United States District Court, S.D. California
ORDER:
(1) ADOPTING AS MODIFIED THE FINDINGS AND CONCLUSIONS OF
UNITED STATES MAGISTRATE JUDGE; (2) DENYING PETITION FOR A
WRIT OF HABEAS CORPUS; AND (3) GRANTING PETITIONER’S
MOTION FOR A COA AND ISSUING A COA LIMITED TO CLAIM 1 OF THE
PETITION
BARRY
TED MOSKOWITZ United States District Judge.
Eddie
Lopez Montanez (hereinafter “Petitioner”), is a
California prisoner proceeding pro se and in forma pauperis
with a Petition for a Writ of Habeas Corpus filed pursuant to
28 U.S.C. § 2254, challenging his conviction for first
degree murder, for which he was sentenced to 26 years-to-life
in state prison. (ECF No. 1.) He alleges that his federal
Constitutional rights were violated because the jury was not
instructed that the prosecution bore the burden of proving he
did not act under duress (Claim 1), the jury was erroneously
instructed on the theory of aiding and abetting, and returned
inconsistent verdicts (Claim 2), he received ineffective
assistance of trial counsel (Claim 3) and appellate counsel
(Claim 4), and by the cumulative effect of the errors (Claim
5). (Pet. at 6-10, 30-59.[2]) Respondent has filed an Answer
contending that Claim 1 is not cognizable on federal habeas,
Claim 2 is procedurally defaulted, the adjudication of Claims
3 and 4 by the state court is objectively reasonable, and
Claim 5 is unexhausted but without merit. (ECF No. 7.)
Petitioner has filed a Traverse arguing, inter alia,
that he can demonstrate cause and prejudice for any default
of Claim 2. (ECF No. 19.)
United
States Magistrate Judge Barbara L. Major has filed a Report
and Recommendation (“R&R”) which recommends
the Petition be denied. (ECF No. 24.) The Magistrate Judge
found that: (1) Claim 1 is cognizable on federal habeas, the
state court rejection of the claim is neither contrary to,
nor involves an unreasonable application of, clearly
established federal law, and the error is harmless; (2)
Respondent failed to carry the burden of alleging Claim 2 is
procedurally defaulted, but the claim fails under de novo
review; (3) the state court rejection of Claims 3 and 4 is
neither contrary to, nor involves an unreasonable application
of, clearly established federal law; and (4) even if Claim 5
was not properly presented to the state court, it is without
merit. (R&R at 10-40.) Petitioner has filed Objections to
the R&R, and as well as a Motion for a Certificate of
Appealability. (ECF Nos. 32-33.)
The
Court has reviewed the R&R and the Objections thereto
pursuant to 28 U.S.C. § 636(b)(1), which provides that:
“A judge of the court shall make a de novo
determination of those portions of the report or specified
proposed findings or recommendations to which objection is
made. 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 adopts the Magistrate Judge’s findings and
conclusions in all respects as to all claims with the
exception of the procedural default aspect of Claim 2. That
claim was presented to the state court on collateral review
in the first instance, rather than on direct appeal, and the
state court denied the claim with a citation to In re
Dixon, 41 Cal.2d 756, 759 (1953), which provides that
claims which could have been raised on direct appeal but are
not, cannot be later raised on collateral review. (R&R at
22.) The R&R correctly noted that Respondent has the
initial burden of pleading as an affirmative defense that
Petitioner’s failure to satisfy a state procedural rule
forecloses federal review. Bennett v. Mueller, 322
F.3d 573, 586 (9th Cir. 2003). The R&R found that
Respondent had not carried that burden, and the claim was
therefore not procedurally defaulted, but that it fails under
a de novo review. (R&R at 24-32.) The Court adopts as
modified those findings and conclusions as follows.
The
Court finds that Respondent has satisfied the
Bennett burden by stating in the Answer:
“Ground two, alleging that the trial court erred in its
instruction on aiding and abetting and in its acceptance of
inconsistent verdicts, is procedurally barred. The state
court denied the claim because it could have been, but was
not, raised on direct appeal.” (Ans. at 2.) After the
R&R was issued and the objections period closed, the
United States Supreme Court held that California’s
Dixon rule is firmly established and regularly
followed. Johnson v. Lee, 578 U.S. ___, 2016 WL
3041051 at *2-4 (May 31, 2016). Accordingly, Claim 2 is
procedurally defaulted.
Petitioner
has argued throughout these proceedings that, if necessary,
he can show cause and prejudice to excuse the default.
(Traverse at 7-11; Objections at 20.) Because the Court
agrees with and adopts the findings and conclusions of the
Magistrate Judge that Claim 2 fails under a de novo review
(R&R at 25-32), judicial economy counsels in favor of
declining to address whether Petitioner can demonstrate cause
and prejudice to excuse the default. See Franklin v.
Johnson, 290 F.3d 1223, 1232 (9th Cir. 2002)
(“Procedural bar issues are not infrequently more
complex than the merits issues presented by the appeal, so it
may well make sense in some instances to proceed to the
merits if the result will be the same.”), citing
Lambrix v. Singletary, 520 U.S. 518, 525 (1997)
(“We do not mean to suggest that the procedural-bar
issue must invariably be resolved first; only that it
ordinarily should be.”) Accordingly, with that
modification, the Court ADOPTS the findings and conclusions
of the Magistrate Judge as to all claims in the Petition.
Finally,
Petitioner has filed a Motion for a Certificate of
Appealability. (ECF No. 33.) Mindful of the “relatively
low” threshold for granting a Certificate of
Appealability, Jennings v. Woodford, 290 F.3d 1006,
1010 (9th Cir. 2002), that “the petitioner need not
show that he should prevail on the merits, ”
Lambright v. Stewart, 220 F.3d 1022, 1025 (9th Cir.
2000), but may be entitled to a certificate when the
“questions are adequate to deserve encouragement to
proceed further.” Barefoot v. Estelle, 463
U.S. 880, 893 n. 4 (1983) (citation omitted), superseded
on other grounds by 28 U.S.C. § 2253(c)(2), the
Court finds a Certificate of Appealability is appropriate for
Claim 1 only.
CONCLUSION
AND ORDER
For the
reasons set forth above, the Court ADOPTS AS MODIFIED the
findings and conclusions of the Magistrate Judge [ECF No.
24], DENIES the Petition for a writ of habeas corpus [ECF No.
1], GRANTS Petitioner’s Motion for a COA [ECF No. 33],
and ISSUES a Certificate of Appeal ability limited to Claim 1
of the Petition.
IT IS
SO ORDERED.
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Notes:
[1] The Clerk of Court is directed to
amend the docket to reflect that Scott Kernan, the Secretary
of the California Department of Corrections and
Rehabilitation, has been substituted as Respondent in place
of his predecessor and former Respondent Jeffrey Beard.
See Fed.R.Civ.P. 25(d) (requiring ...