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Raygoza v. Holland

United States District Court, N.D. California

May 26, 2017

RICARDO C. RAYGOZA, Petitioner,
v.
KIM HOLLAND, Respondent.

          ORDER OF PARTIAL DISMISSAL AND REQUIRING CHOICE BY PETITIONER Docket No. 11

          EDWARD M. CHEN United States District Judge

         I. INTRODUCTION

         Ricardo C. Raygoza filed this pro se action seeking a writ of habeas corpus pursuant to 28 U.S.C. § 2254. Respondent has moved to dismiss three of the nine claims in the petition. Mr. Raygoza has opposed the motion. For the reasons discussed below, the Court dismisses Claim 7 (i.e., the Miranda claim) as procedurally defaulted, and dismisses Claims 8 and 9 (the ineffective-assistance-of-counsel claims related to the Miranda claim) as unexhausted. Mr. Raygoza will be required to choose how to deal with the problem of his unexhausted claims of ineffective assistance of counsel.

         II. BACKGROUND

         Following a jury trial in Monterey County Superior Court, Mr. Raygoza was convicted of six counts of committing lewd acts upon a child under 14 years old, two counts of committing lewd acts upon a 14- or 15-year-old child who was ten or more years younger than him, and two counts of annoying or molesting a child. The jury found true allegations that Mr. Raygoza committed the lewd acts against multiple victims. On August 2, 2012, Mr. Raygoza was sentenced to 32 years, 8 months to life in prison.

         Mr. Raygoza appealed. He presented the following issues on appeal: the prosecutor's amendment of the information violated his right to notice of the charges, two jury instructions improperly shifted the burden of proof, the court erred by admitting prior bad acts evidence, prosecutorial misconduct, and cumulative error. He did not argue on appeal that his Miranda rights were violated or that he had received ineffective assistance of counsel. The California Court of Appeal affirmed the judgment of conviction, and the California Supreme Court denied review in 2014.

         Mr. Raygoza later filed petitions for writ of habeas corpus in the state court. Mr. Raygoza filed a petition for writ of habeas corpus in the Monterey County Superior Court, in which he alleged that the admission at trial of evidence of his pretrial statement to police violated his rights under Miranda v. Arizona, 384 U.S. 436 (1966), and that his trial counsel was ineffective in failing to object to the admission of that evidence. Docket No. 11-3 at 3. On July 21, 2015, the superior court denied the petition for two reasons: (1) the petition failed to state a prima facie claim for relief because Mr. Raygoza's allegations were conclusory and he had not included copies of reasonably available documentary evidence, such as the trial transcript or any other documentary evidence, and (2) habeas relief was not available for claims that could have been brought on appeal. Docket No. 11-3 at 11-12 (Monterey County Superior Court July 21, 2015 order, citing People v. Duvall, 9 Cal.4th 464, 474 (Cal. 1995), and In re Dixon, 41 Cal. 2d 756, 759 (Cal. 1953)).

         Mr. Raygoza then filed a petition for writ of habeas corpus in the California Court of Appeal, again alleging that the admission of his statement to police violated his Miranda rights and that trial counsel was ineffective in failing to object to the admission of that evidence. He also added a claim that appellate counsel was ineffective in failing to argue the Miranda claim on appeal. Docket No. 11-3 at 15. On September 23, 2015, the California Court of Appeal summarily denied the petition. Docket No. 11-3 at 39.

         Mr. Raygoza next went to the California Supreme Court, where he received the rejection that forms the basis for Respondent's motion to dismiss. Mr. Raygoza filed a petition for writ of habeas corpus in the California Supreme Court raising the same three claims presented to the appellate court, i.e., a Miranda claim, a claim that trial counsel was ineffective in not arguing that there had been a Miranda violation, and a claim that appellate counsel was ineffective in not arguing that there had been a Miranda violation. Docket No. 11-3 at 27. The California Supreme Court denied the petition in a February 24, 2016 order citing Duvall, 9 Cal. 4th at 474, and Dixon, 41 Cal. 2d at 759. Docket No. 11-3 at 47.

         Mr. Raygoza then filed this action. In his federal petition for writ of habeas corpus, he alleged the following claims: (1) the amendment of the information after the close of evidence violated Mr. Raygoza's right to notice under the Sixth and Fourteenth Amendments; (2) the CALCRIM No. 1110 instruction violated his rights to a jury trial and due process because it eliminated the need for the jury to find all elements of a California Penal Code section 288(a) offense beyond a reasonable doubt; (3) the CALCRIM No. 1191 instruction violated Mr. Raygoza's right to due process because it allowed the use of charged offenses as evidence of his propensity to commit other charged offenses; (4) the admission of evidence of Mr. Raygoza's prior violent acts violated his right to due process; (5) the prosecutor committed misconduct during closing argument when he vouched for a witness; (6) cumulative error; (7) the admission of Mr. Raygoza's pretrial statement violated his Miranda rights; (8) trial counsel was ineffective in failing to object to the introduction of Mr. Raygoza's interrogation; and (9) appellate counsel was ineffective in failing to raise the Fifth Amendment violation. The Court found that, liberally construed, the claims appeared to be cognizable and ordered Respondent to file a response.

         Respondent has moved to dismiss Claim 7 as procedurally defaulted and Claims 8 and 9 as unexhausted. Mr. Raygoza has opposed the motion, arguing that there is cause and prejudice for the procedural default of Claim 7, and that Claims 8 and 9 were exhausted in state court.

         III. DISCUSSION

         A. The Miranda Claim (i.e., Claim 7) Is Procedurally Defaulted

         To help the reader understand the procedural default analysis, the Court will summarize it first and then fill in the details. In brief, the Court's analysis is as follows: Mr. Raygoza's Miranda claim is procedurally defaulted because it was not raised on direct appeal, as required by California law. A procedurally defaulted claim may be considered in a federal habeas action if a petitioner shows cause and prejudice for the procedural default. Ineffective assistance of counsel may provide cause to excuse a procedural default, but only if (a) the ineffective assistance amounts to constitutionally ineffective assistance of counsel, (b) the ineffective-assistance-of-counsel claim was presented as a separate claim in state court, and (c) state court remedies were exhausted for the ineffective-assistance-of-counsel claim. Mr. Raygoza does not show cause to excuse his procedural default based on ineffective assistance of counsel because his ineffective-assistance-of-counsel claims are unexhausted and meritless. Therefore, the Miranda claim will be dismissed as procedurally defaulted. A more detailed analysis follows.

         1. The Procedural Default

         A federal court “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). “The doctrine applies to bar federal habeas when a state court declined to address a prisoner's federal claims because the prisoner had failed to meet a state procedural requirement. In these cases, the state judgment rests on independent and adequate state procedural grounds.” Id. at 729-30. A “discretionary state procedural rule can serve as an adequate ground to bar federal habeas review.” Beard v. Kindler, 558 U.S. 53, 60 (2009). A state procedural bar is “independent” if the state court explicitly invokes the procedural rule as a separate basis for its decision and the application of the state procedural rule does not depend on a consideration of federal law. Vang v. Nevada, 329 F.3d 1069, 1074-75 (9th Cir. 2003). An “adequate” state rule must be “firmly established and regularly followed.” Walker v. Martin, 562 U.S. 307, 316 (2011) (quoting Kindler, 558 U.S. at 60-61). A rule can be “firmly established and regularly followed” even if it is discretionary, and even if the state court may choose to deny a procedurally barred claim on the merits. See Id. at 316, 319. The state bears the burden of proving the adequacy of a state procedural bar. Bennett v. Mueller, 322 F.3d 573, 585-86 (9th Cir. 2003).

         Here, the California Supreme Court denied Mr. Raygoza's petition for writ of habeas corpus with citations to Duvall, 9 Cal.4th at 474, [1] and Dixon, 41 Cal. 2d at 759. In Dixon, the California Supreme Court stated: “The general rule is that habeas corpus cannot serve as a substitute for an appeal, and, in the absence of special circumstances constituting an excuse for failure to employ that remedy, the writ will not lie where the claimed errors could have been, but were not, raised upon a timely appeal from a judgment of conviction.” 41 Cal. 2d at 759. The Dixon bar does not apply to claims of ineffective assistance of counsel. In re Robbins, 18 Cal.4th 770, 814 n.34 (Cal. 1998). Since the Dixon bar could only apply to the Miranda claim, there was no ambiguity as to the meaning of the Dixon citation by the California Supreme Court: the Dixon citation in the order denying the petition for writ of habeas corpus meant that the California Supreme Court refused to consider the Miranda claim for the procedural reason that the Miranda claim had to be brought on direct appeal rather than in a state habeas action.

         Having identified the Dixon rule against using habeas as a substitute for appeal as the procedural bar imposed on the Miranda claim by the California Supreme Court, this Court next must consider whether that bar is independent and adequate, so as to preclude federal habeas review. See Coleman, 501 U.S. at 729. With regard to whether the Dixon bar is independent and adequate, this Court adheres to the specific analytic framework described in Bennett, 322 F.3d at 585-86.

Once the state has adequately pled the existence of an independent and adequate state procedural ground as an affirmative defense, the burden to place that defense in issue shifts to the petitioner. The petitioner may satisfy this burden by asserting specific factual allegations that demonstrate the inadequacy of the state procedure, including citation to authority demonstrating inconsistent application of the rule. Once having done so, however, the ultimate burden is the state's.

Id. at 586. Here, Respondent satisfied his initial burden under Bennett by identifying Mr. Raygoza's petition for writ of habeas corpus to the California Supreme Court, noting the rejection of that petition by the California Supreme Court with a citation to the Dixon bar against using habeas as a substitute for appeal, and pleading that the Dixon bar is an independent and adequate state procedural ground. The “burden to place that defense in issue” then “shift[ed] to the petitioner, ” Bennett, 322 F.3d at 586, but Mr. Raygoza did not meet his burden because he did not challenge the Dixon bar's independence or adequacy in his opposition. (Indeed, his opposition appears to accept that there is a valid procedural bar, and tries to show cause to excuse it -- an issue discussed in Section A.2 in this order.)

         As noted earlier, to be adequate, the state court rule must be firmly established and regularly followed. See Walker, 562 U.S. at 316. The U.S. Supreme Court has determined that California's Dixon bar qualifies as an adequate procedural ground because it is firmly established and regularly followed. Johnson v. Lee, 136 S.Ct. 1802, 1805 (2016).

         The independence of the bar is readily apparent. The Dixon bar is independent because the California Supreme Court “explicitly invoke[d] the procedural rule as a separate basis for its decision, ” Vang, 329 F.3d at 1074, and the application of the bar did not “depend[] on a consideration of federal law, ” id. at 1075, because federal law plays no role in determining whether a claim could have been raised on direct appeal rather than in a state habeas petition. See generally Bennett v. Mueller, 322 F.3d at 581 (rule that is not “interwoven with federal law” is an independent state procedural ground).

         The California Supreme Court imposed a state procedural bar that is adequate and independent of federal law. Mr. Raygoza's Miranda claim is procedurally defaulted.

         2. There Is No Ineffective Assistance Of Counsel Providing Cause ...


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