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Swierski v. Koenig

United States District Court, N.D. California

August 28, 2019

GARY D SWIERSKI, Petitioner,
v.
CRAIG KOENIG, Respondent.

          ORDER GRANTING MOTION TO DISMISS PETITION IN PART; REQUIRING RESPONDENT TO SHOW CAUSE RE: DKT. NO. 25

          HAYWOOD S GILLIAM, JR., UNITED STATES DISTRICT JUDGE.

         Petitioner Gary D. Swierski, an inmate at Correctional Training Facility in Soledad, California, filed a petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254 challenging a conviction and sentence from Santa Clara County Superior Court. Pending before the Court is Respondent's Motion to Dismiss the Petition in Part. Dkt. No. 25. Petitioner has filed an opposition, Dkt. No. 27; Respondent has filed a reply, Dkt. No. 31; and Petitioner has filed a sur-reply, Dkt. Nos. 35 and 37.[1] For the reasons set forth below, the Court GRANTS Respondent's Motion to Dismiss the Petition in Part.

         BACKGROUND

         On June 20, 2012, a jury found Petitioner guilty of first degree murder and the state court sentenced him to an indeterminate term of twenty-five years to life. People v. Swierski, No. H038846, 2014 WL 6680126, at *1 (Cal.Ct.App. Nov. 25, 2014). On March 6, 2014, Petitioner appealed the conviction on the following grounds: the trial court erred in denying his Youngblood/Trombetta motion; the trial court deprived him of his right to present a complete defense by threatening to admit inflammatory and prejudicial evidence if he did so; the trial court violated his due process rights when it admitted prejudicial and inflammatory evidence, specifically the admission of evidence of his prior acts of domestic violence against Casinillo and certain letters written by Petitioner; trial counsel was ineffective when he failed to object to (1) the admission of certain letters written by Petitioner, (2) the admission of assistant medical examiner Dr. Jorden's testimony regarding strangulation, and (3) to two instances of prosecutorial misconduct during the prosecutor's summation to the jury, specifically the prosecutor's misstatement of the law with respect to the burden of proof and the prosecutor's vouching for prosecution witness Eva Swierski; failure to instruct on imperfect self-defense voluntary manslaughter; and cumulative error. See generally Swierski, 2014 WL 6680126; Dkt. No. 6 at 11. That same day, appellate counsel also filed a habeas petition in the state appellate court, which raised two of the issues raised in the direct appeal.[2] Swierski, 2014 WL 6680126, at *1; Dkt. No. 6 at 11. On November 25, 2014, the state appellate court affirmed the judgment and denied the appeal. The appellate court also denied the habeas petition by separate order. See Id. On January 2, 2015, the California Supreme Court received a petition for review from Petitioner which raised the same issues as raised in his direct appeal, Dkt. No. 25-1 at 3-72, as well as a habeas petition which raised the following issues: (1) the trial court deprived him of his right to present a complete defense by threatening to admit inflammatory and prejudicial evidence if he did so, and (2) trial counsel was ineffective when he failed to object to the admission of damaging evidence, specifically assistant medical examiner Dr. Jorden's testimony regarding strangulation, and to two instances of prosecutorial misconduct during the prosecutor's summation to the jury, specifically the prosecutor's misstatement of the law with respect to the burden of proof and the prosecutor's vouching for prosecution witness Eva Swierski, Dkt. No. 25-2 at 3-68. On February 25, 2015, the California Supreme Court summarily denied both the petition for review and the habeas petition. See Dkt. No. 25-1 at 2 and Dkt. No. 25-2 at 2.

         On June 10, 2016, the Court opened the instant habeas action pursuant to its receipt of documents from Petitioner. Dkt. No. 1. On June 14, 2016, the Court docketed a motion from Petitioner requesting that the Court stay and hold in abeyance the instant action so that he could exhaust his claims in state court. Dkt. No. 6. On September 28, 2016, the Court granted Petitioner's request to stay the proceedings so that he could exhaust state court remedies for his claims. Dkt. No. 11.

         On November 3, 2017, the California Supreme Court docketed a habeas petition from Petitioner which raised the following claims: (1) ineffective assistance of trial counsel; (2) ineffective assistance of appellate counsel; (3) the trial court abused its discretion in how it handled the Trombetta hearing regarding the three tapes of the victim's agitated violent outbursts; (4) the prosecution failed to disclose the tapes of the victim's outbursts, and the police destroyed said tapes, in violation of Brady v. Maryland, 373 U.S. 83 (1963); (5) the trial court violated his rights under the Due Process Clause when it refused to allow him to argue that he was the victim of Intimate Partner Battering; (6) the trial court violated his rights under the Equal Protection Clause because it prevented him from arguing that he was the victim of Intimate Partner Battering because of his gender; (7) the trial court erred in excluding certain extrinsic evidence that corroborated Petitioner's testimony and certain outside expert testimony; (8) prosecutorial misconduct; (9) the trial court erred in allowing the prosecution's coroner to testify based on Eva's hearsay; (10) instructional error; (11) conspiracy between defense counsel and the prosecutor to redact information from exhibits 25 and 43; (12) cumulative error; (13) insufficient evidence as a matter of law; (14) the trial court unfairly restricted the defense's cross-examination of the key prosecution witness; and (15) actual innocence. Dkt. No. 25-3.

         On January 24, 2018, the California Supreme Court denied the habeas petition as follows:

The petition for writ of habeas corpus is denied. (See In re Robbins (1998) 18 Cal.4th 770, 780 [courts will not entertain habeas corpus claims that are untimely]; In re Clark (1993) 5 Cal.4th 750, 767-769 [courts will not entertain habeas corpus claims that are successive].)

Dkt. No. 15 at 386.

         On April 2, 2018, the Court granted Petitioner's request to reopen this action, and dismissed the amended petition with leave to amend. Dkt. No. 18. On July 18, 2018, the Court found that the second amended petition stated the following cognizable claims: (1) the trial court erred in denying his motion seeking dismissal of the case, filed pursuant to California v. Trombetta, 467 U.S. 479 (1984), and Arizona v. Youngblood, 488 U.S. 51 (1988); (2) the trial court erred in admitting a variety of prejudicial and inflammatory letters; (3) the trial court deprived him of the right to present a complete defense by threatening to admit inflammatory and prejudicial evidence if he did so; (4) the trial court erred in admitting prejudicial and inflammatory evidence which served no purpose other than to arouse the jury's passions and prejudices; (5) the trial court erred by failing to instruct the jury on imperfect self-defense voluntary manslaughter; (6) the trial court erred in allowing the prosecution's coroner to testify extensively about the mechanics of strangulation; (7) the trial court erred in omitting relevant parts of the jury instruction that were an element of the statutory charge; (8) the trial court erred in restricting defense counsel's cross-examination of the prosecution's key witness; (9) the prosecutor committed misconduct on multiple grounds; (10) defense counsel rendered ineffective assistance on multiple grounds; (11) appellate counsel rendered ineffective assistance on multiple grounds; (12) law enforcement failed to preserve material, exculpatory evidence; (13) the cumulative effect of the above errors prejudiced Petitioner; and (14) there was insufficient evidence to support the conviction. Dkt. No. 21.

         DISCUSSION

         Respondent has filed a motion to dismiss Claim Nos. 6-9, 11, 12, and 14, and certain of the ineffective assistance of trial counsel subclaims (Claim No. 10), as procedurally barred because they were dismissed as untimely by the California Supreme Court with citations to In re Robbins, 18 Cal.4th 770, 780 (Cal. 1998), and to In re Clark, 5 Cal.4th 750, 767-69 (Cal. 1993). Dkt. No. 25. Petitioner argues that his claims are not procedurally barred because the California Supreme Court applied the timeliness bar in a discretionary, surprising and unfair manner; he is entitled to the exceptions to the Clark procedural bar; he can demonstrate cause and prejudice to excuse the procedural default; and he is actually innocent. Dkt. No. 27.

         A. Standard

         A federal court will not review questions of federal law decided by a state court if the decision also 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, 729-30 (1991). In the context of direct review by the United States Supreme Court, the “adequate and independent state ground” doctrine goes to jurisdiction; in federal habeas cases, in whatever court, it is a matter of comity and federalism. Id. The procedural default rule is a specific instance of the more general “adequate and independent state grounds” doctrine. Wells v. Maass, 28 F.3d 1005, 1008 (9th Cir. 1994).

         In cases in which a state prisoner has defaulted his federal claims in state court pursuant to an independent and adequate state procedural rule, federal habeas review of the claims is barred unless the prisoner 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. Coleman, 501 U.S. at 750.

         The cause standard requires the petitioner to show that “‘some objective factor external to the defense impeded counsel's efforts'” to construct or raise the claim.” McClesky v. Zant, 499 U.S. 467, 493 (1991) (citing Murray v. Carrier, 477 U.S. 478, 488 (1986)). Objective factors that constitute cause include interference by officials that makes compliance with the state's procedural rule impracticable, and a showing that the factual or legal basis for a claim was not reasonably available to counsel. See Id. at 493-94. Petitioner also must show actual prejudice resulting from the errors of which he complains. See McCleskey, 499 U.S. at 494; United States v. Frady, 456 U.S. 152, 168 (1982). Petitioner bears the burden of showing not just that errors at his trial created a possibility of prejudice, but that they “worked to his actual and substantial disadvantage, infecting his entire trial with error of constitutional dimensions.” Frady, 456 U.S. at 170 (emphasis in original). To ascertain the extent to which such errors taint the constitutional sufficiency of the trial, they must be evaluated in the total context of the events at trial. See Paradis v. Arave, 130 F.3d 385, 393 (9th Cir. 1997) (citing Frady, 456 U.S. at 169).

         If a state prisoner cannot meet the cause and prejudice standard, a federal court may still hear the merits of the successive, abusive, procedurally defaulted or untimely claims if the failure to hear the claims would constitute a “miscarriage of justice.” See McQuiggin v. Perkins,569 U.S. 383, 391-92 (2013) (holding that miscarriage of justice (actual innocence) showing applies to claims filed after the AEDPA statute of limitations has run, as well as to successive, abusive and procedurally defaulted claims). The Supreme Court limits the “miscarriage of justice” exception to habeas petitioners who can show that “a constitutional violation has probably resulted in the conviction of one who is actually innocent.” Schlup v. Delo,513 U.S. 298, 327 (1995) (citing Murray, 477 U.S. at 496); see Johnson v. Knowles,541 F.3d 933, 936-38 (9th Cir. 2008) (“[t]he miscarriage of justice exception is limited to those extraordinary cases where the petitioner asserts his innocence and establishes that the court cannot have confidence in the contrary finding of guilt.”). “To be credible, [an actual innocence] claim requires petitioner to support his allegations of constitutional error with new reliable evidence-whether it be exculpatory scientific evidence, trustworthy eyewitness accounts, or critical physical evidence-that was not presented at trial.” Schlup, 513 U.S. at 324. This does not mean a petitioner need always affirmatively present physical evidence that he did not commit the crime with which he is charged. Gandarela v. Johnson,286 F.3d 1080, 1086 (9th Cir. 2002). The required evidence must create a colorable claim of actual innocence (i.e, that the petitioner is innocent of the charge for which he is incarcerated, as opposed to legal innocence as a result of legal error). Schlup, 513 U.S. at 321. It is not enough that the evidence show the existence of reasonable doubt: petitioner must show “that it is more likely than not that no reasonable juror would have convicted him.” Id. at 329 (internal quotation marks omitted). As ...


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