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Skidmore v. Lizarraga

United States District Court, N.D. California, San Jose Division

January 9, 2020

CARL SKIDMORE, Petitioner,
v.
JOE LIZARRAGA, Warden of California State Prison at Mule Creek, Respondent.

          ORDER RE PETITIONER'S AMENDED MOTION TO ALTER OR AMEND JUDGMENT PURSUANT TO FEDERAL RULE OF CIVIL PROCEDURE 59(E) [RE: ECF 98]

          BETH LABSON FREEMAN UNITED STATES DISTRICT JUDGE.

         Before the Court is Petitioner Carl Skidmore's amended motion to alter or amend judgment pursuant to Federal Rule of Civil Procedure 59(e) (“amended Rule 59(e) motion”), which was filed on September 19, 2019. See Amended Rule 59(e) Motion, ECF 98. Briefing on the motion was completed on October 7, 2019. See Opposition, ECF 99; Reply, ECF 100. The amended Rule 59(e) motion was not noticed for hearing, and the Court finds it suitable for decision without oral argument. See Civ. L.R. 7-1(b).

         The amended Rule 59(e) motion is DENIED to the extent Petitioner seeks to alter or amend the judgment in favor of Respondent. The motion is GRANTED IN PART to correct certain errors in the underlying order identified by Petitioner.

         I. BACKGROUND

         Petitioner Carl Skidmore, a state prisoner represented by counsel, is serving a sentence of 307 years to life in prison following his conviction of rape, sexual assault, and molestation of his two stepdaughters. On March 18, 2019, this Court issued an order denying Petitioner's amended petition for writ of habeas corpus under 28 U.S.C. § 2254 and motion for evidentiary hearing (“Denial Order”). See Denial Order, ECF 78. The Court entered judgment for Respondent on the same date. See Judgment, ECF 79.

         Petitioner filed a Rule 59(e) motion on April 4, 2019. See Rule 59(e) Motion, ECF 80. On June 8, 2019, after briefing was completed, Petitioner filed a motion to amend his Rule 59(e) motion. See Motion to Amend, ECF 88. However, Petitioner withdrew his motion to amend after Respondent filed opposition. See Notice of Withdrawal of Motion, ECF 90.

         Petitioner filed second motion to amend his Rule 59(e) motion on June 27, 2019. See Motion to Amend, ECF 91. The Court granted Petitioner's request to extend the briefing schedule, and briefing was completed on August 15, 2019. See Order Granting Extension, ECF 95; Reply, ECF 96. The Court granted Petitioner's second motion to amend his Rule 59(e) motion on September 16, 2019. See Order Granting Leave to Amend Motion, ECF 97.

         Petitioner filed the current amended Rule 59(e) motion on September 19, 2019. See Amended Rule 59(e) Motion, ECF 98. Respondent filed an opposition on October 2, 2019, and Petitioner filed a reply on October 7, 2019. See Opposition, ECF 99; Reply, ECF 100.

         II. LEGAL STANDARD

         A habeas petitioner may seek to alter or amend a judgment pursuant to Federal Rule of Civil Procedure 59(e). See Rishor v. Ferguson, 822 F.3d 482, 492 (9th Cir. 2016). Relief under Rule 59(e) “is an ‘extraordinary remedy' usually available only when (1) the court committed manifest errors of law or fact, (2) the court is presented with newly discovered or previously unavailable evidence, (3) the decision was manifestly unjust, or (4) there is an intervening change in the controlling law.” Id. at 491-92 (internal quotation marks and citations omitted). “[A] Rule 59(e) motion may not be used to raise arguments or present evidence for the first time when they could reasonably have been raised earlier in the litigation.” Id. at 492 (internal quotation marks and citation omitted). A district court has “considerable discretion” in deciding a Rule 59(e) motion. Id.

         III. DISCUSSION

         Petitioner does not expressly identify which of the four possible grounds identified above entitle him to relief, but he appears to request relief under ground (1), as he asserts that the Court's Denial Order contains several legal and factual errors. First, Petitioner argues that the Court erred in declining to consider new evidence submitted with his traverse when adjudicating Claims 1, 2, 3, and 6. Second, Petitioner contends that the Court erred in denying Claim 4 based in part on determinations that certain of Petitioner's arguments proffered in support of that claim were speculative. Third, Petitioner contends that the Court erred in denying Claim 4 based on determinations that trial counsel's actions were strategic choices. Fourth, Petitioner argues that the Court erred in crediting the state appellate court's erroneous finding that Petitioner was found guilty of soliciting murder and bribery. Fifth, Petitioner contends that the Court erred in denying a certificate of appealability as to: (a) its finding that de novo review of Claim 7 did not required de novo review of all claims; (b) denial of Claims 1, 2, 3, and 6; (c) denial of Claim 4; and (d) denial of discovery and/or an evidentiary hearing. Sixth, Petitioner asserts that the Court erred in finding that he failed to submit a signed copy of his declaration.

         Respondent argues that Petitioner has failed to demonstrate any error by the Court, with the possible exception of the Court's statement regarding Petitioner's declaration. Respondent argues that the Court's statement that the declaration Petitioner submitted with his traverse was unsigned was correct, and that the Court may have disregarded the signed declaration Petitioner submitted after the fact. Respondent argues that even if the Court erred in failing to recognize that Petitioner later submitted a signed declaration, such error had no effect because the Court expressly accepted Petitioner's declaration based on an assumption that Petitioner could submit a signed and dated declaration after the fact.

         The Court takes up each of the errors asserted by Petitioner in turn.

         A. New Evidence Submitted with Traverse

         Petitioner contends that the Court erred in declining to consider new evidence that Petitioner submitted as Exhibits 44-52 to his traverse (“Traverse Exhibits”). The Traverse Exhibits were not presented to the California Supreme Court or submitted to this Court with the amended habeas petition. See Denial Order at 11, ECF 78. Respondent objected to the Court's consideration of the Traverse Exhibits in connection with any of Petitioner's claims. See Id. at 11-12. The Court sustained the objection with respect to Claims 1, 2, 3, and 6, as those claims were denied on the merits and thus review was limited to the state court record pursuant to 28 U.S.C. § 2254(d) and Cullen v. Pinholster, 563 U.S. 170, 181 (2011). See Denial Order at 11-12, ECF 78.

         This Court properly limited its § 2254(d) review of Claims 1, 2, 3, and 6 to the state court record, because the California Supreme Court's summary denial of those claims constituted an adjudication on the merits. See Harrington v. Richter, 562 U.S. 86, 98 (2011). Under § 2254(d), a district court cannot grant relief on any habeas claim that was adjudicated on the merits by a state court unless that adjudication: “(1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States; or (2) resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding.” In determining whether the requirements of § 2254(d) are met, a district court is limited to the state court record. See Pinholster, 563 U.S. at 181. If the district court determines that the petitioner has satisfied § 2254(d) based only on the evidence that was before the state court, the district court then must evaluate the claim de novo, and may consider evidence presented for the first time in federal court. See Ayala v. Chappell, 829 F.3d 1081, 1094 (9th Cir. 2016).

         Petitioner does not argue that the Court erred in limiting its § 2254(d) review of Claims 1, 2, 3, and 6 to the state court record. However, Petitioner contends that this Court applied the wrong legal standard in conducting the § 2254(d) review, and that had it applied the correct legal standard the Court would have found the requirements of § 2254(d) satisfied as to those claims. Petitioner asks the Court to amend its ruling to reflect that the California Supreme Court's denial of relief on Claims 1, 2, 3, and 6 involved an unreasonable application of clearly established federal law, and then to conduct a de novo evaluation of those claims. Petitioner points out that the Traverse Exhibits properly could be considered on de novo review.

         Petitioner's contention that the Court applied the wrong legal standard turns on the nature of the California Supreme Court's collateral review process, which was summarized in a footnote in Pinholster:

Under California law, the California Supreme Court's summary denial of a habeas petition on the merits reflects that court's determination that “the claims made in th[e] petition do not state a prima facie case entitling the petitioner to relief.” In re Clark, 5 Cal.4th 750, 770, 21 Cal.Rptr.2d 509, 855 P.2d 729, 741-742 (1993). It appears that the court generally assumes the allegations in the petition to be true, but does not accept wholly conclusory allegations, People v. Duvall, 9 Cal.4th 464, 474, 37 Cal.Rptr.2d 259, 886 P.2d 1252, 1258 (1995), and will also “review the record of the trial . . . to assess the merits of the petitioner's claims, ” Clark, supra, at 770, 21 Cal.Rptr.2d 509, 855 P.2d, at 742.

Pinholster, 563 U.S. at 188 n.12. Petitioner argues that when a federal district court reviews a summary denial issued pursuant to this process, the district court must expressly address the reasonableness of the state court's finding that the petitioner failed to state a prima facie case. According to Petitioner, it was error for this Court instead to frame the inquiry in the following terms: “[T]his Court's task is to determine, based on the state court record, what arguments or theories could have supported the denial of Claim 1 and whether fairminded jurists could disagree as to whether those arguments or theories constitute an unreasonable application of Strickland v. Washington, 466 U.S. 668 (1984).” Amended Rule 59(e) Motion at 6 (quoting Denial Order at 15), ECF 98.

         Petitioner has not cited any authority holding that it is error for a federal district court to review the state court's summary denial of a habeas petition without expressly recognizing that the denial was based on failure to state a prima facie case.[1] This Court applied the legal standard articulated by the United States Supreme Court in Richter, 562 U.S. 86, and later recited in Pinholster, 563 U.S. 170. Both Richter and Pinholster involved review of the California Supreme Court's summary denial of habeas claims. See Pinholster, 563 U.S. at 187-88; Richter, 562 U.S. at 98. In each case, the United States Supreme Court held that the denial constituted a decision on the merits for purposes of § 2254(d), and that the federal habeas petitioner could “satisfy the ‘unreasonable application' prong of § 2254(d)(1) only by showing that ‘there was no reasonable basis' for the California Supreme Court's decision.” Pinholster, 563 U.S. at 188 (quoting Richter, 562 U.S. at 98). In applying this standard, the federal court “must determine what arguments or theories . . . could have supporte[d] the state court's decision; and then it must ask whether it is possible fairminded jurists could disagree that those arguments or theories are inconsistent with the holding in a prior decision of this Court.'” Id. (quoting Richter, 562 U.S. at 102). As noted above, this Court closely tracked this language in framing its review of the California Supreme Court's summary denial of Claims 1, 2, and 3. See Denial Order at 15 (“[T]his Court's task is to determine, based on the state court record, what arguments or theories could have supported the denial of Claim 1 and whether fairminded jurists could disagree as to whether those arguments or theories constitute an unreasonable application of Strickland.” (citing Richter, 562 U.S. at 102)).

         The phrase “prima facie case” was not mentioned in Richter, and in Pinholster it was relegated to a footnote. Neither opinion suggested that a district court's evaluation of a habeas claim under § 2254(d) must be framed in the manner asserted by Petitioner. Petitioner argues in his reply brief that Richter and Pinholster did not require an express determination whether the petitioner had stated a prima facie case because the California Supreme Court obtained informal briefing before issuing its summary denials in those cases. See Reply at 2, ECF 100. Neither Richter nor Pinholster discussed California's informal briefing process or suggested that informal briefing affected the § 2254(d) inquiry. To the contrary, in Pinholster the United States Supreme Court recognized that the summary denial at issue constituted a determination by the California Supreme Court that petitioner's allegations, viewed in light of the trial record, did not state a prima facie case. See Pinholster, 563 U.S. at 188 n.12. This Court therefore concludes that it did not err in applying the standard articulated in Richter and Pinholster.

         Petitioner cites Sully v. Ayers, 725 F.3d 1057 (9th Cir. 2013), in support of his position. In Sully, the bulk of the petitioner's federal habeas claims were exhausted in a state habeas petition filed in the California Supreme Court and denied summarily. See id. at 1066-67. The district court denied Sully's request for an evidentiary hearing and denied his federal habeas petition. See Id. The Ninth Circuit affirmed, finding that the district court had not abused its discretion in denying an evidentiary hearing and that Sully had “failed to establish that the California Supreme Court's decision denying his claims necessarily involved an unreasonable application of clearly established federal law” pursuant to § 2254(d). Id. at 1068, 1075-76. In reviewing Sully's claims that had been summarily denied by the California Supreme Court on collateral review, the Ninth Circuit applied the legal standard articulated in Richter and Pinholster - the same standard applied by this Court to Petitioner's claims. See Id. at 1067-1074. The Ninth Circuit did not mention the phrase “prima facie case” in Sully, except in a footnote explaining that the California Supreme Court's summary denial of a habeas petition constitutes a denial on the merits. See Id. at 1067 & n.4.

         Petitioner argues that his position is supported by language in Sully indicating that the district court must consider “what arguments or theories actually supported the state court's decision.” Sully, 725 F.3d at 1075 n.6. According to Petitioner, this language indicates that the proper standard of review requires an explicit finding regarding the reasonableness of the California Supreme Court's determination that Petitioner did not state a prima facie case. Petitioner's reliance on the quoted language is misplaced. In the cited passage, the Sully court drew a distinction between those claims that were summarily denied by the California Supreme Court on collateral review and a single claim that was denied by the California Supreme Court in a reasoned opinion affirming Sully's conviction and sentence on direct appeal. See Id. With respect to the latter claim as to which the California Supreme Court issued a reasoned opinion, the Ninth Circuit held that “unlike with the court's summary denial, we consider for the purposes of § 2254(d) what arguments or theories actually supported the state court's decision, and ask whether it is possible fairminded jurists could disagree that those arguments or theories are inconsistent with the holding in a prior decision of the Supreme Court.” Id. (internal quotation ...


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