismiss and directed petitioner to elect how he would like to proceed. (Docket No. 41.) Petitioner requested the court stay and hold the case in abeyance, and on August 12, 2008, the court granted petitioner's motion. (Docket No. 47.)
Thereafter, on April 8, 2014, the court granted petitioner's motion to lift the stay. However, the court noted that petitioner otherwise failed to comply with the court's August 12, 2008 order informing petitioner that, in order for the court to consider any of petitioner's then unexhausted claims, petitioner must properly present those claims to the California Supreme Court within thirty days, and within thirty days of the California Supreme Court's decision, file an amended petition in this court setting forth his newly exhausted claims. Because petitioner failed to do so, the court dismissed petitioner's unexhausted claims, and ordered that the case proceed only with the exhausted claims, as presented in petitioner's second amended petition.
Thus, as grounds for federal habeas relief, petitioner's surviving claims are: (1) he was denied his right to due process because his current crimes of conviction are based upon the insufficient evidence of the uncorroborated testimony of accomplice Niyah Edwards, and (2) there was insufficient evidence to support his convictions.
Respondent has now filed a motion to dismiss as untimely, or in the alternative, as procedurally barred. Because the court agrees that the claims are procedurally barred, it will not address respondent's initial argument that the claims are untimely.
Respondent argues that petitioner's federal petition is procedurally barred because the California Supreme Court denied petitioner's federal claims with a citation to, inter alia, In re Lindley, 29 Cal. 2d 109 (1947). Petitioner's petition raises two claims: (1) petitioner was denied his right to due process because his current crimes of conviction are based upon the insufficient evidence of the uncorroborated testimony of accomplice Niyah Edwards, and (2) there was insufficient evidence to support his convictions.
"[F]ederal habeas courts generally may not review a state court's denial of a state prisoner's federal constitutional claim if the state court's decision rests on a state procedural rule that is independent of the federal question and adequate." Coleman v. Thompson, 501 U.S. 722, 722-23 (1991). The procedural default doctrine bars federal habeas review "unless the petitioner can demonstrate cause for the default and actual prejudice as a result of the alleged violation of federal law, or demonstrate that failure to consider the claims will result in a fundamental miscarriage of justice." Id. at 724.
In petitioner's first state habeas petition to the Superior Court, petitioner raised his two federal claims, as well as a claim of ineffective assistance of counsel. (Resp. MTD, Ex. 5.) The Superior Court issued an order denying the petition. (Id., Ex. 6.) In the order, the Superior Court stated:
II. Contentions in the Petition
Petitioner raises four claims of error. First, there is insufficient evidence to corroborate the testimony of Edwards pursuant to PC 1111, violating due process (14th Amendment). Second, there is insufficient evidence to sustain a conviction of attempted murder and personal use of a firearm. Third, there is insufficient evidence to sustain the conviction for kidnaping. And ...