Alvaro Quezada v. Al K Scribner
Filing
97
ORDER by Magistrate Judge Marc L. Goldman: granting in part and denying in part 92 Motion to depart from the Ninth Circuit Mandate. (twdb)
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UNITED STATES DISTRICT COURT
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CENTRAL DISTRICT OF CALIFORNIA
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WESTERN DIVISION
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ALVARO QUEZADA,
12
Petitioner,
13
v.
14
A. K. SCRIBNER, Warden,
15
Respondent.
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Case No. CV 04-7532-RSWL (MLG)
ORDER GRANTING IN PART AND
DENYING IN PART RESPONDENT’S
MOTION TO DEPART FROM THE
NINTH CIRCUIT MANDATE
17
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19
I.
Background
20
This case is before the Court on remand from the Ninth Circuit for
21
an evidentiary hearing and additional proceedings. See Quezada v.
22
Scribner, 611 F.3d 1165 (9th Cir. 2010). Petitioner Alvaro Quezada was
23
convicted of first degree murder and conspiracy to commit murder, Cal.
24
Penal Code §§ 182, 187, and is currently serving a sentence of life
25
without the possibility of parole. The parties are familiar with the
26
facts and lengthy procedural history of this case, (see Docket No. 47
27
at 1-3), and only the relevant portions will be repeated here.
28
//
1
The Ninth Circuit’s remand order was issued during the pendency
2
of an appeal from Senior District Judge Ronald S.W. Lew’s November 21,
3
2007, judgment denying this petition for writ of habeas corpus. (Docket
4
Nos. 47-50.) One of the grounds for relief was Petitioner’s claim that
5
the prosecution withheld exculpatory evidence about benefits provided
6
to
7
Petitioner’s trial, in violation of Brady v. Maryland, 373 U.S. 83
8
(1963). In an October 26, 2007, Report and Recommendation, I concluded
9
that Petitioner’s Brady claim was likely subject to a procedural bar
10
because the Los Angeles County Superior Court had denied Petitioner’s
11
state habeas corpus petition as untimely.1 (Docket No. 47 at 37-38 &
12
n.16.) However, given the uncertainty about whether California’s
13
timeliness bar was an independent and adequate state basis for denying
14
collateral relief, see Townsend v. Knowles, 562 F.3d 1200, 1208 (9th
15
Cir. 2009), abrogated by Walker v. Martin, ---- U.S. ----, 131 S.Ct.
16
1120, 1128 (2011), I addressed Petitioner’s Brady claim on the merits
17
without deciding if the claim was procedurally barred. (Docket No. 47
18
at 37-41.) The denial of Petitioner’s Brady claim was based on the
19
finding that Petitioner had failed to produce evidence establishing
20
that the prosecution “withheld any information at all, let alone
21
favorable evidence.” (Id.) A certificate of appealability was granted
22
on a different claim in the petition, but not on the Brady claim.
23
(Docket No. 53.)
informant
Joseph
Aflague
in
exchange
for
his
testimony
at
24
During appellate proceedings in the Ninth Circuit, Petitioner
25
filed a motion to remand the petition based on newly discovered
26
27
28
1
It should be noted that the petition was stayed from October 28,
2005, through May 25, 2007, so that Petitioner could return to the
state courts to develop the Brady claim. (Docket No. 26, 31.)
2
1
evidence
2
cooperation with police. Quezada, 611 F.3d at 1166. On July 16, 2010,
3
the Ninth Circuit remanded the case to this Court, finding that
4
Petitioner was entitled to an evidentiary hearing under Townsend v.
5
Sain, 372 U.S. 293, 313 (1963), because he had presented newly
6
discovered evidence that he had been diligent in trying to obtain and
7
which, if proven, would entitle him to relief:
that
money
had
in
fact
been
given
to
Aflague
for
8
Quezada presents evidence that Aflague reported that from
9
1997 to 2007 he received between $9,000 and $25,000 for his
10
cooperation with law enforcement. In a December 11, 2008,
11
declaration,
12
previously represented to the court, the relocation funds and
13
compensation he received were not for his testimony in the
14
Eulloqui case. He also indicated that he lied about his
15
compensation while testifying in another case in 2007, because
16
he was angry and frustrated with the defense attorney in that
17
case. This satisfies the fourth prong of Townsend. See id.
18
...
Aflague
stated
that,
contrary
to
what
was
19
The evidence allegedly withheld by the state in this case
20
is favorable impeachment evidence involving a key government
21
witness. The evidence indicates that the government never
22
informed Quezada or his counsel of substantial compensation
23
that the government paid to Aflague, the only witness that
24
linked Quezada directly to the murder of Bruce Cleland.
25
...
26
The evidence also indicates that this witness, Joseph
27
Aflague, has previously perjured himself, in this case or
28
another case, regarding the compensation that he received from
3
his
1
the government.
2
Quezada, 611 F.3d at 1167.
3
The
Ninth
Circuit
noted
that
Respondent
did
not
deny
the
4
allegations regarding the newly discovered evidence, “but instead
5
assert[ed] that remand is inappropriate because Quezada’s claim is
6
procedurally barred. The government argues that Quezada must seek leave
7
to file a successive habeas petition. There is no support for this
8
contention. Townsend mandates an evidentiary hearing.” Id.
9
Accordingly, the Ninth Circuit remanded the petition for an evidentiary
10
hearing to:
11
[1] determine the admissibility, credibility, veracity, and
12
materiality of newly discovered evidence, […and then] [2]
13
determine whether the new facts render Petitioner's Brady
14
claim unexhausted, […and then] [3] consider whether Petitioner
15
is procedurally barred from proceeding in state court, […] [4]
16
if [Petitioner] is not procedurally barred, the court should
17
stay and abey federal proceedings so that Petitioner may
18
exhaust his claims in state court, […] [5] if [Petitioner's]
19
claim
20
proceed to determine whether [Petitioner] can show cause and
21
prejudice or manifest injustice to permit federal review of
22
the claim.
23
is
procedurally
barred,
the
district
court
should
Id.
24
On remand, the Federal Public Defender was appointed to represent
25
Petitioner, and on August 26, 2010, the parties’ entered into a
26
stipulation for discovery in preparation for the evidentiary hearing.
27
(Docket Nos. 59, 66, 68.) The Court resolved one discovery dispute, but
28
discovery otherwise proceeded without incident until May 2, 2011, when
4
1
Respondent filed a motion to stay discovery pending resolution of his
2
motion in the
3
States Supreme Court decisions in Cullen v. Pinholster, ---- U.S. ----,
4
131 S.Ct. 1388 (Apr. 4, 2011) and Walker v. Martin, ---- U.S. ----, 131
5
S.Ct. 1120 (Feb. 23, 2011). Discovery was stayed on May 24, 2011.
6
(Docket Nos. 81, 86.)
Ninth Circuit to recall the mandate based on the United
7
On June 16, 2011, the Ninth Circuit denied Respondent's motion to
8
recall the mandate, but indicated that Respondent was "free to argue
9
to the district court that [Pinholster] is intervening controlling
10
authority that requires the district court to depart from the mandate
11
of this court." (Docket No. 89, Ex. A.) On June 24, 2011, Respondent
12
filed a motion to depart from the mandate in this Court, and on July
13
22, 2011, Petitioner filed an opposition. (Docket Nos. 92, 94.)
14
Argument on the motion was heard on August 2, 2011.
15
16
II.
Standard of Review
17
A decision on whether to depart from the mandate of an appellate
18
court is generally evaluated under the law of the case doctrine. See
19
e.g., Lindy Pen Co., Inc. v. Bic Pen Corp., 982 F.2d 1400, 1404 (9th
20
Cir. 1993). In the Ninth Circuit, “‘The law of the case doctrine states
21
that the decision of an appellate court on a legal issue must be
22
followed in all subsequent proceedings in the same case.’” In re
23
Rainbow Magazine, Inc., 77 F.3d 278, 281 (9th Cir. 1996) (quoting
24
Herrington v. County of Sonoma, 12 F.3d 901, 904 (9th Cir. 1993)); see
25
also Thompson v. Paul, 657 F.Supp.2d 1113, 1120 n.5 (D. Ariz. 2009)
26
(explaining discretionary nature of the doctrine: “The difference
27
between the law of the case and res judicata is that ‘one directs
28
discretion, the other supersedes it and compels judgment.’”) (quoting
5
1
United States v. Miller, 822 F.2d 828, 832 (9th Cir. 1987)). An
2
exception to this rule applies when "intervening controlling authority
3
makes
4
Intervening controlling authority “includes changes in statutory as
5
well as case law.” Jeffries v. Wood, 114 F.3d 1484, 1489 n.1 (9th Cir.
6
1997), overruled on other grounds by Lindh v. Murphy, 521 U.S. 320
7
(1997). Thus, this Court must determine whether intervening Supreme
8
Court precedent, specifically Pinholster, 131 S.Ct. 1388, or Walker,
9
131 S.Ct. 1120, warrants departure from the Ninth Circuit’s order.
reconsideration
appropriate."
Rainbow,
77
F.3d
at
281.
10
11
12
III. Analysis
Respondent
first
contends
that
the
Court
should
not
allow
13
evidentiary development because Pinholster precludes consideration of
14
new evidence not presented to the state courts in its 28 U.S.C. §
15
2254(d)(1)
16
(“Resp’t’s Mot.”) at 2-5.) He contends that Petitioner’s claim should
17
be dismissed on the merits without further proceedings. (Id.) Second,
18
Respondent argues that Walker makes it clear that Petitioner’s claim
19
is procedurally defaulted, which provides the Court with an independent
20
reason
21
development contemplated in the Ninth Circuit’s remand order. (Resp’t’s
22
Mot. at 11.)
to
analysis.
dismiss
(Resp’t’s
Petitioner’s
Mot.
to
Brady
Depart
claim
From
without
The
the
Mandate
factual
23
In response, Petitioner concedes that the Brady issue was not
24
addressed on the merits by the superior court. He agrees that the state
25
court petition was denied because it was untimely, an independent state
26
procedural ground, and that the Brady claim is therefore subject to the
27
argument that it is procedurally barred. However, Petitioner contends
28
this renders Pinholster inapplicable to Petitioner’s case, because
6
1
Pinholster only applies to claims adjudicated on the merits by the
2
state court, and Walker demonstrates that the state court decision was
3
not on the merits. (Pet’r’s Opp. at 8-9.) More specifically, Petitioner
4
argues that Walker requires a finding that the Los Angeles County
5
Superior Court’s reliance on California’s timeliness bar in rejecting
6
his Brady claim was an independent and adequate state procedural ground
7
for decision, which precludes federal review of the claim in this Court
8
unless
9
Petitioner further argues that the Ninth Circuit mandate makes clear
10
that he has presented sufficient evidence to warrant a hearing on his
11
ability to overcome the procedural bar by demonstrating cause and
12
prejudice, making departure from the mandate and dismissal of the
13
petition inappropriate. (Pet’r’s Opp. at 10-12.)
he
can
demonstrate
cause
and
prejudice.
(Id.
at
6-10.)
14
The Court agrees with Petitioner that under Walker, his Brady
15
claim is procedurally barred unless he can demonstrate cause and
16
prejudice. But, if he can show cause and prejudice for the procedural
17
default, Pinholster would not be applicable to this petition because
18
the Brady claim was not addressed on the merits by the state courts.
19
A.
20
In Pinholster, 131 S.Ct. 1388, the Supreme Court reversed the
21
Ninth Circuit’s grant of a capital habeas corpus petition based on
22
ineffective assistance of counsel during the penalty phase of trial.
23
In granting the petition, the Ninth Circuit considered evidence outside
24
the state court record to conclude that the state court unreasonably
25
applied Strickland v. Washington, 466 U.S. 668 (1984), in denying
26
relief. Id. at 1397. The specific questions before the Supreme Court
27
were
28
consideration of evidence introduced in an evidentiary hearing before
(1)
Cullen v. Pinholster
"whether
review
under
7
28
U.S.C.
2254(d)(1)
permits
1
the federal habeas court," and (2) "whether the [Ninth Circuit]
2
properly granted Pinholster habeas relief on his claim of penalty-phase
3
ineffective assistance of counsel." Id. at 1398. Regarding the first
4
question, the California Attorney General argued that review under §
5
2254(d)(1) is limited to the evidence before the state court that
6
adjudicated the claim on the merits, and the Supreme Court agreed:
7
"[R]eview under § 2254(d)(1) is limited to the record that was before
8
the state court that adjudicated the claim on the merits," because the
9
statutory language of § 2254(d)(1) is written in the past tense, and
10
the "broader context of the statute as a whole...demonstrates Congress'
11
intent to channel prisoners' claims first to state courts." Id. at
12
1398-99.
13
Practically, this holding imposes a significant limitation on
14
federal district courts' ability to hold evidentiary hearings: if the
15
§2254(d)(1) analysis is limited to the state court record, the reasons
16
for federal courts to develop facts not presented to the state court
17
are substantially limited. Similarly, because discovery in habeas
18
proceedings
19
Pinholster's limitation on evidentiary hearings has consequences for
20
discovery in habeas cases. See, e.g., Lewis v. Ayers, 2011 WL 2260784,
21
at *7 (E.D. Cal. June 7, 2011) (taking previously ordered evidentiary
22
hearing off calendar and suggesting no discovery is available until
23
after a petitioner survives the § 2254(d)(1) analysis: "[H]ow could a
24
district court ever find good cause for federal habeas discovery...if
25
it could not be put to use in federal court at an evidentiary hearing
26
or otherwise[?]").
27
//
28
is
only
justified
upon
a
showing
of
good
cause,
However, the Pinholster Court explicitly noted that its holding
8
1
only applied to habeas corpus claims that “fall within the scope of §
2
2254(d),” meaning claims adjudicated on the merits in state court
3
proceedings. Pinholster, 131 S.Ct. at 1400-01. The Pinholster Court was
4
clear that its holding did not reach claims that were not adjudicated
5
on the merits in state court. Id. For claims not adjudicated on the
6
merits in state court, such as claims subject to a procedural bar, 28
7
U.S.C. § 2254(e)(2) continues to govern district court discretion to
8
consider new evidence in habeas corpus cases. Id.
9
question previously deferred by this court, whether or not Petitioner’s
10
Brady claim is subject to a procedural bar, must be answered in
11
determining
12
departure from the Ninth Circuit’s remand order.
whether
13
B.
14
Although
Pinholster
controls
this
Accordingly, the
case
and
justifies
Walker v. Martin
California
does
not
specify
exact
time
limits
on
15
collateral review, California courts have developed a discretionary
16
timeliness doctrine that requires prisoners to seek collateral review
17
“as promptly as circumstances allow” and “without substantial delay,”
18
subject to four exceptions. See In re Clark, 5 Cal.4th 750, 765 n.1,
19
797-98 (1995); In re Robbins, 18 Cal.4th 770, 780, 811-12 (1998). In
20
Walker, 131 S.Ct. 1120, the United States Supreme Court concluded that
21
California’s timeliness requirement constitutes an independent and
22
adequate state procedural basis for decision that bars federal review
23
absent a showing of cause and prejudice or a fundamental miscarriage
24
of justice. Id. at 1125, 1128-30 (citing Coleman v. Thompson, 501 U.S.
25
722, 731 (1991) and Wainwright v. Sykes, 433 U.S. 72, 84-85 (1977)).
26
The Walker Court reasoned that although the California timeliness
27
requirement
28
regularly followed. Id.
is
discretionary,
it
9
is
both
firmly
established
and
1
C.
2
Without
Analysis
question,
Pinholster
and
Walker
have
significant
3
consequences for habeas corpus petitioners in federal court. However,
4
Pinholster and Walker generally apply to distinctly different types of
5
cases, and most federal habeas corpus petitioners will not be impacted
6
by
7
consideration of evidence outside the state court record only applies
8
to petitions adjudicated on the merits by the state court, and Walker
9
only
both
decisions.
applies
to
This
is
California
because
prisoners
Pinholster’s
whose
state
restriction
habeas
on
corpus
10
petitions were rejected by California courts based on the state law
11
procedural ground of untimeliness. In other words, unless a California
12
court rejects a petitioner’s claims by making alternative findings on
13
the merits and on procedural grounds, Pinholster and Walker will not
14
apply simultaneously to the same federal petition. Determining whether
15
Petitioner’s Brady claim was adjudicated on the merits or rejected on
16
state procedural grounds, or both, is critical to deciding whether to
17
depart from the Ninth Circuit mandate in this case.
18
Although I previously determined that Petitioner’s Brady claim was
19
“likely” subject to a procedural bar, (Docket No. 47 at 38 n.16), I
20
declined to conclusively decide the issue because, at that time, it was
21
unclear whether California’s timeliness rule was an adequate state law
22
basis for imposition of a procedural bar. See Townsend, 562 F.3d at
23
1208. Walker resolved the uncertainty, and it is now necessary to
24
determine
25
Petitioner’s Brady claim.
the
exact
basis
for
the
state
court’s
rejection
of
26
The California Supreme Court and California Court of Appeal
27
summarily rejected Petitioner’s Brady claim, and this Court is required
28
to look to the Los Angeles County Superior Court’s reasoned decision
10
1
rejecting Petitioner’s Brady claim as the basis for the California
2
Supreme Court decision. See Mendez v. Knowles, 556 F.3d 757, 767 (9th
3
Cir. 2009)(citing Ylst v. Nunnemaker, 501 U.S. 797, 803-04 (1991)). On
4
February 21, 2006, the Los Angeles County Superior Court, inter alia,
5
summarized Petitioner’s Brady claim involving alleged payments to
6
Aflague, described Petitioner’s evidentiary burden on habeas corpus,
7
and then moved to a timeliness determination:
8
Timeliness
9
Petitioner
contends
that
he
has
met
a
timeliness
10
exception by virtue of the recent discovery of new evidence.
11
His
12
discovery is dubious and unconvincing. If the Court assumes,
13
arguendo, that this vague contrivance is accurate, it still
14
remains for the “new” evidence to qualify for a timeliness
15
exception. “For purposes of the exception to the procedural
16
bar against successive or untimely petitions, a ‘fundamental
17
miscarriage of justice’ will have occurred in any proceeding
18
in which it can be demonstrated: (1) that the error of
19
constitutional
20
fundamentally unfair that absent the error no reasonable judge
21
or jury would have convicted the petitioner...’ (In re Clark
22
(1993) 5 Cal.4th 750, 761.) Ordinarily, evidence which merely
23
serves to impeach a witness is not sufficiently significant to
24
warrant a new trial. (People v. Long (1940) 15 Cal.2d 590,
25
607-08.)
26
demonstrate the “constitutional magnitude” necessary to be
27
granted an exception. This petition is not timely.
28
Alleged Brady Violations and False Testimony
description
As
of
the
magnitude
discussed
circumstances
led
to
a
subsequently,
11
surrounding
trial
that
Petitioner
this
was
fails
so
to
1
Petitioner cites Napue v. Illinois (1959) 360 U.S. 264,
2
to justify his allegations regarding both Brady violations and
3
Aflague’s purported false testimony. For Napue to apply, it
4
must be clear that the prosecutor at trial not only knew of an
5
arrangement for consideration between state agents and the
6
informant witness, but allowed false testimony to the contrary
7
to be brought into court.
8
Petitioner bases his complaint on an unproven undisclosed
9
agreement between the state and Aflague whereby he would avoid
10
prosecution for his ongoing or past crimes, in exchange for
11
his testimony against [Petitioner]. Petitioner proceeds on the
12
theory
13
Aflague’s denial and the prosecutor’s ‘failure’ to produce
14
evidence of such arrangement constitute errors. Petitioner
15
fails to provide credible evidence of such an arrangement and
16
fails to make a prima facie case supporting these allegations.
17
(In re Crow (1971) 4 Cal.3d 613, 624.).
that
an
arrangement
must
exist;
therefore,
both
18
(Lodgment 7 to First Am. Pet. (“FAP”) at 3-5.) The superior court went
19
on to discuss Petitioner’s allegation that the prosecutor allowed
20
Aflague to testify falsely, and discussed alleged errors relating to
21
other witnesses before concluding: “For the reasons stated above,
22
Petitioner has failed to meet his burden. The Petition for Writ of
23
Habeas Corpus is denied.” (Lodgment 7 to FAP at 9.)
24
Respondent contends that the decision represents the superior
25
court’s rejection of Petitioner’s Brady claim both on the merits,
26
requiring review under 28 U.S.C. § 2254(d), and as untimely, resulting
27
in a procedural bar that precludes federal review unless Petitioner
28
demonstrates cause and prejudice. (Resp’t’s Mot. at 1.) He contends
12
1
that this Court’s prior rejection of Petitioner’s Brady claim involved
2
a conclusive and unreviewable determination that the state court
3
decision was on the merits. (Resp’t’s Mot. at 3.) However, in the
4
Report and Recommendation, I explicitly declined to decide whether the
5
state court’s decision was based on an independent and adequate state
6
procedural rule, and instead addressed with the merits because it was
7
legally permissible and a simpler basis for decision.2 (See Docket No.
8
47 at 37-41.) Given the speculative nature of Petitioner’s Brady claim
9
at that time, I found that the claim was “clearly without merit” such
10
that it could be denied without deciding the procedural bar issue.
11
In light of the decision in Walker, I agree with Petitioner that
12
the Los Angeles County Superior Court’s denial of the habeas corpus
13
petition rested on its untimeliness under state law. The superior court
14
judge explicitly said so. Moreover, the superior court’s review of the
15
facts underlying the Brady claim does not transform the decision to one
16
on the merits. As noted, under California law, a prisoner whose claim
17
on habeas review is found to be untimely may still be entitled to
18
review on the merits if he shows that a state law exception applies by
19
demonstrating:
20
(1) that error of constitutional magnitude led to a trial that
21
was
22
reasonable judge or jury would have convicted the petitioner;
23
(2) that the petitioner is actually innocent of the crime or
24
crimes of which he or she was convicted; (3) that the death
so
fundamentally
unfair
that
absent
the
error
no
25
26
27
28
2
See Lambrix v. Singletary, 520 U.S. 518, 524 (1997) (where it is
easier to resolve a petitioner’s claims on the merits, the interests of
judicial economy counsel against deciding the often more complicated
issue of procedural default); Walters v. Maass, 45 F.3d 1355, 1360 n.6
(9th Cir. 1995).
13
1
penalty was imposed by a sentencing authority that had such a
2
grossly misleading profile of the petitioner before it that,
3
absent the trial error or omission, no reasonable judge or
4
jury would have imposed a sentence of death; or (4) that the
5
petitioner
6
statute.
was
convicted
or
sentenced
under
an
invalid
7
Robbins, 18 Cal.4th at 780-81, 811 (quoting Clark, 5 Cal.4th at 797-
8
98). Here, the superior court considered whether Petitioner’s claim
9
fell within the first listed exception, and concluded: “As discussed
10
subsequently, Petitioner fails to demonstrate the ‘constitutional
11
magnitude’ necessary to be granted an exception. This petition is not
12
timely.” (Lodgment 7 to FAP at 4) (emphasis added).
13
This
demonstrates
that
the
superior
court’s
discussion
of
14
Petitioner’s
15
Petitioner
had
16
magnitude”
exception
17
correctly argues, the California Supreme Court has made clear that when
18
a California court considers the applicability of that exception, it
19
does so only by reference to state law and does not consider the merits
20
of the petitioner’s federal claim:
Brady
claim
involved
demonstrated
to
the
a
determination
entitlement
to
timeliness
bar.
the
And,
about
whether
“constitutional
as
Petitioner
21
Although the exception is phrased in terms of error of
22
constitutional magnitude-which obviously may include federal
23
constitutional claims-in applying this exception and finding
24
it inapplicable we shall, in this case and in the future,
25
adopt the following approach as our standard practice: We need
26
not and will not decide whether the alleged error actually
27
constitutes a federal constitutional violation. Instead, we
28
shall assume, for the purpose of addressing the procedural
14
1
issue, that a federal constitutional error is stated, and we
2
shall
3
application of state law, it cannot be said that the asserted
4
error “led to a trial that was so fundamentally unfair that
5
absent the error no reasonable judge or jury would have
6
convicted the petitioner.”
find
the
exception
inapposite
if,
based
upon
our
7
Robbins, 18 Cal.4th at 811-12. The California courts do not consider
8
the federal constitutional merits in this context in order to preserve
9
the independence of the state procedural bar. Id. at n.32. (“We are
10
aware that federal courts will not honor bars that rest ‘primarily’ on
11
resolution of the merits of federal claims, or that are ‘interwoven’
12
with such claims...As explained in the text above and following,
13
whenever
14
exclusively by reference to state law.”)(internal citations omitted).
15
Accordingly, the superior court’s conclusion that Petitioner’s Brady
16
claim did not fall within the first exception to California’s time-bar
17
rested solely on state law grounds and did not address the merits of
18
Petitioner’s Brady claim under federal law.
we
apply
the
first
three
Clark
exceptions,
we
do
so
19
Respondent argues that the superior court decision should be
20
viewed as containing two alternate rulings, one on procedural grounds
21
and one on the merits. At the hearing, Respondent asserted that the
22
basis for viewing the decision as containing two alternative holdings
23
is that state courts do so “all the time.” However, the specific
24
language in the state court order must be examined in deciding the
25
basis for decision. Given the superior court’s explicit language, it
26
is
27
Petitioner’s Brady claim did not fall within Clark’s first exception
28
to untimeliness. There was no alternative basis for decision in the
clear
that
the
petition
was
15
found
to
be
untimely
and
that
1
superior court’s opinion. This conclusion is supported by the state
2
court’s near exclusive reference to state law in accordance with the
3
principles announced in Robbins. Although the superior court referenced
4
Napue v. Illinois, 360 U.S. 264 (1959), when it described Petitioner’s
5
arguments, it otherwise relied exclusively on California cases. (See
6
Lodgment 7 to FAP.) For these reasons, I conclude the court rejected
7
Petitioner’s Brady claim on the basis of untimeliness only.
8
Under these circumstances, Petitioner’s claim is procedurally
9
barred unless he can demonstrate “‘cause for the default and actual
10
prejudice as a result of the alleged violation of federal law.’”
11
Vansickel v. White, 166 F.3d 953, 958 (9th Cir. 1999) (quoting Coleman,
12
501 U.S. at 750). In order to demonstrate cause for a procedural
13
default, “a petitioner must demonstrate that the default is due to an
14
external objective factor that ‘cannot fairly be attributed to him.’”
15
Smith v. Baldwin, 510 F.3d 1127, 1146 (9th Cir. 2007) (citing Manning
16
v. Foster, 224 F.3d 1129, 1133 (2000) and Coleman, 501 U.S. at 753).
17
In
18
Petitioner must demonstrate there is a “reasonable probability” of a
19
different outcome absent the constitutional violation. Id. at 1148; see
20
also
21
contends, without citation, that Petitioner is not entitled to factual
22
development to overcome the procedural bar with evidence developed for
23
the first time in federal court. (Resp’t’s Mot. at 11 n.6.) There is
24
no support for this assertion. To the extent Respondent is asserting
25
that Pinholster precludes consideration of new facts in the cause and
order
to
demonstrate
Strickler
v.
Greene,
prejudice
527
U.S.
as
a
263,
result
290
of
the
(1999).3
default,
Respondent
26
3
27
28
The Court is cognizant that demonstrating cause and prejudice to
overcome a procedural bar of a Brady claim parallels the suppression
and materiality elements of a successful Brady claim. See Strickler,
527 U.S. at 282.
16
1
prejudice
2
prohibition on consideration of new evidence only applies to claims
3
“adjudicated on the merits.” Pinholster, 131 S.Ct. at 1400-01. Indeed,
4
at least one court since the Pinholster decision has concluded that
5
federal court evidentiary hearings may be warranted in determining
6
whether a petitioner can overcome a procedural bar. See United States
7
ex rel. Brady v. Hardy, 2011 WL 1575662, at *1-3 (N.D. Ill. Apr. 25,
8
2011) (granting in part the state’s motion for reconsideration of
9
evidentiary hearing order and ruling that the evidentiary hearing
10
previously ordered would only address whether the petitioner could
11
overcome a procedural bar by demonstrating actual innocence). I agree
12
with this analysis, and given that the Ninth Circuit already determined
13
that Petitioner has consistently been diligent, see 28 U.S.C. §
14
2254(e)(2), factual development on cause and prejudice is appropriate
15
in this case.
analysis,
Respondent
is
wrong
because
Pinholster’s
16
In sum, the Walker and Pinholster cases change the complexion of
17
this case, albeit not dramatically. Walker supplied the intervening
18
controlling
19
clarifies that the superior court’s timeliness ruling was based in an
20
independent state procedural rule. The Ninth Circuit directed this
21
Court to conduct an evidentiary hearing to determine whether there was
22
a Brady violation. But it also directed the Court to determine whether
23
the Brady claim was procedurally barred, and if so, whether there
24
existed cause and prejudice which excuses state procedural default.
25
Having determined that the procedural bar is applicable, the next step
26
is an evaluation of whether there was cause for the failure to adhere
27
to the state procedures and prejudice arising from the imposition of
28
the
bar.
authority
Pinholster
that
does
affects
not
apply
17
Petitioner’s
to
the
Brady
cause
and
claim
and
prejudice
1
evaluation.
2
new evidence on the issues of cause and prejudice even in Pinholster’s
3
wake. See Hardy, 2011 WL 1575662, at *1-3.
A petitioner may overcome a procedural bar by presenting
4
For these reasons, a limited departure from the Ninth Circuit
5
mandate is justified. The petition will not simply be denied with
6
prejudice, either under § 2254(d) review or based on a procedural bar,
7
as Respondent urges. However, to the extent the Ninth Circuit’s remand
8
order contemplated development and introduction of new evidence for the
9
purpose of resolving Petitioner’s Brady claim under § 2254(d)(1), the
10
Court will depart from the mandate. This is because no § 2254(d)(1)
11
analysis is warranted under AEDPA, given that the state court’s ruling
12
rested solely on an independent and adequate state law ground.
13
However, that does not end the inquiry, as Petitioner’s claim is
14
subject to a procedural bar unless he can demonstrate cause and
15
prejudice. Such a procedure was contemplated by the Ninth Circuit’s
16
order, and the Court will not depart from that portion of the mandate.
17
Instead, Petitioner may use the new evidence presented to the Ninth
18
Circuit
19
procedural bar.
20
//
21
//
22
//
23
//
24
//
25
//
26
//
27
//
28
//
and
adduced
in
discovery
18
in
attempting
to
overcome
the
1
Whether additional discovery is necessary to litigate the cause
2
and prejudice issue will be determined at a future status conference.4
3
4
Dated: August 19, 2011
5
6
7
Marc L. Goldman
United States Magistrate
Judge
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
4
27
28
It is premature to determine whether Petitioner’s newly
discovered evidence renders his Brady claim unexhausted. Once the Court
is informed of the exact nature and scope of the newly discovered
evidence, it may be necessary to litigate the exhaustion issue.
19
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