Jason Andrew Smith v. State of California

Filing 87

ORDER ACCEPTING REPORT AND RECOMMENDATIONS by Judge Andre Birotte Jr for Report and Recommendation 73 . (ib)

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UNITED STATES DISTRICT COURT

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CENTRAL DISTRICT OF CALIFORNIA

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JASON ANDREW SMITH,

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Petitioner,
v.
J.W. KATAVICH, Warden,

Case No. CV 13-1262 AB (AFM)
ORDER ACCEPTING FINDINGS
AND RECOMMENDATIONS OF
UNITED STATES MAGISTRATE
JUDGE

Respondent.

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Pursuant to 28 U.S.C. § 636, the Court has reviewed the Petition, records on

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file and the Report and Recommendation of United States Magistrate Judge.

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Further, the Court has engaged in a de novo review of those portions of the Report

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to which the parties have made objections. The Court accepts the Report, with the

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following exception.

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After the Report and Recommendation was issued, the Supreme Court held

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in Johnson v. Lee, 136 S. Ct. 1802, 1805-06 (May 31, 2016), that California’s

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Dixon rule is an adequate state procedural rule that bars federal habeas review. In

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light of Johnson v. Lee, the Report and Recommendation is ordered changed as

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follows: (1) The sentence on page 14, line 27 to page 15, line 1 is stricken; and (2)

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Section A, at page 9, line 17 to page 10, line 16, is replaced as follows:
A.

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Grounds Two and Three are arguably procedurally

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defaulted.

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Respondent contends that Grounds Two and Three —

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instructional error and insufficiency of the evidence — are

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procedurally defaulted because the California Court of Appeal rejected

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it on independent and adequate state law procedural grounds,

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specifically, California’s “Dixon rule.” (Ans. Mem. at 12-15.) In this

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case, the Court of Appeal did not cite Dixon itself, but cited three other

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cases1 which Respondent says stand for the same proposition as Dixon,

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namely that habeas corpus cannot stand as a substitute for appeal.

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In order for a claim to be procedurally defaulted for federal

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habeas corpus purposes, “the application of the state procedural rule

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must provide ‘an adequate and independent state law basis’ on which

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the state court can deny relief.” Park v. California, 202 F.3d 1146,

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1151 (9th Cir. 2000). “For a state procedural rule to be ‘independent,’

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the state law basis for the decision must not be interwoven with federal

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law.”

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Morales v. Calderon, 85 F.3d 1387, 1393 (9th Cir. 1996) (“Federal

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habeas review is not barred if the state decision ‘fairly appears to rest

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primarily on federal law, or to be interwoven with the federal law.’”).

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In order for a state procedural bar to be “adequate,” the state courts

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must employ a “firmly established and regularly followed state

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practice.” Ford v. Georgia, 498 U.S. 411, 423-24 (1991).

La Crosse v. Kernan, 244 F.3d 702, 704 (9th Cir. 2001);

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In re Harris, 5 Cal.4th 813, 826 (1993), In re Clark, 5 Cal. 4th 750, 765 (1993),
and In re Waltreus, 62 Cal. 2d 218, 225 (1965).
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Under In re Dixon, 41 Cal. 2d 756, 759 (1953), habeas corpus

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cannot serve as a substitute for appeal and absent special

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circumstances, habeas relief is not available for a claimed error that

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could have been, but was not raised on direct appeal. In In re Robbins,

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18 Cal. 4th 770, 811-12 (1998), the California Supreme Court

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explicitly held that it would no longer consider whether an error

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alleged in a state habeas corpus petition constituted a federal

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constitutional violation. In other words, if the California Supreme

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Court finds a claim to be procedurally defaulted after Robbins was

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decided, it has done so solely upon state law grounds. Id. Here,

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petitioner’s state habeas corpus petition was denied by the California

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Court of Appeal in June 2012, 14 years after Robbins was decided.

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Accordingly, the California Court of Appeal’s denial of the petition

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was necessarily predicated only upon consideration of state law issues,

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rendering the ruling an independent procedural bar. See, e.g., Franklin

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v. Walker, 2009 WL 5215371, at *5 (E.D. Cal. Dec. 28, 2009) (finding

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Dixon rule to be independent when the default was applied subsequent

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to the Robbins decision), Report and Recommendation adopted by

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2010 WL 431733 (E.D. Cal. Feb. 2, 2010); Craft v. Yates, 2009 WL

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3486303, at *5 (E.D. Cal. Oct. 23, 2009) (Tallman, R., Circuit Judge

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sitting by designation) (same); Protsman v. Pliler, 318 F. Supp. 2d

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1004, 1006-08 (S.D. Cal. 2004) (same).

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Whether the procedural bar imposed was adequate in addition to

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being independent depends on whether it was “‘clear, consistently

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applied, and well-established at the time of the petitioner’s purported

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default.’” Robinson v. Ignacio, 360 F.3d 1044, 1052 (9th Cir. 2004).

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The Supreme Court has held that California’s Dixon rule is well-

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established and regularly followed, and therefore adequate to bar

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federal habeas review. See Johnson v. Lee, 136 S. Ct. 1802, 1805-06

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(2016) (per curiam).

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Consequently, federal habeas review of Grounds Two and Three

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is barred, unless petitioner can demonstrate cause for his procedural

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default and actual prejudice as a result of the alleged violation of

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federal law. See Coleman v. Thompson, 501 U.S. 722, 750 (1991);

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Smith v. Baldwin, 510 F.3d 1127, 1146 (9th Cir. 2007); Bennett v.

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Mueller, 322 F.3d 573, 580 (9th Cir. 2003); Park, 202 F.3d at 1150.
Here, petitioner has not purported to make either showing.

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The Supreme Court has recognized an exception to the

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requirement that the petitioner demonstrate both “cause” and

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“prejudice,” where the petitioner can demonstrate that failure to

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consider the procedurally defaulted claim will result in a fundamental

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miscarriage of justice because he is actually innocent of the crimes of

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which he was convicted. See, e.g., Coleman, 501 U.S. at 750; Murray

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v. Carrier, 477 U.S. 478, 496 (1986); Smith, 510 F.3d at 1139; Noltie

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v. Peterson, 9 F.3d 802, 806 (9th Cir. 1993). As discussed in Section

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C of the Report and Recommendation, petitioner has not demonstrated

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that failure to consider his claims in Grounds Two and Three will

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result in a fundamental miscarriage of justice based on actual

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innocence. The merits of Grounds Two and Three are also considered

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and denied in Sections E and B of the Report and Recommendation.

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IT THEREFORE IS ORDERED that (1) the Report and Recommendation of
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the Magistrate Judge is accepted and adopted; (2) petitioner’s request for an
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///

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evidentiary hearing is denied; and (3) Judgment shall be entered dismissing this

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action with prejudice.

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DATED: August 17, 2016
____________________________________
ANDRÉ BIROTTE JR.
UNITED STATES DISTRICT JUDGE

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