Holloway v. Wong

Filing 94

FINDINGS and RECOMMENDATIONS signed by Magistrate Judge Jeremy D. Peterson on 01/30/2024 DIRECTING that the Clerk substitute Michael Martel as Respondent. It is further RECOMMENDED that the 56 Motion for Summary Judgment be denied without pre judice as to claims 1.C, 1.F, 7.B, 11, and 28; and 56 Motion for Summary Judgment be granted as to claims 1.A, 1.D 1.E.2, 2.A, 2.B, 2.C, 2.D, 2.E, 3, 4, 5.A, 5.B, 5.C, 5.D, 5.E.1, 5.F.2, 5.F.4, 5.G, 5.H, 5.I, 5.K, 5.L, 5.M, 5.N, 5.O, 6.C, 7.A, 7.C, 7.D, 9, 10.A, 19.B, 19.C, 21.B, 27, and 31 of the Petition for Writ of Habeas Corpus. Referred to District Judge Daniel J. Calabretta. Objections due within 30 days after being served with these Findings and Recommendations.(Lopez, K)

1
2
3
4
5
6
7
8

UNITED STATES DISTRICT COURT

9

FOR THE EASTERN DISTRICT OF CALIFORNIA

10
11

DUANE HOLLOWAY,

12

Petitioner,

13
14

v.

DEATH PENALTY CASE
FINDINGS & RECOMMENDATIONS

MICHAEL MARTEL, et al.,

15

Case No. 2:05-cv-02089-DJC-JDP

ECF No. 56

Respondents.

16
17

Petitioner is a state prisoner under sentence of death. Pending before the court is

18

respondent’s motion for summary judgment, seeking partial summary judgment on petitioner’s

19

Petition for Writ of Habeas Corpus on the grounds that certain claims are procedurally barred

20

from federal court review.1 ECF No. 56. After careful consideration of the parties’ briefs, ECF

21

Nos. 56, 65, 69, 73, and 85, and of the state court record, the undersigned recommends that

22

respondent’s motion for summary judgment be denied without prejudice as to claims 1.C, 1.F,

23

7.B, 11, and 28 of the petition and granted as to claims 1.A, 1.D (to the extent it alleges

24

ineffective assistance of counsel), 1.E.2, 2.A, 2.B, 2.C, 2.D, 2.E, 3, 4, 5.A, 5.B, 5.C, 5.D, 5.E.1,

25

5.F.2, 5.F.4, 5.G, 5.H, 5.I, 5.K, 5.L, 5.M, 5.N, 5.O, 6.C, 7.A, 7.C, 7.D, 9, 10.A, 19.B, 19.C, 21.B,

26
27
28

Pursuant to respondent’s request, see ECF No. 73 at 1 n.1, and in accordance with
Federal Rule of Civil Procedure 25(d), Michael Martel is substituted for his predecessor. The
Clerk of Court is directed to update the docket to reflect the substitution.
1
1

1

27, and 31.

2
3

PROCEDURAL HISTORY
In 1983, petitioner was charged by Information in Sacramento County, California, for the

4

first-degree murders of Diane Pencin and Debra Cimmino, first-degree burglary, and attempted

5

rape of Ms. Cimmino. He was tried and found guilty on all counts and sentenced to death. LD 1-

6

4.2 On appeal, the California Supreme Court reversed petitioner’s convictions and sentences due

7

to juror misconduct. People v. Holloway, 50 Cal. 3d 1098, 1103 (1990); LD 16.

8

Petitioner was retried in 1992 and again both convicted and sentenced to death. LD 17,

9

Vol. 5 at 1373-1380; LD 17, Vol. 7 at 1814. He appealed to the California Supreme Court, LD

10

21-23, and, on June 17, 2004, that court upheld the conviction and sentence. People v. Holloway,

11

33 Cal. 4th 96 (2004). LD 24. He petitioned for writ of certiorari from the United States

12

Supreme Court, which was denied. LD 35-37.

13

In July 2003, while his direct appeal was pending, petitioner filed his first petition for writ

14

of habeas corpus in the California Supreme Court. LD 30-31. After informal briefing, the

15

California Supreme Court denied the petition. LD 34.

16

On October 19, 2005, petitioner commenced proceedings in this court, with a motion to

17

proceed in forma pauperis and a motion to appoint counsel; both motions were granted. ECF

18

Nos. 1-3. Petitioner moved for equitable tolling of the applicable statute of limitations, ECF No.

19

10, and after briefing and a hearing, the court granted the motion and directed petitioner to file a

20

petition for writ of habeas corpus no later than September 29, 2006. ECF Nos. 22-23; see ECF

21

Nos. 14, 18.

22

On September 29, 2006, petitioner filed a petition for writ of habeas corpus with this

23

court, alleging thirty-five claims for relief. ECF No. 29. The same day, petitioner filed a motion

24

to stay and hold the matter in abeyance so that he could exhaust claims in the state court. ECF

25

No. 30. The court granted the motion after briefing and argument. ECF Nos. 35-36; see ECF

26

Nos. 31, 33.

27
28

“LD,” followed by volume number and page number where appropriate, refers to the
document or transcript lodged with this court by respondent on March 19, 2010. See ECF No. 55.
2
2

1

On October 30, 2006, petitioner filed a second petition for writ of habeas corpus with the

2

California Supreme Court. ECF No. 32.3 After informal briefing, LD 38-39, the California

3

Supreme Court summarily denied the petition. LD 40. The California Supreme Court denied all

4

claims on the merits and, additionally, denied some claims through the application of various

5

procedural bars. Id.

6

On October 22, 2009, this court lifted the previously imposed stay. ECF No. 47. On

7

March 11, 2010, respondent filed its answer to the Petition for Writ of Habeas Corpus in this

8

court. ECF No. 54.

9

On April 29, 2010, respondent filed the instant motion for summary judgment. ECF No.

10

56. On August 2, 2010, briefing was stayed pending issuance of a decision in Walker v. Martin,

11

562 U.S. 307 (2011), by the United States Supreme Court. ECF No. 62. Per the court’s request,

12

the parties filed a joint statement on February 28, 2011, in which they proposed a briefing

13

schedule for the pending summary judgment motion that would permit the parties to address

14

Walker in detail. ECF No. 65. The court adopted the proposed schedule on March 10, 2011.

15

ECF No. 66. Petitioner then filed an opposition to the motion, ECF No. 69, and respondent filed

16

a reply. ECF No. 73.

17

During this time, the Court also directed the parties to file briefs concerning the effect of

18

the United States Supreme Court’s opinion in Cullen v. Pinholster, 563 U.S. 170 (2011). ECF

19

Nos. 68, 70, 72. On November 3, 2011, the court vacated the hearing on respondent’s motion for

20

summary judgment, ordering the parties to meet and confer and to submit a joint statement

21

addressing “resolution of the section 2254(d) standards, respondent’s motion for summary

22
23
24
25
26
27
28

3

Petitioner lodged this petition and its accompanying exhibits in this court on November
1, 2006. ECF No. 32. On October 2, 2023, petitioner relodged that petition and exhibits,
requesting that some exhibits be lodged under seal. ECF No. 90-91. At the same time, petitioner
also lodged respondent’s informal response to that petition and petitioner’s reply to that response,
including its accompanying exhibits, all of which had been filed in state court. ECF No. 90. The
informal response and reply had previously been lodged by respondent on March 19, 2010. ECF
No. 55 (lodged documents 38 & 39). For clarity’s sake, herein, the undersigned refers to these
documents by their document numbers at the time of their initial lodging in this court; thus, the
second state habeas petition and its exhibits are referred to as ECF No. 32, the informal response
to that petition is referred to as LD 38, and the reply to the informal response is referred to as LD
39.
3

1

judgment, any other contemplated motions (i.e., discovery, evidentiary hearing), and the merits of

2

petitioner’s claims.” ECF No. 76. Petitioner moved for reconsideration of the order, ECF No.

3

77, and, following a hearing on the matter, the court granted petitioner’s motion and ordered the

4

parties to submit revised briefing following the anticipated decision from the United States

5

Supreme Court in Martinez v. Ryan. ECF No. 83.

6

The United States Supreme Court decided Martinez v. Ryan, 566 U.S. 1 (2012), on March

7

20, 2012. On April 19, 2012, respondent advised this court that he would not be filing a revised

8

motion for summary judgment. ECF No. 84. On May 10, 2012, pursuant to the court’s January

9

26, 2012 order, see ECF No. 83, petitioner filed a revised opposition to respondent’s summary

10
11

judgment motion. ECF No. 85.
On October 1, 2020, this matter was assigned to the undersigned. ECF No. 88.

12
13

ANALYSIS
In the instant motion, respondent moves for summary judgment on claims 1.A, 1.C, 1.D

14

(to the extent it alleges ineffective assistance of counsel), 1.E.2, 1.F, 2.A, 2.B, 2.C, 2.D, 2.E, 3, 4,

15

5.A, 5.B, 5.C, 5.D, 5.E.1, 5.F.2, 5.F.4, 5.G, 5.H, 5.I, 5.K, 5.L, 5.M, 5.N, 5.O, 6.C, 7.A, 7.B, 7.C,

16

7.D, 9, 10.A, 11, 19.B, 19.C, 21.B, 27, 28, and 31, arguing that these claims were denied by the

17

state court through the application of a procedural bar that is adequate and independent of federal

18

law.4 ECF No. 56; ECF No. 73 at 1, 15 & Appendix. Specifically, respondent first argues that

19

the state court properly dismissed as untimely claims 1.A, 1.C, 1.D (to the extent it alleges

20

ineffective assistance of counsel), 1.E.2, 1.F, 2.A, 2.B, 2.C, 2.D, 2.E, 3, 4, 5.A, 5.B, 5.C, 5.D,

21

5.E.1, 5.F.2, 5.F.4, 5.G, 5.H, 5.I, 5.K, 5.L, 5.M, 5.N, 5.O, 6.C, 7.A, 7.C, 7.D, 9, 10.A, 19.B, 19.C,

22

21.B, 27, and 31. ECF No. 56 at 2-199; ECF No. 73 at 1. Respondent also argues that the state

23

court properly denied claims 1.A, 1.C, 1.D (to the extent it alleges ineffective assistance of

24

counsel), 1.F, 2.A, 2.B, 2.C, 2.D, 2.E, 3, 4, 5.A, 5.B, 5.C, 5.D, 5.E.1, 5.F.2, 5.F.4, 5.G, 5.H, 5.I,

25
26
27
28

4

In his motion for summary judgment, respondent had also argued that the allegations
comprising what he describes as subclaim 1.E.1—alleging that juror Edmonds had improperly
discussed with other jurors his request to see a photograph of one of the victims while she was
alive—should be dismissed as having been defaulted by the California Supreme Court through its
invocation of the contemporaneous objection rule. ECF No. 56 at 11-13. In his reply brief,
however, he abandoned this argument. See ECF No. 73 at 15 & Appendix.
4

1

5.K, 5.L, 5.M, 5.N, 5.O, 6.C, 7.A, 7.C, 7.D, 9, 10.A, 19.B, 19.C, 21.B, and 27 because, per the

2

state court, these claims could have been raised in a prior petition for writ of habeas corpus were

3

not. ECF No. 56 at 2-199; ECF No. 73 at 1. Respondent additionally argues that the state court

4

properly denied claims 3, 4, 7.A, 7.C, 7.D, 9, 10.A, and 21.B on the grounds that they could have

5

been raised on appeal but were not. ECF No. 56 at 28-33, 71-75, 76-86, 92-94. Respondent next

6

argues that claims 7.B, 11, and 28 were properly denied on appeal by the state court’s application

7

of the contemporaneous objection rule. ECF No. 56 at 75-76, 86-88, 97-99. Finally, respondent

8

argues that claim 1.E.2, in addition to having been properly denied as untimely, was properly

9

barred by the state court because the claim had been previously raised and rejected both on direct

10

appeal and in a prior habeas corpus proceeding. ECF No. 56 at 13-15.

11

Petitioner disputes the application of these bars, ECF No. 85 at 15-48, and further argues

12

that, even if these bars facially apply to the claims at issue, the federal courts should disregard the

13

procedural bars because petitioner’s counsel’s ineffectiveness, at each relevant stage of the

14

proceedings, caused the default and prejudiced him. ECF No. 85 at 49-56. Petitioner argues in

15

the alternative that the federal court should disregard the identified procedural bars because their

16

application would result in a fundamental miscarriage of justice. ECF No. 85 at 56-61.

17
18
19

The undersigned considers each argument in turn.
I.

Law Governing Summary Judgment
Although a petition for writ of habeas corpus attacks a criminal judgment, it is,

20

fundamentally, “an independent civil suit.” Riddle v. Dyche, 262 U.S. 333, 335-36 (1923). “The

21

procedure on applications for habeas corpus for state prisoners is . . . found in a variety of

22

different sources,” 17B Wright, Miller, Cooper & Amar, Federal Practice and Procedure § 4268,

23

at 437-38 (2007), including the Federal Rules of Civil Procedure. Rules Governing Section 2254

24

Cases in the United States District Courts, Rule 11. Thus, courts have found summary judgment

25

motions as described in Rule 56 of the Federal Rules of Civil Procedure to be appropriate in

26

habeas corpus proceedings. See Blackledge v. Allison, 431 U.S. 63, 80 (1977); Clark v. Johnson,

27

202 F.3d 760, 764 (5th Cir. 2000) (“As a general principle, Rule 56 of the Federal Rules of Civil

28

Procedure, relating to summary judgment, applies with equal force in the context of habeas
5

1

corpus cases.”); Gentry v. Sinclair, 576 F. Supp. 2d 1130, 1138-40 (W.D. Wash. 2008).
Under Rule 56, summary judgment is appropriate when there is “no genuine dispute as to

2
3

any material fact and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P.

4

56(a). The principal purpose of Rule 56 is to isolate and dispose of factually unsupported claims

5

or defenses. Celotex Corp. v. Catrett, 477 U.S. 317, 323-24 (1986). Procedurally, the moving

6

party bears the initial responsibility of presenting the basis for its motion and identifying those

7

portions of the record, which, together with any affidavits, it believes demonstrate the absence of

8

a genuine issue of material fact. Celotex, 477 U.S. at 323; Devereaux v. Abbey, 263 F.3d 1070,

9

1076 (9th Cir. 2001) (en banc). If the moving party meets its burden with a properly supported

10

motion, the burden then shifts to the opposing party to present specific facts that show there to be

11

a genuine issue for trial. Fed. R. Civ. P. 56(e); Anderson v. Liberty Lobby, 477 U.S. 242, 248

12

(1986). When the opposing party bears the burden of proof on a dispositive issue at trial, the

13

moving party need not produce evidence that negates the opponent’s claim. See, e.g., Lujan v.

14

National Wildlife Fed’n, 497 U.S. 871, 885 (1990). Rather, the moving party need only point to

15

matters that demonstrate the absence of a genuine material factual issue. See Celotex, 477 U.S. at

16

323-24 (“[W]here the nonmoving party will bear the burden of proof at trial on a dispositive

17

issue, a summary judgment motion may properly be made in reliance solely on the ‘pleadings,

18

depositions, answers to interrogatories, and admissions on file.’”).

19

II.

General Law Governing Procedural Defaults

20

As a matter of comity, the federal courts “will not review a question of federal law

21

decided by a state court if the decision of that court rests on a state law ground that is independent

22

of the federal question and adequate to support the judgment.” Coleman v. Thompson, 501 U.S.

23

722, 729 (1991), superseded on other grounds by 28 U.S.C. § 2254(b) and overruled on other

24

grounds by Martinez v. Ryan, 566 U.S. 1 (2012). For a claim to be procedurally barred, the

25

petitioner must have actually violated a state procedural rule, see Wells v. Maass, 28 F.3d 1005,

26

1008 (9th Cir. 1994), and the highest state court to consider the claim must have actually relied on

27

the procedural default to deny the claim. See Harris v. Reed, 489 U.S. 255, 261-62 (1989);

28

Loveland v. Hatcher, 231 F.3d 640, 643 (9th Cir. 2000). For a state procedural rule to be found
6

1

“independent of the federal question,” Coleman, 501 U.S. at 729, the state law basis for the

2

decision must not be interwoven with federal law. Cooper v. Neven, 641 F.3d 322, 332 (9th Cir.

3

2011); Bennett v. Mueller, 322 F.3d 573, 581 (9th Cir. 2003); LaCrosse v. Kernan, 244 F.3d 702,

4

704 (9th Cir. 2001). To be “adequate to support the judgment,” Coleman, 501 U.S. at 729, the

5

rule must be “firmly established and regularly followed” at the time of the purported default.

6

Beard v. Kindler, 558 U.S. 53, 60 (2009) (quoting Lee v. Kemna, 534 U.S. 362, 376 (2002)); see

7

Fields v. Calderon, 125 F.3d 757, 760 (9th Cir. 1997) (holding that the question of whether a

8

state procedural bar is clear, consistently applied, and well-established is determined as of the

9

time the purported default occurred, not when a state court applied the bar to a claim).

10

The state bears the initial burden of pleading the existence of an independent and adequate

11

state procedural ground. Williams v. Filson, 908 F.3d 546, 577 (9th Cir. 2018); Bennett, 322 F.3d

12

at 585-86. If the state makes this initial showing, the burden shifts to the petitioner to

13

demonstrate that the procedural ground is not adequate, for example because it was not

14

consistently applied at the time of the state court adjudication. Williams, 908 F.3d at 577. If the

15

petitioner makes such a showing, the burden shifts back to the state to make a showing in rebuttal.

16

Id.

17

A federal court may elect not to apply an otherwise-valid procedural bar in two narrow

18

circumstances: if the petitioner can demonstrate cause for the default and prejudice as a result of

19

the alleged violation of federal law, or if the petitioner can show that failure to consider the claim

20

will result in a fundamental miscarriage of justice. Coleman, 501 U.S. at 750; see also Martinez,

21

566 U.S. at 9-10; Maples v. Thomas, 565 U.S. 266, 280 (2012). Ineffective assistance of counsel,

22

violating a petitioner’s Sixth Amendment rights in the state direct appeal or habeas corpus

23

litigation, may constitute cause for the federal court excusing an otherwise valid procedural

24

default. See Martinez, 566 U.S. 1.

25

If the federal court finds a state’s procedural default inapplicable, then the federal court

26

reviews the claim de novo. Cone v. Bell, 556 U.S. 449, 472 (2009); Pirtle v. Morgan, 313 F.3d

27

1160, 1167 (9th Cir. 2002). Correspondingly, where a claim is meritless, the federal court may

28

deny it on that basis without first determining the adequacy, independence, and applicability of
7

1

any procedural bars asserted for the claim. See, e.g., Franklin v. Johnson, 290 F.3d 1223, 1232

2

(9th Cir. 2002) (“[A]ppeals courts are empowered to, and in some cases should, reach the merits

3

of habeas petitions if they are, on their face and without regard to any facts that could be

4

developed below, clearly not meritorious despite an asserted procedural bar.”); see also Bell v.

5

Cone, 543 U.S. 447, 451 n.3 (2005) (holding that an application for habeas corpus may be denied

6

on the merits even if unexhausted in state court).

7
8

III.

Timeliness Bar
Here, respondent has asserted that this court is barred from considering claims 1.A, 1.C,

9

1.D (to the extent it alleges ineffective assistance of counsel), 1.E.2, 1.F, 2.A, 2.B, 2.C, 2.D, 2.E,

10

3, 4, 5.A, 5.B, 5.C, 5.D, 5.E.1, 5.F.2, 5.F.4, 5.G, 5.H, 5.I, 5.K, 5.L, 5.M, 5.N, 5.O, 6.C, 7.A, 7.C,

11

7.D, 9, 10.A, 19.B, 19.C, 21.B, 27, and 31, of the Petition for Writ of Habeas Corpus because the

12

California Supreme Court previously considered them and properly denied them as untimely.

13

ECF No. 56 at 2-199; ECF No. 73 at 1. Petitioner concedes that the California Supreme Court

14

denied these claims as untimely when it denied in full his second state petition. See ECF No. 85

15

at 1-2; LD 40 at 1 (citing In re Robbins, 18 Cal. 4th 770, 799 n.1 (1998), and In re Clark, 5 Cal.

16

4th 750, 782-87 (1993)). Petitioner argues, however, that this court should not defer to that

17

default because the California timeliness rule is not “adequate,” within the meaning of the

18

procedural default rules, because it serves no state interest, impedes federal review, and disserves

19

the goal of comity between the federal and state systems. ECF No. 85 at 16-27. Petitioner also

20

argues that California’s timeliness bar is not independent of federal law, and therefore deference

21

to it by this court is not permitted. ECF No. 85 at 37-43.5

22

In California, a convicted person seeking review of their judgment or sentence via writ of

23

habeas corpus must file a petition in the state court “as promptly as the circumstances allow,” In

24

re Clark, 5 Cal. 4th 750, 765, n. 5 (1993), and “without substantial delay.” In re Robbins, 18 Cal.

25

4th 770, 780 (1998); see Walker v. Martin, 562 U.S. 307, 310 (2011) (citing same). In 2002,

26

there was a presumption that a petition in a capital case would be considered “filed without

27
28

5

Petitioner raises additional arguments specific to claims 1.C, 1.E.2, and 1.F, which are
discussed post.
8

1

substantial delay if it [was] filed within 180 days after the final due date for the filing of

2

appellant’s reply brief on the direct appeal . . . .” Cal. Supreme Court Policies Regarding Cases

3

Arising From Judgments of Death, Policy 3, Standard 1–1.1 (2002).6 If a habeas corpus

4

petitioner files a petition with substantial delay, the state court may nevertheless consider it if the

5

petitioner shows that he delayed filing his petition because “(1) he had good reason to believe

6

other meritorious claims existed, and (2) the existence of facts supporting those claims could not

7

with due diligence have been confirmed at an earlier time.” Clark, 5 Cal. 4th at 781. “Claims

8

substantially delayed without justification,” however, “may be denied as untimely,” under

9

California’s rules. Walker, 562 U.S. at 310 (citing Robbins, 18 Cal. 4th at 780 and Clark, 5 Cal.

10

4th at 765 n.5). Finally, even if the state court concludes that the petition was filed with a

11

substantial delay that was unjustified, it may nevertheless opt to ignore the time bar and consider

12

the petition’s merits where, either, (i) a constitutional error created a trial so fundamentally unfair

13

that, absent the error, no reasonable judge or jury would have convicted the petitioner; (ii) the

14

petitioner is innocent; (iii) the sentencing judge or jury had such a grossly misleading profile of

15

the petitioner that absent the error, no reasonable sentencer would have imposed a sentence of

16

death; or (iv) “the petitioner was convicted or sentenced under an invalid statute.” Clark, 5 Cal.

17

4th at 797-98.

18

A.

Adequacy

19

Petitioner first argues that this court should not defer to California’s timeliness bar

20

because it is not “adequate,” within the meaning of Coleman, 501 U.S. 722, because the state

21

court principally applies this bar to evade federal review and, in application, it does not serve the

22

interests of comity or federalism. ECF No. 85 at 15-26. None of petitioner’s arguments have

23
24
25
26
27
28

6

As noted supra, this court considers the adequacy and independence of the asserted
procedural bar at the time the purported default, not at the time it was applied by the state court.
Fields, 125 F.3d at 760-61. Petitioner’s reply brief on direct appeal was filed on June 19, 2002,
see LD 23, and, on July 17, 2002, the California Supreme Court amended its rules for cases
arising out of death judgments to provide that a habeas corpus petition would be presumed timely
if it was filed within 180 days of the filing of appellant’s reply brief. See Cal. Supreme Court
Policies Regarding Cases Arising From Judgments of Death, Policy 3, Standard 1–1.1 (2002
rev’n). Thus, the state court petition was presumptively untimely, under California’s rules, if it
was filed after December 16, 2002.
9

1

merit. In Walker, 562 U.S. 307, the Supreme Court specifically considered California’s

2

timeliness bar and concluded that it was “adequate” under the procedural bar doctrine.

3

Reviewing the California Supreme Court’s historical application of this bar, the Supreme Court

4

concluded that the timeliness bar was both firmly established and consistently followed at the

5

time of Mr. Martin’s 2002 default. Walker, 562 U.S. at 317-21. The Court cautioned, however,

6

that “federal courts must carefully examine state procedural requirements to ensure that they do

7

not operate to discriminate against claims of federal rights.” Id. at 321 (citing Brown v. Western

8

R. Co. of Ala., 338 U.S. 294, 298-99 (1949); Davis v. Wechsler, 263 U.S. 22, 24-25 (1923); 16B

9

Wright & Miller § 4026, p. 386 (noting “risk that discretionary procedural sanctions may be

10

invoked more harshly against disfavored federal rights, . . . deny[ing] [litigants] a fair opportunity

11

to present federal claims”); and Kindler, 558 U.S., at 65 (Kennedy, J., concurring) (a state

12

procedural ground would be inadequate if the challenger shows a “purpose or pattern to evade

13

constitutional guarantees”)).

14

Petitioner argues that California’s application of its timeliness bar—and other procedural

15

bars—in capital habeas corpus cases implicates this concern identified in Walker. Per petitioner,

16

because the California Supreme Court routinely denies capital habeas corpus claims both on

17

procedural grounds and on the merits, that Court must have the principal purpose of stymieing

18

federal habeas corpus review of federal claims. ECF No. 85 at 17-26. In making this argument,

19

petitioner describes the procedural defaults as “superfluous,” given that the state court, in these

20

instances, has also simultaneously denied the claims on their merits. See id. Petitioner tendered

21

in support of this argument data indicating that, from January 1, 2000, to May 24, 2011, the

22

California Supreme Court summarily denied 220 petitions for writs of habeas corpus in capital

23

cases and denied them all both on the merits and through the application of procedural bars. ECF

24

No. 85 at 18-19; ECF No. 69, Ex. 3. This suffices to meet petitioner’s “modest” burden to

25

challenge the adequacy of the asserted bar. See Dennis v. Brown, 361 F. Supp. 2d 1124, 1130

26

(N.D. Cal. 2005) (citing Bennett, 322 F.3d at 585-86); see also Powell v. Lambert, 357 F.3d 871,

27

879 (9th Cir. 2004).

28

Respondent does not dispute petitioner’s factual allegations about the California Supreme
10

1

Court’s practice of summarily denying relief on capital habeas corpus petitions by both invoking

2

procedural bars and denying relief on the merits. ECF No. 73 at 2-5. He argues, though, that

3

petitioner’s data does not compel the conclusion that the California Supreme Court’s practice

4

implies that it invokes procedural bars, including the timeliness bar, in order to discriminate

5

against claims asserting federal rights by frustrating federal courts’ review. Id.

6

Respondent’s argument is more persuasive here. As the Supreme Court observed when

7

assessing the California Supreme Court’s practice of summary adjudication of capital habeas

8

corpus petitions, “[o]pinion-writing practices in state courts are influenced by considerations

9

other than avoiding scrutiny by collateral attack in federal court.” Harrington v. Richter, 562

10

U.S. 86, 99 (2011). In making this observation, the Court cited to the California Supreme Court’s

11

statement in In re Robbins, 18 Cal. 4th 770, 778 n.1 (1998), that the court’s application of

12

procedural bars in capital postconviction cases are a “means of protecting the integrity of our own

13

appeal and habeas corpus process” rather than a device for “insulating our judgments from federal

14

court review.” See id. The California Supreme Court in Robbins noted that it routinely denied

15

capital habeas corpus petitions through the application of procedural bars because the “imposition

16

of procedural bars substantially advances important institutional goals” of timely, orderly

17

administration of justice in postconviction proceedings. See Robbins, 18 Cal. 4th at 778 n.1. In

18

the case of the timeliness bar specifically, the California Supreme Court commented that

19

“imposition of the bar has had the documented and salutary effect of promoting compliance with

20

state habeas corpus procedures calling for prompt investigation and submission of habeas corpus

21

claims . . . . . Clearly, that institutional interest would suffer were the timeliness requirement to

22

be ignored . . .” Id. (internal citation omitted).

23

Recognizing these institutional interests in the application of a state’s procedural bars, the

24

Supreme Court has specifically approved of state courts’ practice of dismissing a claim on

25

alternative grounds—e.g., both on procedural grounds and on the merits. In Harris, the Court

26

acknowledged that state courts apply procedural bars to habeas corpus claims alleging federal

27

constitutional error, in order to serve those courts’ “interests in finality, federalism, and comity.”

28

489 U.S. at 264 n.10. Even so, the Court instructed,
11

1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27

a state court need not fear reaching the merits of a federal claim in
an alternative holding. By its very definition, the adequate and
independent state ground doctrine requires the federal court to
honor a state holding that is a sufficient basis for the state court’s
judgment, even when the state court also relies on federal law.
[citation] . . . In this way, a state court may reach a federal question
[on the merits of the claim] without sacrificing its interests in
applying the procedural bar.

Id. Courts’ use of alternative holdings is a practice that is not, in and of itself, suspect. See, e.g.,
Fox Film Corp. v. Muller, 296 U.S. 207, 210 (1935). In the habeas corpus context, “there may be
occasions when the state courts believe that the interests of justice are better served by denying
the prisoner’s arguments for both procedural and substantive reasons,” including that “a court
[may] want to show that it does not think its reliance on a procedural rule is causing any great
injustice.” U.S. ex rel. Caruso v. Zelinsky, 689 F.2d 435, 440 (3d Cir. 1982); Davis v. Allsbrooks,
778 F.2d 168, 175 (4th Cir. 1985) (citing same); see generally Long, 463 U.S. at 1038-39 (noting
the common practice of states denying habeas corpus claims on multiple grounds). Additionally,
because federal habeas corpus review proceeds differently under AEDPA depending on whether a
particular claim was denied on procedural grounds or on the merits, see generally 28 U.S.C.
§ 2254(d), ambiguity in the state court’s reasons for judgment may present considerable
challenges for federal courts in applying AEDPA. See, e.g., Wilson v. Sellers, 584 U.S. __, 138
S. Ct. 1188, 1192, 200 L. Ed. 2d 530 (2018); Richter, 562 U.S. at 98-100, 103. For this reason,
the state court may believe it useful to articulate all of its alternative reasons for its denial when
adjudicating habeas corpus petitions. See generally Wilson, 138 S. Ct. at 1194-95; Richter, 562
U.S. at 98-100; Coleman, 501 U.S. at 738-40; Long, 463 U.S. at 1038-41; see, e.g., Curiel v.
Miller, 830 F.3d 864, 877 (9th Cir. 2016) (Bybee, J., concurring) (“express[ing] . . . frustration
that communication between the California Supreme Court and our court over the proper
interpretation of California state habeas decisions has devolved into a series of hints that the
California Supreme Court obliquely telegraphs and that we struggle to decipher”); Castro v.
Klinger, 373 F.2d 847, 850 (9th Cir. 1967) (“From our standpoint, the failure of the California

28
12

1
2
3

court to reveal the basis of its denial, whether substantive or procedural, is unfortunate.”).
Accordingly, respondent has shown that California’s timeliness bar was “adequate” as
applied to the claims at issue.

4

B.

Independence

5

Petitioner next argues that California’s timeliness bar does not deserve deference because

6

it is not independent of federal law, since the state court would need to consider federal law in

7

determining at what point the petitioner learned of facts suggesting a prima facie case of a federal

8

constitutional violation, whether good cause existed to justify a substantial delay due to counsel’s

9

investigation into a federal constitutional claim, and whether petitioner’s counsel’s

10

ineffectiveness (under the federal constitutional standard) constituted good cause to justify the

11

delay. ECF No. 85 at 38-43. For these reasons, per petitioner, the state court must resolve

12

questions that are “interwoven with the federal law,” id. at 37 (citing Michigan v. Long, 463 U.S.

13

1032, 1040-41 (1983)), when determining whether a habeas corpus petition was timely filed as a

14

matter of state procedural law.

15

Many of petitioner’s arguments have been foreclosed by the Ninth Circuit. In Bennett v.

16

Mueller, 322 F.3d 573 (9th Cir. 2003), the Ninth Circuit considered the California Supreme

17

Court’s application of timeliness bars in habeas corpus cases after August 3, 1998, and concluded

18

that this bar “is not interwoven with federal law, [but] it is an independent state procedural

19

ground” for the denial of a claim. 322 F.3d at 581. The Ninth Circuit observed that, prior to that

20

date, the California Supreme Court had “previously considered the federal constitutional merits of

21

the petitions in determining whether the petitions qualified for an exception to the rule of

22

procedural default.” Id. On August 3, 1998, however, the California Supreme Court issued its

23

decision in Robbins, 18 Cal. 4th 770, in which it expressly disavowed this practice. It held that,

24

when applying any of the first three exceptions set forth in Clark, 5 Cal. 4th at 797-98, it would

25

consider state law.7 Robbins, 18 Cal. 4th at 812 n.32; see Bennett, 322 F.3d at 582. Moreover,

26
27
28

7

As noted above, under Clark, the California courts may choose not to apply the
timeliness bar to a habeas petition filed with an unjustified, substantial delay if (i) a constitutional
error created a trial so fundamentally unfair that, absent the error, no reasonable judge or jury
would have convicted the petitioner; (ii) the petitioner is innocent; (iii) the sentencing judge or
13

1

when considering the first Clark exception—whether the error “constitutes ‘error of constitutional

2

magnitude’ leading to ‘a trial that was so fundamentally unfair that absent the error no reasonable

3

judge or jury would have convicted the petitioner,’” Robbins, 19 Cal. 4th at 811 (quoting Clark, 5

4

Cal. 4th at 811)—it specifically would “assume, for the purpose of addressing the procedural

5

issue, that a federal constitutional error is stated” and then determine if, as a matter of state law,

6

such an error was of the nature as to satisfy the remaining language of the exception. Robbins, 19

7

Cal. 4th at 811. The Ninth Circuit rejected the argument that the California Supreme Court’s

8

consideration of the state constitutional basis for habeas claims necessarily implicated comparable

9

federal constitutional principles. Bennett, 322 F.3d at 582.

10

Petitioner argues that Bennet’s holding—though ostensibly broad—should be understood

11

as limited to the Clark exceptions, since that was all that was at issue in Bennett. ECF No. 85 at

12

41. This argument is unpersuasive. Although a Clark exception was at issue in Bennett, in

13

Robbins—the case on which Bennett relied—the California Supreme Court’s holding was not so

14

limited. Instead, in Robbins the California Supreme Court considered each step in the timeliness

15

analysis—whether the petition was brought without substantial delay; whether substantial delay

16

could be justified for good cause; and whether petitioner’s unjustified, substantial delay should be

17

excused under Clark—by relying on petitioner’s factual allegations concerning his knowledge of,

18

and ability to have developed and investigated, “potentially meritorious habeas corpus claims.”

19

Robbins, 18 Cal. 4th at 809. In other words, the state court in applying this bar does not consider

20

whether the claim is actually meritorious under federal law, but rather whether it is potentially so.

21

See also Gallego, 18 Cal. 4th at 833 (explaining that habeas corpus counsel should investigate

22

potential claims for relief where “a petitioner or counsel knows or should know . . . of triggering

23

facts—i.e., facts sufficient to warrant further investigation, but insufficient to state a prima facie

24

case for relief”). To conduct its timeliness analysis, the state court’s focus is on whether the

25
26
27
28

jury had such a grossly misleading profile of the petitioner that absent the error, no reasonable
sentencer would have imposed a sentence of death; or (iv) “the petitioner was convicted or
sentenced under an invalid statute.” Clark, 5 Cal. 4th at 797-98. In Bennett, as here, petitioner
did not invoke the fourth Clark exception. Bennett, 322 F.3d at 582 n.1; see LD 30 at 13-14; ECF
No. 32 at 14-16.
14

1

petitioner has sufficiently alleged that his development of such a potentially meritorious claim

2

was stymied in some way; in assessing these allegations, the state court considers only whether

3

the petitioner has alleged with sufficient particularity the facts demonstrating that the petition

4

should be deemed timely or that its delay should be considered justified. Robbins, 18 Cal. 4th at

5

795-96, 805-09 & nn.16, 21, 28, 29; see also Clark, 5 Cal. 4th at 765, 779 & n.5. Hence, in

6

making this determination, the state court does not evaluate the merits of a claim pleading a

7

violation of federal constitutional law; its conclusion that a petition was unjustifiably delayed is

8

not interwoven with questions of federal law.

9

Petitioner further argues that California’s timeliness bar is not independent because the

10

question of whether habeas corpus counsel’s ineffectiveness caused a substantial delay in filing a

11

habeas petition is interwoven with federal law, as the standard for ineffectiveness in this context

12

relies on federal law. This position is similarly unavailing. Although in Robbins, the California

13

Supreme Court cited United States Supreme Court authority in describing the standard for

14

ineffective assistance of counsel, it also relied on the state-law standard of ineffectiveness,

15

flowing from the California constitution. See Robbins, 18 Cal. 4th at 810 (citing In re Harris, 5

16

Cal. 4th 813, 833 (1993)). Ergo, even if these standards are equivalent, the state court need not

17

determine whether federal constitutional law has been violated in order to apply vel non the

18

procedural bar. See Bennett, 322 F.3d at 582; see, e.g., In re Sanders, 21 Cal. 4th 697, 719-24

19

(1999). To the extent that the California courts do consider federal law in determining whether

20

habeas counsel’s ineffectiveness constituted good cause for substantial delay, the California

21

Supreme Court has indicated that it only considers whether petitioner’s allegations set forth a

22

prima facie claim of ineffective assistance of counsel. Robbins, 18 Cal. 4th at 810; see also

23

Sanders, 21 Cal. 4th at 719-24. In Bennett, the Ninth Circuit held that that assessment—i.e., the

24

determination of whether there exists a prima facie claim for relief under federal law—does not,

25

alone, indicate that the procedural bar is dependent on federal law. See Bennett, 322 F.3d at 581

26

(holding that the timeliness bar is independent of federal law even where the state court measures

27

delay “‘from the time the petitioner or counsel knew, or reasonably should have known, of the

28

information offered in support of the claim and the legal basis for the claim’” (quoting Robbins,
15

1

18 Cal. 4th at 787)); see also id. (quoting Clark, 5 Cal. 4th at 765 n.5 (“‘Delay in seeking habeas

2

corpus . . . relief has been measured from the time a petitioner becomes aware of the grounds on

3

which he seeks relief.’”)).

4

Accordingly, respondent has shown that, at the time of the purported timeliness default

5

occurred, California’s timeliness bar was independent of federal law. Because it was both

6

independent and adequate at the time of the state court determination, the timeliness bar

7

presumptively applies to claims 1.A, 1.D (to the extent it alleges ineffective assistance of

8

counsel), 1.E.2, 2.A, 2.B, 2.C, 2.D, 2.E, 3, 4, 5.A, 5.B, 5.C, 5.D, 5.E.1, 5.F.2, 5.F.4, 5.G, 5.H, 5.I,

9

5.K, 5.L, 5.M, 5.N, 5.O, 6.C, 7.A, 7.C, 7.D, 9, 10.A, 19.B, 19.C, 21.B, 27, and 31 of the Petition

10
11
12

for Writ of Habeas Corpus.
IV.

Successor Bar
Respondent argues that this court is barred from considering claims 1.A, 1.C, 1.D (to the

13

extent it alleges ineffective assistance of counsel), 1.F, 2.A, 2.B, 2.C, 2.D, 2.E, 3, 4, 5.A, 5.B, 5.C,

14

5.D, 5.E.1, 5.F.2, 5.F.4, 5.G, 5.H, 5.I, 5.K, 5.L, 5.M, 5.N, 5.O, 6.C, 7.A, 7.C, 7.D, 9, 10.A, 19.B,

15

19.C, 21.B, and 27 because the state court properly denied these claims as successive, i.e., they

16

could have been raised in a prior petition for writ of habeas corpus but were not. ECF No. 56 at

17

2-199; ECF No. 73 at 1. Petitioner does not dispute that these claims were denied as successive,

18

but, as with the timeliness bar, argues that this procedural bar is not adequate under Coleman, 501

19

U.S. at 729, because it is applied for the purpose of evading federal review of constitutional

20

claims and serves no legitimate state interest. ECF No. 85 at 15-26. He further argues that this

21

bar is not independent of federal law on the same grounds that he had raised in challenging

22

California’s timeliness bar. ECF No. 85 at 43-45. The undersigned concludes that respondent

23

has shown that the successor bar, as applied here, is both independent and adequate.

24

In California, a habeas corpus petitioner must “present all known claims in a single,

25

timely petition for writ of habeas corpus.” Clark, 5 Cal. 4th at 767. Thus, “absent a change in the

26

applicable law or the facts, the court will not consider repeated applications for habeas corpus

27

presenting claims previously rejected. . . . [and] refuse[s] to consider newly presented grounds for

28

relief which were known to the petitioner at the time of a prior collateral attack on the judgment.”
16

1

Id. at 767-68 (internal citations omitted); see also In re Morgan, 50 Cal. 4th 932, 945 (2010) (in

2

habeas corpus cases, “all known claims must be brought in a single, timely habeas corpus

3

petition”).

4

To show that California’s successor bar is adequate, respondent must show that it was

5

clear, well-established, and consistently applied in capital cases at the time of the state court

6

adjudication. See Bennett, 322 F.3d at 586. Respondent has pled that the successor bar is an

7

independent and adequate procedural bar, thus meeting his initial burden. See ECF No. 56 at 4;

8

Bennet, 322 F.3d at 585-86.

9

Petitioner challenges the adequacy of the successor bar on the same grounds on which he

10

challenges the timeliness bar. ECF No. 85 at 15-26. As petitioner notes, the California courts’

11

timeliness bar and successor bars are closely connected, as very often a successive petition is also

12

untimely. ECF No. 85 at 2 n.4, 44-45 (citing Carpenter v. Ayers, 548 F. Supp. 2d 736, 755-56

13

(N.D. Cal. 2008), and Dennis v. Brown, 361 F. Supp. 2d 1124, 1135 (N.D. Cal. 2005)); see Clark,

14

5 Cal. 4th at 770 (“A successive petition presenting additional claims that could have been

15

presented in an earlier attack on judgment is, of necessity, a delayed petition.”). Nonetheless, the

16

legal analysis of these two bars must be, at present, distinct, since the Supreme Court and Court

17

of Appeals have determined that California’s timeliness bar is independent and adequate, but no

18

such authority, exists regarding the adequacy and independence of California’s successor bar.

19

See Walker, 562 U.S. 307; Bennett, 322 F.3d 573.

20

Despite this, the undersigned is not persuaded by petitioner’s argument that, as with the

21

timeliness bar, the successor bar is not adequate because it serves no legitimate state interest and

22

is employed principally to stymie federal review of constitutional claims. ECF No. 85 at 15-26.

23

Like the timeliness bar, the successor bar promotes the state’s interest in efficient, prompt

24

resolution of challenges to criminal convictions and sentences. See In re Friend, 11 Cal. 5th 720,

25

728 (2021), as modified (Sept. 1, 2021) (the “successiveness bar was ‘designed to ensure

26

legitimate claims are pressed early in the legal process’” (internal citation omitted)); id. at 737

27

(the successiveness bar seeks “to ‘permit the resolution of legitimate claims in the fairest and

28

most efficacious manner possible’” (internal citation omitted)); Clark, 5 Cal. 4th at 770
17

1

(“Willingness by the court to entertain the merits of successive petitions seeking relief on the

2

basis of the same set of facts undermines the finality of the judgment. Moreover, such piecemeal

3

litigation prevents the positive values of deterrence, certainty, and public confidence from

4

attaching to the judgment.”). And the California Supreme Court’s practice of invoking the

5

successor bar as an alternative holding when also denying petitions on their merits does not

6

indicate that the bar is invoked to preclude federal review of constitutional claims; the court has

7

legitimate reasons for utilizing and articulating alternative holdings, as described above.

8
9

In passing, petitioner identifies certain district court cases holding that California’s
successor bar is not adequate because it is not consistently applied in capital cases. ECF No. 85

10

at 44-45 (citing Dennis v. Brown, 361 F. Supp. 2d 1124 (N.D. Cal. 2005) and Carpenter v. Ayers,

11

548 F. Supp. 2d 736, 755-56 (N.D. Cal. 2008), reconsideration granted on other grounds sub

12

nom. Carpenter v. Chappell, No. C 98-2444 MMC, 2014 WL 4684848 (N.D. Cal. Sept. 19,

13

2014)). These cases are inapposite; they both considered the adequacy of procedural defaults

14

purportedly occurring prior to the California Supreme Court’s 1998 decision in Robbins, wherein

15

the California Supreme Court expressly indicated that, going forward, it would “apply the

16

successiveness rule when . . . faced with a petitioner whose prior petition was filed after the date

17

of finality of Clark [in 1993].” Robbins, 18 Cal. 4th at 788 n.9; see Carpenter, 548 F. Supp. 2d at

18

755 (purported successive petition default occurred in 1996); Dennis, 361 F. Supp. 2d at 1130

19

(same). Unlike the petitioners in Dennis and Carpenter, petitioner here has not “assert[ed]

20

specific factual allegations that demonstrate the inadequacy of the state procedure, including

21

citation to authority demonstrating inconsistent application of the rule,” see Bennett, 322 F.3d at

22

586, at the time his purported default occurred, in 2002, several years after Robbins’

23

pronouncement. See Dennis, 361 F. Supp. 2d at 1130-31 (describing data petitioner tendered to

24

show inconsistent application of successor bar by California Supreme Court in relevant time

25

period); Carpenter, 548 F. Supp. 2d at 755-56 (relying on Dennis). As such, petitioner has not

26

met his burden to rebut respondent’s assertion that the successor bar is adequate as applied to

27

petitioner. See Bennett, 322 F.3d at 585-86.

28

Petitioner’s arguments challenging the independence of the successor bar are no more
18

1

persuasive than they were when asserted against California’s timeliness bar. In denying the

2

claims at issue as successive, the California Supreme Court expressly invoked only state

3

procedural rules, citing only Robbins, 18 Cal. 4th at 788 n.9; Clark, 5 Cal. 4th at 767-68; and In

4

re Horowitz, 33 Cal. 2d 534, 546-47 (1949), showing that it was not relying on federal law as a

5

basis for this denial. See Vang v. Nevada, 329 F.3d 1069, 1074-75 (9th Cir. 2003). Petitioner has

6

not shown that the California Supreme Court’s application of the successor bar is “interwoven

7

with” application of federal law. See Long, 463 U.S. at 1040-41. In Robbins, the California

8

Supreme Court indicated that, as with the timeliness bar, in applying the successor bar it would

9

not examine the merits of a constitutional claim, but rather only consider the factual allegations

10

made indicating at the time the factual basis for a prima facie case became known to petitioner.

11

See Robbins, 18 Cal. 4th at 787-88 & n.9; see generally Friend, 11 Cal. 5th at 728, 730-31

12

(California Supreme Court undertakes same Clark analysis in applying a successor bar as it does

13

in applying a timeliness bar). This, then, presents a situation indistinguishable from that raised in

14

Bennett, where the Ninth Circuit held that such an analysis does not suffice to demonstrate that

15

the state procedural bar is dependent on resolution of federal law. See Bennett, 322 F.3d at 582.

16

Respondent has therefore shown that, at the time of the purported default, California’s

17

successor bar was both independent of federal law and adequate. This default, then, applies to

18

claims 1.A, 1.D (to the extent it alleges ineffective assistance of counsel), 2.A, 2.B, 2.C, 2.D, 2.E,

19

3, 4, 5.A, 5.B, 5.C, 5.D, 5.E.1, 5.F.2, 5.F.4, 5.G, 5.H, 5.I, 5.K, 5.L, 5.M, 5.N, 5.O, 6.C, 7.A, 7.C,

20

7.D, 9, 10.A, 19.B, 19.C, 21.B, and 27 of the Petition for Writ of Habeas Corpus, unless

21

petitioner can show reasons for excusing the default, as discussed post.

22

V.

Application of the Timeliness Bar or Successor Bar to Claims 1.C and 1.F

23

Petitioner argues that the federal courts should not defer to the timeliness or successor

24

bars applied to claims 1.C and 1.F in his second state habeas corpus proceedings, because the

25

California Supreme Court applied these bars in error as a matter of state law—since, per

26

petitioner, both of these subclaims had been raised in his first state petition. ECF No. 85 at 7-9.

27

Review of the record indicates that petitioner is correct: the state court improperly invoked

28

procedural bars against these subclaims when they were raised in his second petition for writ of
19

1

habeas corpus, and therefore this court should not defer to those procedural bars. See, e.g., James

2

v. Kentucky, 466 U.S. 341, 351 (1984) (holding that a habeas corpus claim was not barred from

3

federal court review on the basis of the state court’s application of a procedural bar where the

4

record revealed that the petitioner had not violated the relevant state procedural rule); Sivak v.

5

Hardison, 658 F.3d 898, 907 (9th Cir. 2011) (“Here, the state court applied the state’s procedural

6

rule to [petitioner’s] case in an erroneous and arbitrary manner. Thus, we follow the Supreme

7

Court and our sister circuits in holding that an erroneously applied procedural rule does not bar

8

federal habeas review.”).

9

The record indicates that petitioner had presented in his first state petition the same

10

fundamental legal theory and factual allegations that comprise subclaim 1.C. in his Petition for

11

Writ of Habeas Corpus in this Court. In claim 1.C, petitioner alleges that juror Edmonds was

12

actually biased against him because he had a strong emotional reaction to the evidence presented

13

at the guilt phase, indicating a “‘substantial emotional involvement’ with the case for which he

14

should have been disqualified, because, over the course of the trial, he indicated that the

15

homicides were difficult to contemplate because they persistently reminded him of the death of

16

his sister-in-law. ECF No. 29 at 28-30 (citing Bayrmoglu v. Estelle, 806 F.2d 880, 889 n.10 (9th

17

Cir. 1986) and United States v. Allsup, 566 F.2d 68, 71 (9th Cir. 1977)). In his first state petition,

18

he also had alleged that there was a substantial likelihood of juror Edmonds’ bias against him, due

19

to his failure to have revealed to the trial court the distress that he experienced when the homicide

20

of Ms. Cimmino reminded him of his deceased sister-in-law. LD 30 at 36-41. There, petitioner

21

alleged that Mr. Edmonds’ non-disclosure reflected both actual bias and implied bias, the latter

22

theory reflecting that, because Mr. Edmonds’ non-disclosure appeared willful, his actual bias

23

could be presumed. LD 30 at 36, 43-44. In his informal reply brief in state court, petitioner

24

clarified that “the existence of actual bias vel non is the question” at the crux of the subclaim. LD

25

33 at 5.

26

The record does not support respondent’s characterization that, in state court, petitioner

27

had only asserted a claim of implied bias, not actual bias. ECF No. 73 at 1. Instead, the record

28

demonstrates that, in both his petition and reply in support of his petition, he characterized this
20

1

subclaim as alleging that juror Edmonds was actually biased. LD 30 at 36; LD 33 at 5.

2

Consistent with jurisprudence, he argued that the totality of juror Edmonds’ conduct during voir

3

dire and during the trial indicated a failure to be forthcoming, which may be treated as

4

presumptive evidence of actual bias. LD 30 at 36, 43-44 (citing Dyer v. Calderon, 151 F.3d 970,

5

981-82 (9th Cir. 1998)). In sum, the record reflects that the allegations contained in subclaim 1.C

6

were fairly presented to the state court in petitioner’s first state petition. See generally Duncan v.

7

Henry, 513 U.S. 364, 365-66 (1995) (per curiam) (holding that, to exhaust a federal habeas

8

corpus claim, a petitioner must explicitly present to the state court his legal theory setting forth

9

the federal constitutional provision that he alleges was violated, as well as the factual basis for his

10

claim); Vasquez v. Hillery, 474 U.S. 254, 260 (1986) (stating that federal courts will treat a

11

habeas claim as exhausted so long as any additional allegations made in the federal proceeding

12

did not “fundamentally alter the legal claim already considered by the state courts”).

13

Consequently, the state court was in error when it applied the timeliness and successor bars to

14

subclaim 1.C, after petitioner had reasserted the allegations comprising this subclaim in his

15

second state petition for writ of habeas corpus. See ECF No. 32 at 51-54; LD 40 at 1. As such, it

16

would be improper for this court to defer to the state court’s denial of relief on these allegations

17

on the basis that they were raised untimely and in a successive habeas corpus petition. See James,

18

466 U.S. at 351; Sivak, 658 F.3d at 907.

19

The same result obtains for subclaim 1.F. In claim 1.F, petitioner alleges that juror

20

Edmonds should have been disqualified due to the aggregate effect of the bias alleged in claim

21

1.C, his racial bias, and his knowledge of petitioner’s prior convictions and death sentence. ECF

22

No. 29 at 37-38. In his first state petition, petitioner alleged that the totality of the record,

23

including the bias alleged in claim 1.C and his racial bias, demonstrated a “substantial likelihood

24

that juror Edmonds was . . . actually biased against” him. LD 30 at 44. As with his allegations

25

comprising now-subclaim 1.C, petitioner argued that the totality of Mr. Edmonds’ conduct,

26

including his failure to be forthcoming with the trial court, raised a presumption of prejudice. LD

27

30 at 43-44. Thus, it is not the case, as respondent argues, that petitioner had “only asserted

28

implied bias based on juror misconduct.” See ECF No. 73 at 1. And, when petitioner re-raised
21

1

these allegations as subclaim 1.F in his second state petition, see ECF No. 32 at 63-64, the state

2

court erred in concluding that these allegations had not been previously raised, and that they were

3

thus barred as untimely and successive, see LD 40 at 1, and these procedural bars are not entitled

4

to deference by this court, see James, 466 U.S. at 351; Sivak, 658 F.3d at 907.

5

For these reasons, respondent has not shown that subclaims 1.C and 1.F should be

6

dismissed due to the California Supreme Court’s application of procedural bars against these

7

subclaims when they were raised in petitioner’s second state petition. Respondent’s motion

8

should be denied as to these subclaims.

9

VI.

Claims That Could Have Been Raised on Appeal

10

Respondent argues that the state court properly denied claims 3, 4, 7.A, 7.C, 7.D, 9, 10.A,

11

and 21.B on the grounds that they could have been raised on appeal but were not. ECF No. 56 at

12

28-33, 71-75, 76-86, 92-94. Petitioner argues that, as with the timeliness and successor bars, this

13

bar serves no legitimate state interest and is applied by the California Supreme Court to frustrate

14

federal courts’ review of constitutional claims. ECF No. 85 at 15-26. Petitioner also argues that

15

this procedural bar is not independent of federal law because, under California jurisprudence, the

16

California courts may opt not to apply it when the error asserted reflects a fundamental

17

constitutional error. ECF No. 85 at 47. The undersigned concludes that respondent has shown

18

that this bar merits deference for the claims at issue.

19

As with the successor bar, a habeas claim may be defaulted because it could have been

20

raised on direct appeal but was not. See In re Dixon, 41 Cal. 2d 756, 759 (1953). This is

21

commonly referred to as the “Dixon bar.” See, e.g., Johnson v. Lee, 578 U.S. 605, 606 (2016)

22

(per curiam).

23

The United States Supreme Court has foreclosed petitioner’s argument that the Dixon bar

24

is not adequate under Coleman. In Johnson, 578 U.S. at 606, the Supreme Court reviewed the

25

California Supreme Court’s application of the Dixon bar, where the default purportedly had

26

occurred in 1999, and concluded that it is “adequate” because it “is longstanding, oft-cited, and

27

shared by habeas courts across the Nation.” It further held that there were no indications “that

28

California courts apply the Dixon bar in a way that disfavors federal claims.” Id. at 609. Here,
22

1

petitioner offers no data to contradict this conclusion, as of the year 2000, the time of his

2

purported default. See ECF No. 85 at 15-26; see also LD 21 (opening brief on direct appeal filed

3

in 2000). He gains no traction with his argument that the California Supreme Court’s practice of

4

invoking this bar—as well as, in the alternative, denying a claim on the merits—reflects that it

5

has the purpose of frustrating federal review of federal claims. As with the successor bar, the

6

application of the Dixon bar serves the state interests of promoting finality and timely

7

administration of justice post-judgment. Johnson, 578 U.S. at 611-12; Robbins, 18 Cal. 4th at

8

778 n.1. And, as described above, nefarious motive cannot be inferred from a court’s articulation

9

of alternative bases for its judgments. In sum, because respondent has pled that the Dixon bar is

10

adequate, see ECF No. 56 at 29, and petitioner has not met his burden to show that it is not, the

11

undersigned concludes that the Dixon bar is adequate within the meaning of Coleman, 501 U.S. at

12

750.

13

The Dixon bar is also independent of federal law. Although the Ninth Circuit had

14

previously held that it was not, that decision predated Robbins. See Park v. California, 202 F.3d

15

1146, 1152-53 (9th Cir. 2000). In Robbins, the California Supreme Court acknowledged that,

16

while its application of the Dixon bar impliedly reflected that it had rejected the “fundamental

17

constitutional error” exception to the bar, it “would no longer determine whether an error alleged

18

in a state petition constituted a federal constitutional violation.” Robbins, 18 Cal. 4th at 811-12 &

19

n.34; see Bennett, 322 F.3d at 581; cf. Park, 202 F.3d at 1152-53 (explicitly confining its holding

20

to cases predating Robbins). While this pronouncement was made specifically regarding the

21

application of the timeliness bar, see Robbins, 18 Cal. 4th at 811-12, 814, it seems appropriately

22

applied to the Dixon bar as well. The California Supreme Court had previously recognized that

23

the Dixon bar is intimately linked to the timeliness bar, as they have a common purpose: to avoid

24

unnecessary delay in the achievement of finality in criminal cases and to encourage convicted

25

persons to promptly pursue any remedies available to them. In re Harris, 5 Cal. 4th 813, 825-29

26

& n.3 (1993); see also Robbins, 18 Cal. 4th at 814 n.34 (citing same). In Robbins, the California

27

Supreme Court explained that it was “aware that federal courts will not honor bars that rest

28

‘primarily’ on resolution of the merits of federal claims, or that are ‘interwoven’ with such
23

1

claims,” 18 Cal. 4th at 812 n.32 (quoting Coleman, 501 U.S. at 734-36), and for that reason, it

2

would not engage in a merits analysis of federal constitutional law as a basis for rejecting a

3

habeas corpus claim as untimely. 18 Cal. 4th at 811-12. The Ninth Circuit has understood this

4

holding to reflect that “[t]he purpose of this approach was to establish the adequacy and

5

independence of the State Supreme Court’s future Dixon /Robbins rulings and to indicate that a

6

prisoner seeking collateral relief with respect to new federal claims no longer had any recourse to

7

exhaust in the state courts.” Park, 202 F.3d at 1153 n.4. Hence, after Robbins, California courts

8

apparently apply the Dixon bar exceptions without examination of the merits of any federal

9

constitutional allegations. See Roybal v. Davis, 148 F. Supp. 3d 958, 987 (S.D. Cal. 2015)

10

(concluding same); Protsman v. Pliler, 318 F. Supp. 2d 1004, 1006-08 (S.D. Cal. 2004) (same).

11

The undersigned, therefore, finds that, at the time of the purported default, the Dixon bar was

12

applied in manner independent of federal law.

13

Respondent has therefore shown that, at the time of the purported default, California’s

14

Dixon bar was both adequate and independent of federal law. This default, then, applies to claims

15

3, 4, 7.A, 7.C, 7.D, 9, 10.A, and 21.B of the Petition for Writ of Habeas Corpus, unless petitioner

16

can show reasons to excuse the default, as discussed post.

17

VII.

Claims That Have Been Raised and Rejected in Prior Proceedings

18

Respondent argues that four claims in petitioner’s second state petition were denied by the

19

California Supreme Court as having been raised and rejected in prior proceedings. These include

20

the claim respondent identifies as 1.E.2, as well as claims 7.B, 11, and 28.

21

A. Claim 1.E.2

22

In claim 1.E in his second state petition, petitioner alleged that juror Edmonds committed

23

misconduct by, first, discussing with other jurors a photograph of the victim and, second, by

24

discussing his sister-in-law’s death. ECF No. 32 at 60-63. The latter allegation respondent

25

describes as “claim 1.E.2.” ECF No. 56 at 11-15; see ECF No. 85 at 1 n.2. Respondent argues

26

that the allegations comprising claim 1.E.2 were procedurally defaulted by the state court’s denial

27

of petitioner’s second state petition on several grounds: “because it was ‘untimely,’ ‘raised and

28

rejected on appeal,’ and ‘raised and rejected in petitioner’s prior petition for writ of habeas corpus
24

1
2

(S117268).’” ECF No. 56 at 13 (citing LD 40 at 1).
Review of the record does not support respondent’s argument that these allegations were

3

denied in state court because they had been raised and rejected on appeal. In addressing claim

4

1.E, the California Supreme Court ruled that the subclaim in its entirety was denied on the merits

5

and as untimely; “with respect to Edmonds’s request during trial,” was denied for having been

6

raised and rejected on appeal; and “with respect to Edmonds’s comment during deliberations,”

7

was denied for having been raised and rejected in a prior petition for writ of habeas corpus. LD

8

40 at 1. Thus, the record indicates that the allegations identified now as subclaim 1.E.2—alleging

9

that Edmonds made improper comments during deliberations about his sister-in-law—was not

10

denied on the basis that it was raised and rejected on appeal. Respondent, therefore, fails to meet

11

his burden to show that this particular bar precludes the federal court’s consideration of the claim.

12

See Bennett, 322 F.3d at 585-86.

13

To the extent that the California Supreme Court denied relief on these allegations because

14

they had been previously raised and rejected in an earlier habeas corpus proceeding, this does not,

15

without more, preclude federal review. Where a state court has ruled that it would not entertain

16

repeated habeas corpus claims, that ruling “neither rests upon procedural default nor lifts a pre-

17

existing procedural default, [and] its effect upon the availability of federal habeas is nil.” Ylst v.

18

Nunnemaker, 501 U.S. 797, 804 n.3 (1991). Instead, the federal court “should look through the

19

later decision to the last reasoned state court opinion” as constituting the reasons for the state

20

court denial. Id. at 804. Here, therefore, although the California Supreme Court denied the

21

allegations comprising claim 1.E.2 because, inter alia, the allegations had been previously raised

22

and rejected in a prior habeas corpus proceeding, that ruling does not constitute a procedural bar

23

that precludes this court’s review of the allegations.8 See id. at 804 n.3.

24
25
26
27
28

Consequently, although respondent has shown that, facially, the state court’s application
of a timeliness bar on the allegations comprising claim 1.E.2 is entitled deference by this court, as
8

Respondent makes no argument either as to the basis on which the state court had denied
relief on these allegations in petitioner’s first state habeas corpus proceeding, or that that denial—
whatever its basis—was such that it precludes this court’s merits review of the subclaim. See
ECF No. 56 at 13-15.
25

1

explained supra, he has not shown that this court should deny the subclaim summarily either

2

because it had been raised and rejected on appeal, or because it had been raised and rejected in a

3

first habeas corpus proceeding, prior to having been raised and rejected in petitioner’s second

4

state court habeas corpus proceeding.

5

B. Claims 7.B, 11, and 28

6

Respondent asserts that claims 7.B, 11, and 28 were procedurally defaulted by the state

7

court on the independent and adequate grounds that petitioner failed to object or seek a remedy in

8

the trial court when the purported errors occurred, commonly referred to as the contemporaneous

9

objection rule. ECF No. 56 at 75, 86, 97. Petitioner argues that this rule is not adequate, because

10

it was not firmly established and regularly applied at the time of his trial, and because it is not

11

independent of federal law. ECF No. 89 at 27-37, 48-49. The undersigned concludes that

12

respondent has met his burden to show that these claims are procedurally barred.

13

Claims 7.B, 11, and 28 of the Petition for Writ of Habeas Corpus were all raised twice in

14

the state court: first on direct appeal and again in petitioner’s second petition for writ of habeas

15

corpus. ECF No. 32 at 249-51, 277-79, 376-78; LD 21 at 153-62, 185-89, 261-65. In denying

16

the claims in habeas corpus, the California Supreme Court ruled that they had been previously

17

raised and rejected on direct appeal. LD 40 at 1.9 Pursuant to Ylst, 501 U.S. at 804, therefore,

18

this court considers whether the default asserted on direct appeal is entitled to deference. On

19

direct appeal, the California Supreme Court denied each of these claims on the basis that they

20

were defaulted because petitioner did not object at trial. Holloway, 33 Cal. 4th at 129-30, 136,

21

152. Petitioner disputes neither that this default was applied nor that he failed to raise a relevant

22

objection at trial. ECF No. 85 at 28-29.

23
24

Under California statutory and decisional law, a criminal defendant must make a timely
and specific objection at trial in order to preserve a claim for appellate review. See Cal. Evid.

25
26
27
28

9

The California Supreme Court confined this ruling to all allegations comprising these
claims, except to the extent they alleged ineffective assistance of counsel. LD 40 at 1. In his
Petition for Writ of Habeas Corpus in this Court, petitioner has not advanced ineffective
assistance allegations in claims 7.B, 11, or 28, see ECF No. 29 at 176-78, 198-99, 271-73, thus
this aspect of the state habeas corpus ruling is irrelevant to the claims pending before this court.
26

1

Code § 353; People v. Ramos, 15 Cal. 4th 1133, 1171 (1997); People v. Green, 27 Cal. 3d 1, 27

2

(1980). The Ninth Circuit has repeatedly held that this rule is independent of federal law. See,

3

e.g., Fairbank v. Ayers, 650 F.3d 1243, 1256 (9th Cir. 2011); Paulino v. Castro, 371 F.3d 1083,

4

1093 (9th Cir. 2004); Melendez v. Pliler, 288 F.3d 1120 (9th Cir. 2002); cf. Fauber v. Davis, 43

5

F.4th 987, 1002 (9th Cir. 2022) (assuming without deciding that the California contemporaneous

6

objective rule was independent); Zapien v. Martel, 849 F.3d 787, 793 n.2 (9th Cir. 2016) (same);

7

Tong Xiong v. Felker, 681 F.3d 1067, 1075 (9th Cir. 2012) (same); Inthavong v. Lamarque, 420

8

F.3d 1055, 1058 (9th Cir. 2005) (same); Rich v. Calderon, 187 F.3d 1064, 1070 (9th Cir. 1999)

9

(same); Vansickel v. White, 166 F.3d 953, 957 (9th Cir. 1999) (same); Bonin v. Calderon, 59 F.3d

10

815, 842-43 (9th Cir. 1995) (same); Hines v. Enomoto, 658 F.2d 667, 673 (9th Cir. 1981) (same);

11

see also Carpenter, 548 F. Supp. 2d at 746 (“It is well-established that California’s

12

contemporaneous objection requirement is independent of federal law.”). Although petitioner

13

cites a handful of cases where the California appellate courts have failed to apply this bar, instead

14

reaching the merits of an unobjected-to federal constitutional error, see ECF No. 85 at 49, that

15

alone does not demonstrate that the bar itself relies on resolution of federal law or that it is

16

intrinsically intertwined with resolution of federal law. See Fauber, 43 F.4th at 1002; see

17

generally Walker, 562 U.S. at 316 (procedural bar may be independent and adequate even if it is

18

discretionary); cf. Carpenter, 548 F. Supp. 2d at 746-49 (aberrational cases wherein the California

19

appellate courts failed to apply the contemporaneous objection bar did not impugn the adequacy

20

or independence of the bar). Respondent has therefore met his meager burden of showing that the

21

rule is independent—and petitioner has not rebutted this showing. See Bennett, 322 F.3d at 585-

22

86.

23

Respondent has also met his burden of showing that the contemporaneous objection rule is

24

adequate. See ECF No. 56 at 86-87. Petitioner argues that it is not firmly established and

25

regularly applied because the California courts have declined to apply it in some instances and

26

have carved out exceptions to it. ECF No. 85 at 26-37. In response, respondent has directed the

27

court to a raft of California decisions in which California appellate courts have held an error

28

forfeited because it was not preserved at trial, at the time of petitioner’s trial and before. ECF No.
27

1

73 at 6; see 6 Witkin, Cal. Crim. Law 4th Rev Error §§ 45-49 (2023) (collecting cases). The

2

cumulation of these cases supports the conclusion that, in California, “the general forfeiture

3

doctrine is too well established to be questioned.” Id. § 41.

4

The Supreme Court’s decision in Walker forecloses petitioner’s argument that the

5

contemporaneous objection rule is not regularly applied, for purposes of the Coleman analysis,

6

because there have been numerous instances wherein the California courts chose not to apply it.

7

See ECF No. 85 at 31-35. In Walker, the Supreme Court held that a “discretionary state

8

procedural rule . . . can be ‘firmly established’ and ‘regularly followed,’. . . ‘even if the

9

appropriate exercise of discretion may permit consideration of a federal claim in some cases but

10

not others” and “ought not be disregarded automatically upon a showing of seeming

11

inconsistencies.” Walker, 562 U.S. at 316, 320 (quoting Beard v. Kindler, 558 U.S. 53, 60-61

12

(2009)). The instances cited by petitioner appear merely to demonstrate the exercise of discretion

13

by California appellate courts, rather than that the contemporaneous objection bar is “applied

14

infrequently, unexpectedly, or freakishly” by the California courts. See id. at 320; see also

15

Carpenter, 548 F. Supp. 2d at 746-49 (concluding same).

16

Petitioner’s descriptions of exceptions to the contemporaneous objection rule also fail to

17

show that it was not adequate. The exceptions on which petitioner relies do not apply to his

18

claims at issue, and therefore are immaterial to the question of whether this bar was adequate to

19

put him on notice of the need to object at trial. See Walker, 562 U.S. at 320 (a procedural bar

20

may be inadequate when it reflects that the reviewing court’s discretion has been exercised

21

against him in a “surprising,” “novel,” or “unforeseen” manner); Bradford v. Davis, 923 F.3d

22

599, 611 (9th Cir. 2019) (procedural bar “adequate” where the rules governing it gave petitioner

23

notice as to what he had to do to avoid its application to him); Lee v. Jacquez, 788 F.3d 1124,

24

1128 (9th Cir. 2015), rev’d on other grounds sub nom. Johnson v. Lee, 578 U.S. 605 (2016)

25

(“The adequacy requirement exists to . . . ‘ensure that [litigants] have fair notice of what they

26

must do to avoid default.’” (internal citation omitted)); Bargas v. Burns, 179 F.3d 1207, 1212 (9th

27

Cir. 1999) (a procedural bar must be “sufficiently clear as to put a petitioner on notice that he

28

must raise all claims or risk default . . . ”); Karis v. Vasquez, 828 F. Supp. 1449, 1464 (E.D. Cal.
28

1

1993) (to be adequate, procedural bar should “provide petitioners with adequate notice of the

2

circumstances that will bar their claims”); Cabrera v. Barbo, 175 F.3d 307, 313 (3rd Cir. 1999)

3

(“The reason for these requirements is that a petitioner should be on notice of how to present his

4

claims in the state courts if his failure to present them is to bar him from advancing them in a

5

federal court.”).

6

Neither claim 7.B, nor claim 11, nor claim 28 appear to implicate any of the exceptions

7

identified by petitioner, and petitioner makes no argument that they would have applied to any of

8

the claims at issue. Petitioner identifies cases in which the California appellate courts have opted

9

not to apply the contemporaneous objection rule to bar a merits review of the claim where the

10

appellant has argued: (1) inadmissible evidence was introduced that impelled the defendant to

11

testify; (2) the error concerned admissibility of statements under Miranda v. Arizona, 384 U.S.

12

486 (1966); (3) evidence of the defendant’s prior violent acts was admitted in violation of his due

13

process rights; (4) defense counsel did lodge an objection, though it was not in the proper form;

14

(5) there was indication on the record that an objection would have been futile; or (6) the claim of

15

error is premised on an unanticipated change in the law that occurred after trial. ECF No. 85 at

16

30-32. None of these circumstances, however, appear implicated by the proceedings at issue. See

17

ECF No. 29 at 176-78, 198-99, 271-73; LD 21 at 153-62, 185-89, 261-65; LD 19, Vol. 6 at 1670-

18

73, Vol. 19 at 6226-46, Vol. 22 at 7166, Vol. 23 at 7289, Vol. 25 at 8019, Vol. 26 at 8121-22; see

19

also Holloway, 33 Cal. 4th at 129-30, 136, 152. Hence, the existence of these exceptions, as

20

applied in other cases, does not demonstrate that petitioner lacked clear notice of the

21

contemporaneous objection rule as relevant to claims 7.B, 11, or 28 of the Petition for Writ of

22

Habeas Corpus.

23

In sum, respondent has shown that the contemporaneous objection rule was adequate at

24

the time of petitioner’s trial, and petitioner has not successfully rebutted this showing. See

25

Bennett, 322 F.3d at 585-86. The undersigned therefore joins a vast assemblage of jurists in

26

concluding that California’s contemporaneous objection rule satisfied Coleman’s standard at the

27

time of petitioner’s 1992 trial. See, e.g., Fauber, 43 F.4th at 1002 (1988 trial); Fairbank, 650

28
29

1

F.3d at 1256 (1989 trial)10; Zapien, 849 F.3d at 793 n.2 (1987 trial); Rich, 187 F.3d at 1070 (1980

2

trial); Bonin, 59 F.3d at 842-43 (1983 trial)11; Garrison v. McCarthy, 653 F.2d 374, 377 (9th Cir.

3

1981); Carpenter, 548 F. Supp. 2d at 746-49 (1984 trial). This court must defer to the state

4

court’s dismissal of claims 7.B, 11, and 28, unless petitioner shows a reason to disregard the

5

default, as addressed post.

6
7

VIII. Cause and Prejudice
For the claims in which respondent has asserted a procedural bar, petitioner has argued

8

that his counsel’s ineffectiveness served as cause and prejudice for this court to decline to apply

9

the bar. ECF No. 85 at 51-58. Petitioner therefore requests that, should the undersigned

10

determine that a procedural bar invoked by the state court is facially entitled to deference, the

11

undersigned defer ruling on whether cause and prejudice exist until the court proceeds to a merits

12

determination on the ineffectiveness allegations. ECF No. 85 at 56-58.

13

The Supreme Court has held that defense counsel’s ineffectiveness may constitute “cause”

14

in a cause-and-prejudice analysis, where that ineffectiveness reflected a denial of the petitioner’s

15

constitutional right to counsel. Davila v. Davis, 582 U.S. 521, 528 (2017); Edwards v. Carpenter,

16

529 U.S. 446, 451 (2000). Ergo, where the default occurred at trial, a habeas petitioner may

17

claim that his trial counsel’s ineffectiveness caused a procedural default, as he has a constitutional

18

right to effective trial counsel. See Davila, 582 U.S. at 528. Similarly, where a claim for relief

19

should have been brought on direct appeal, appellate counsel’s failure may constitute “cause” to

20

disregard a procedural default applied to that claim. Coleman v. Thompson, 501 U.S. 722, 754

21

(1991); see Trevino v. Thaler, 569 U.S. 413, 422 (2013); Martinez, 566 U.S. at 11.

22

In contrast, the federal court is more limited in its ability to recognize state habeas corpus

23

counsel’s ineffectiveness as cause for excusing a procedural default, because a convicted person

24

does not have a constitutional right to counsel in state habeas corpus proceedings. See Coleman,

25

501 U.S. at 755-56. The Supreme Court has held, however, that where a state has required

26

certain claims to be brought in state habeas corpus proceedings—rather than on direct appeal—

27
28

10
11

See People v. Fairbank, 16 Cal. 4th 1223, 1231-32 (1997).
See People v. Bonin, 43 Cal. 3d 659, 675 (1988).
30

1

and where the state habeas petitioner’s counsel has been ineffective under the Sixth Amendment

2

by failing to raise meritorious claims in that proceeding, that attorney’s ineffectiveness can

3

constitute “cause.” Martinez, 566 U.S. at 9; Trevino, 569 U.S. at 428; see also Murray v. Carrier,

4

477 U.S. 478, 488 (1986); Leeds v. Russell, 75 F.4th 1009, 1016-17 (9th Cir. 2023). One

5

limitation on this rule is that a petitioner may not rely on his habeas corpus counsel’s

6

ineffectiveness as cause to excuse the default of an underlying claim that petitioner received

7

ineffective assistance of counsel on appeal. Davila, 582 U.S. at 528-38.

8
9

The Supreme Court has recently acknowledged restrictions on the evidence that a federal
court may consider in determining whether petitioner’s prior counsel’s ineffectiveness constitutes

10

cause to excuse a default applied to a habeas corpus claim. In Shinn v. Ramirez, 596 U.S. 366

11

(2022), the Supreme Court held that, when a petitioner has alleged ineffectiveness of his state

12

postconviction counsel as the cause to excuse the default on a claim, the evidence of that

13

ineffectiveness—i.e., the evidence on which the petitioner intends to rely to prove “cause” in a

14

cause-and-prejudice analysis—must either appear in the state court record or may only be

15

developed in federal court if petitioner shows that the requirements of 28 U.S.C. section

16
17
18
19
20
21
22
23
24
25
26
27
28
31

1

2254(e)(2)12 have been met.13

2

A. Claim 31 Must Be Dismissed

3

Considering the nature of its allegations, claim 31 must be addressed separately. In claim

4

31, petitioner alleges that he received unconstitutional ineffective counsel both on direct appeal

5

and in his state habeas corpus proceedings. ECF No. 29 at 279-81. Petitioner raised this claim in

6

his second state petition, which the California Supreme Court summarily denied on the merits and

7

as untimely. LD 40 at 1; see ECF No. 56 at 99 (arguing same). In this proceeding, petitioner

8

attacks the validity of the timeliness bar, as discussed above, and alternatively argues that the

9

timeliness bar should be excused due to his counsel’s ineffective assistance in state appellate and

10
11

habeas corpus proceedings. ECF No. 85 at 51-56.
The United States Supreme Court has explained that because “a federal habeas court may

12
13
14
15
16
17
18
19
20
21
22

12

That section provides:
(2) If the [habeas corpus] applicant has failed to develop the factual
basis of a claim in State court proceedings, the court shall not hold
an evidentiary hearing on the claim unless the applicant shows that(A) the claim relies on—
(i) a new rule of constitutional law, made retroactive to cases on
collateral review by the Supreme Court, that was previously
unavailable; or
(ii) a factual predicate that could not have been previously
discovered through the exercise of due diligence; and
(B) the facts underlying the claim would be sufficient to establish
by clear and convincing evidence that but for constitutional error,
no reasonable factfinder would have found the applicant guilty of
the underlying offense.

23
24
25
26
27
28

28 U.S.C. § 2254(e).
13
The undersigned is aware that the Supreme Court’s holding in Shinn may limit the
evidentiary mechanisms available to petitioner in proving cause and prejudice, and that the law in
effect at the time of the parties’ instant briefing may have differed. Nonetheless, Shinn binds this
court. Should petitioner wish for this court to consider additional factual allegations in support of
his cause-and-prejudice arguments, any such allegations would need to be exhausted in the state
court, or petitioner would need to meet section 2254(e)’s standard. See Shinn, 596 U.S. at 38284; see, e.g., Contreras v. Broomfield, No. 1:19-cv-01523-JLT, 2024 WL 86604 (E.D. Cal. Jan. 8,
2024).
32

1

never ‘needlessly prolong’ a habeas case,” Shinn, 142 S. Ct. at 1739 (quoting Pinholster, 563

2

U.S. at 209 (Sotomayor, J., dissenting) (italics in original)), the federal court may not allow

3

evidentiary development to support the non-application of a procedural bar under the cause-and-

4

prejudice doctrine “if the newly developed evidence never would ‘entitle [the prisoner] to federal

5

habeas relief,’” id. (quoting Shriro v. Landrigan, 550 U.S. 465, 474 (2007)), whether because the

6

ineffective assistance of counsel allegations forming petitioner’s cause and prejudice argument

7

are somehow flawed, or because the underlying habeas corpus claim itself is meritless. Shinn,

8

142 S.Ct. at 1737, 1739; see also Coleman, 501 U.S. at 755. Here, both circumstances are

9

present, requiring dismissal of this claim.

10

To the extent claim 31 alleges that petitioner was denied a federal constitutional right to

11

effective state habeas corpus counsel, those allegations must be dismissed as non-cognizable.

12

There is no constitutional right to counsel in state post-conviction proceedings, let alone effective

13

counsel. Davila, 582 U.S. at 529; Murray v. Giarratano, 492 U.S. 1 (1989) (plurality opinion);

14

see Shinn, 142 S.Ct. at 1735. Therefore, petitioner’s allegations do not state a claim on which

15

relief could be granted, as a matter of law, and these allegations should be dismissed at this stage.

16

See Shinn, 142 S.Ct. at 1739; Schriro, 550 U.S. at 474-75; Franklin v. Johnson, 290 F.3d 1223,

17

1232 (9th Cir. 2002); see Bell v. Cone, 543 U.S. 447, 451 n.3 (2005).

18

To the extent claim 31 alleges that petitioner was denied his federal constitutional rights to

19

effective counsel on direct appeal, these allegations must be dismissed because, for this specific

20

type of claim, the United States Supreme Court has held that defense counsel’s ineffectiveness

21

cannot constitute cause and prejudice to excuse procedural default. In Davila, 582 U.S. 521, the

22

Court considered this issue specifically, holding that the federal courts are not empowered, under

23

the cause-and-prejudice doctrine, “to hear a substantial, but procedurally defaulted, claim of

24

ineffective assistance of appellate counsel when a prisoner’s state postconviction counsel

25

provides ineffective assistance by failing to raise that claim.” 582 U.S. at 529. Consequently,

26

because these allegations are facially barred under California’s timeliness doctrine and

27

petitioner’s theory of cause and prejudice to excuse the default is foreclosed as a matter of law,

28

this court must grant respondent’s motion as to claim 31, to the extent it that alleges ineffective
33

1

assistance of appellate counsel. See Shinn, 142 S.Ct. at 1739; Schriro, 550 U.S. at 474-75; Hurles

2

v. Ryan, 914 F.3d 1236 (9th Cir. 2019).

3

In sum, because some of the allegations of claim 31 fail to state a claim of federal

4

constitutional error, and the remaining allegations cannot be excused from their procedural

5

default, respondent’s motion should be granted as to claim 31, and the claim should be dismissed

6

in its entirety.

7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27

B. Claims For Which State Habeas Counsel’s Ineffectiveness Would Be the Cause to
Excuse Procedural Default
As described above, the California Supreme Court dismissed as procedurally barred
claims 1.A, 1.D (to the extent it alleged ineffective assistance of counsel), 1.E.2, 2.A, 2.B, 2.C,
2.D, 2.E, 3, 4, 5.A, 5.B, 5.C, 5.D, 5.E.1, 5.F.2, 5.F.4, 5.G, 5.H, 5.I, 5.K, 5.L, 5.M, 5.N, 5.O, 6.C,
7.A, 7.C, 7.D, 9, 10.A, 19.B, 19.C, 21.B, and 27 for reasons that may be attributable to the
ineffective performance of state habeas corpus counsel, ruling that these claims were untimely or
should have been raised in a prior habeas corpus proceeding, or both. LD 40 at 1. Thus, for these
claims, petitioner asserts that state habeas corpus counsel’s deficient performance caused any
default. ECF No. 85 at 52-55.
Petitioner asks that this court defer resolution of this issue until such time as it resolves the
merits of the underlying claims, since the “prejudice” element of a cause-and-prejudice analysis
would require the court to analyze the merits of the underlying constitutional claim. ECF No. 85
at 49-51. Prior to the United States Supreme Court’s decision in Shinn, that approach may have
reflected an efficient use of the court’s limited resources. See ECF No. 85 at 50 (collecting
cases). Shinn, however, restricted the Court’s consideration of evidence on the “cause” prong of
the cause-and-prejudice analysis, and such limitation seems dispositive to petitioner’s assertion of
the cause-and-prejudice exception as to claims 1.A, 1.D (to the extent it alleges ineffective
assistance of counsel), 1.E.2, 2.A, 2.B, 2.C, 2.D, 2.E, 3, 4, 5.A, 5.B, 5.C, 5.D, 5.E.1, 5.F.2, 5.F.4,
5.G, 5.H, 5.I, 5.K, 5.L, 5.M, 5.N, 5.O, 6.C, 7.A, 7.C, 7.D, 9, 10.A, 19.B, 19.C, 21.B, and 27.
Under Shinn, petitioner has two evidentiary mechanisms to prove his allegations of state

28
34

1

habeas counsel’s ineffectiveness: either such evidence must appear in the state court record, or

2

petitioner must show that he can meet section 2254(e)(2)’s requirements for an evidentiary

3

hearing in federal court. Shinn, 142 S.Ct. at 1734. In order to prove that his counsel was

4

deficient under Strickland, he must show that his state habeas corpus counsel’s performance fell

5

below an objective standard of reasonableness, i.e., that reasonably competent counsel at the time

6

would have performed differently. Padilla v. Kentucky, 559 U.S. 356, 366 (2010) (citing

7

Strickland v. Washington, 466 U.S. 668, 688 (1984)). This includes, at a minimum, some

8

showing as to why counsel undertook certain actions on behalf of petitioner and forewent others;

9

what the standard of care was at the time of state habeas counsel’s representation; or, in some

10

circumstances, that counsel’s actions were so facially unreasonable as to be necessarily deficient.

11

Strickland, 466 U.S. at 687-91; see Shinn, 142 S.Ct. at 1739-40 (recognizing that state habeas

12

counsel may have had strategic reasons for failing to present certain claims in state habeas corpus

13

proceedings); Trevino, 569 U.S. at 422-23 (recognizing factual reasons why state habeas counsel

14

may not have brought a meritorious claim); see, e.g., Michaels v. Davis, 51 F.4th 904, 934-35

15

(9th Cir. 2022).

16

The state habeas corpus record alone does not supply the information necessary to show

17

deficiency. In his second state petition, petitioner argued that any delay in his filing of claims

18

should be excused because the factual basis for some of the claims only became known to

19

petitioner after the Office of the Federal Defender was appointed to represent petitioner. ECF No.

20

32 at 12-13. He alleged that counsel representing him in his first petition for writ of habeas

21

corpus in state court had been hamstrung by the California Supreme Court’s “$25,000 limit on

22

investigation and expert assistance, which was insufficient to adequately fund the assistance

23

needed to properly develop” his habeas corpus claims. Id. at 13. In support of this allegation, he

24

tendered the declaration of Mark Greenberg, his counsel during his first state habeas corpus

25

proceeding, who declared in relevant part:

26
27
28

In 2003, at the time I filed Petitioner’s [first state] habeas petition,
the California Supreme Court placed a limit of $25,000 on funding
for all investigation and experts in capital habeas cases prior to the
issuance of an Order to Show Cause. I consulted with California
Appellate Project and was informed that a request for funding
35

1
2
3
4

beyond the $25,000 limit would be futile. I was able to use the
funding I did have to conduct some investigation regarding juror
issues and Zelma Cureton, and contact some family members. I
also was able to retain a neuropsychologist and conduct very brief
consultations with other experts. However, I did not have the funds
necessary to fully investigate and present Mr. Holloway’s habeas
claims.

5

ECF No. 32, Ex. 57 ¶ 4; cf. LD 39 (petitioner failing to raise any additional factual allegations,

6

nor support thereof, on this point in his reply brief).

7

Under Strickland, to show that his counsel performed deficiently under the Sixth

8

Amendment, a petitioner must show that his counsel’s act or omission was the but-for cause of

9

some harm that befell him in his criminal proceedings. Strickland, 466 U.S. at 687-88 (petitioner

10

must show that his trial counsel’s performance “fell below an objective standard of

11

reasonableness” and that “there is a reasonable probability that, but for counsel’s unprofessional

12

errors, the result of the proceeding would have been different”). Similarly, under the cause-and-

13

prejudice doctrine in federal court, a petitioner must show an actual causal link between “some

14

objective factor external to the defense” and his failure to have complied with the relevant state

15

procedural rule. Davila, 582 U.S. at 528 (“To establish ‘cause’—the element of the doctrine

16

relevant in this case—the prisoner must show that some objective factor external to the defense

17

impeded counsel’s efforts to comply with the State’s procedural rule. A factor is external to the

18

defense if it cannot fairly be attributed to the prisoner.” (cleaned up)).

19

Here, there exists nothing in the state court record to refute either petitioner’s factual

20

allegations about the monetary limit on investigative funds in the preparation of his first petition

21

for writ of habeas corpus, or Mr. Greenberg’s representations that that limitation affected his

22

preparation of that petition. See LD 38. Nevertheless, even if these allegations are fully credited,

23

they fail to establish that these limitations caused Mr. Greenberg to have failed to include claims

24

1.A, 1.D, 1.E.2, 2.A, 2.B, 2.C, 2.D, 2.E, 3, 4, 5.A, 5.B, 5.C, 5.D, 5.E.1, 5.F.2, 5.F.4, 5.G, 5.H, 5.I,

25

5.K, 5.L, 5.M, 5.N, 5.O, 6.C, 7.A, 7.C, 7.D, 9, 10.A, 19.B, 19.C, 21.B, or 27 in the first state

26

petition. First, several of these claims, when asserted in the second state petition, relied solely on

27

the trial record; these are claims 3, 4, 5.A, 5.C, 5.E.1, 5.K, 5.L, 5.N, 5.O, 6.C, 7.A, 7.C, 7.D,

28

10.A, 21.B, and 27. See ECF No. 32 at 91-104, 107-09, 112-13, 172-76, 205-07, 244-48, 251-54,
36

1

271-72, 341-42, 364-75. Ergo, for these claims, there appears in the state court record no causal

2

link between habeas counsel’s dearth of investigative funds at the time of preparing the first state

3

habeas petition and his failure to raise these claims in that petition; they could have been raised

4

solely on the trial record.

5

Second, of the remaining claims at issue, several of them rely on information outside of

6

the trial record, but access to this information does not, from the state-court record, appear to have

7

been impeded by the funding cap. One of the exhibits relied on by petitioner in his second state

8

petition appear to have been created by and in the possession of habeas corpus counsel before the

9

first state petition was filed. ECF No. 32, Ex. 26; see LD 30 at 32. Other of the exhibits relied on

10

by petitioner in his second petition contain dates indicating that they were created before the date

11

of the filing of the first state habeas corpus petition, although there is nothing in the record to

12

indicate at what point they came into the actual possession of habeas corpus counsel. ECF No.

13

32, Exs. 1, 2, 7, 8, 9, 10, 11, 13, 14, 19, 20, 21, 22, 23, 24, 27, 30, 32, 33, 34, 35, 36, 37, 38, 39,

14

41, 42, 43, 44. Some of these materials, however, appear to have been generated in the course of

15

the preparation of the first state habeas petition. ECF No. 32, Exs. 8, 10, 11, 13; see LD 30 at 32.

16

Other materials were apparently generated prior to, or during, trial proceedings. ECF No. 32,

17

Exs. 1, 2, 7, 14, 19, 20, 21, 22, 23, 24, 27, 30, 32, 33, 34, 35, 36, 37, 38, 39, 41, 42, 43, 44.

18

Petitioner made no argument in the state record as to why he was impeded in accessing these

19

records prior to filing his first state petition. See generally ECF No. 32; LD 39. In fact, in his

20

first state petition, petitioner represented that, prior to that document’s filing, he had contacted

21

trial counsel, conversed with them about the case, and received their entire case file. LD 30 at 15-

22

21, 33-34. This would seem to include most of the exhibits at issue, as they appear to have

23

derived from trial counsel’s files. See ECF No. 32, Exs. 1, 2, 7, 14, 19, 20, 21, 22, 23, 24, 27, 30,

24

32, 33, 34, 35, 36, 37, 39, 41, 42, 43, 44. Although one of petitioner’s trial counsel and juror

25

Edmonds both executed declarations after the filing of the first state petition, which were both

26

included as exhibits to the second state petition, see ECF No. 32, Exs. 6, 11, 12, the state record

27

indicates that both declarants had been known to habeas counsel and, in fact, had been contacted

28

by and interviewed by habeas counsel before the filing of the first state petition. LD 30 at 15, 20,
37

1

25-27, 32. Finally, certain materials that were included as exhibits to the second state petition,

2

including a declaration from a defense trial investigator, ECF No. 32, Ex. 25; records relating to

3

juror Edmonds, ECF No. 32, Ex. 9; and records relating to alternate suspect Lance Reedy, ECF

4

No. 32, Ex. 38, could have been obtained during the preparation of the first petition, as habeas

5

counsel indicated he had investigated these areas prior to filing the first habeas corpus petition,

6

and that his investigation had included interviewing relevant witnesses and obtaining relevant

7

records. See LD 30 at 15-32 (detailing investigative efforts into trial counsel’s work, Juror

8

Edmonds, and guilt-phase defenses). In sum, the state court record does not support a finding that

9

petitioner had failed to raise claims 1.A, 1.D, 1.E.2, 2.A, 2.B, 2.C, 2.D, 2.E, 3, 4, 5.A, 5.B, 5.C,

10

5.D, 5.E.1, 5.F.2, 5.F.4, 5.G, 5.H, 5.I, 5.K, 5.L, 5.M, 5.N, 5.O, 6.C, 7.A, 7.C, 7.D, 9, 10.A, 19.B,

11

19.C, 21.B, or 27 in his first state petition because he could not access the factual information

12

forming the basis of these claims prior to the filing of that petition. As such, the fact that these

13

claims were later filed in an untimely, successive petition does not appear to have been caused by

14

first habeas corpus counsel’s claimed deficient performance.

15

Relative to Claims 2.A, 2.B, and 2.D, petitioner advances, and the state court record

16

contains, additional evidence tending to show first state habeas corpus counsel’s deficient

17

performance as cause to excuse the default of these claims. In support of his second state petition

18

for writ of habeas corpus, petitioner tendered a declaration from Mr. Greenberg stating that he

19

had not brought these subclaims in the prior habeas corpus petition because he had not, at the

20

time, realized the legal significance of the facts surrounding these subclaims and had

21

misconstrued the law governing them. ECF No. 32, Ex. 57 ¶ 3. A defense counsel is deficient

22

for making decisions premised on a misapprehension of the law. See Hinton v. Alabama, 571

23

U.S. 263, 272 (2014); Kimmelman v. Morrison, 477 U.S. 365, 385 (1986). Nonetheless,

24

petitioner cannot show prejudice on these subclaims in a cause-and-prejudice analysis, or,

25

alternatively, that these subclaims should be dismissed at this stage as meritless. See Shinn, 142

26

S.Ct. at 1739; Schriro, 550 U.S. at 474-75; Franklin, 290 F.3d at 1232; Bell, 543 U.S. at 451 n.3.

27
28

These subclaims are premised on the assertedly wrongful dismissal of a juror during
penalty phase deliberations, based on, per petitioner, that juror’s misrepresentations to the trial
38

1

court as to his reasons for wanting to be dismissed. ECF No. 29 at 49-56; ECF No. 32 at 79-88.

2

To the extent these subclaims assert error by the trial court, they do not allege constitutional error.

3

A trial court may dismiss a juror midtrial who indicates his refusal to return a particular verdict

4

irrespective of the evidence. See United States v. Christensen, 828 F.3d 763, 806 (9th Cir. 2015).

5

The court may not, however, dismiss a juror simply because the jury is deadlocked and the court

6

wishes to impel a verdict. United States v. Sae-Chua, 725 F.2d 530, 531 (9th Cir. 1984). Here,

7

per the undisputed facts as asserted by petitioner, juror Kimball informed the trial court

8

repeatedly and unequivocally that he had come the realization that he could not return a death

9

verdict regardless of the prosecution’s evidence or his opinion of that evidence’s reliability or

10

strength. See ECF No. 29 at 46 (citing 26 RT 8171-79). The trial court, at that time, had no

11

knowledge of the numerical division of the jurors on the question of penalty, had no knowledge

12

of whether juror Kimball was a holdout, and made no inquiries concerning these possibilities.

13

See id. There is no authority for the argument that the trial court’s conduct here violated any of

14

petitioner’s constitutional rights.

15

To the extent petitioner argues, in subclaim 2.D, that juror Kimball committed misconduct

16

that prejudiced him, those allegations fail as a matter of law. Petitioner argued in state court that

17

juror Kimball had lied when he told the trial court that he had come to the conclusion that he

18

could not consider the death penalty in any case and that he could not impose it in any case,

19

regardless of the facts or circumstances. ECF No. 32 at 86. Per petitioner, the record developed

20

in postconviction demonstrated that, instead, juror Kimball was simply “unpersuaded by the

21

prosecution’s evidence” and therefore, instead of removing him, the trial court should have

22

declared a mistrial or ordered a retrial of the penalty phase. LD 39 at 24 & n.2. The state court

23

record, however, belies this description. In state habeas corpus proceedings, petitioner tendered

24

an investigative memorandum purporting to memorialize juror Kimball’s posttrial description of

25

his thoughts during the penalty phase deliberations, in which he purportedly described that he had

26

considered the evidence, initially believed he could render a death verdict, but, after days of

27

deliberation, “i[t] became clear to him that he could never vote for taking another person’s life.”

28

ECF No. 32, Ex. 20. This accords with the statements he made to the trial court requesting his
39

1

dismissal. See LD 17 (7 CT 1811); LD 19 (26 RT 8174-79). His statements are not contradicted

2

by other jurors’ recollections that, initially during penalty phase deliberations juror Kimball had

3

been a holdout on the question of penalty, highlighting some of the mitigation evidence he had

4

heard, but that he also had made statements suggesting he could entertain a death verdict. See

5

ECF No. 32, Exs. 23-27. These recollections are consistent with juror Kimball’s own,

6

uncontroverted representations of his internal shifting of beliefs about a possible penalty verdict

7

and do not demonstrate that he had overstated or misrepresented those beliefs when he articulated

8

them to the trial court. Simply, the uncontroverted evidence before the state court, and the

9

allegations comprising this subclaim in this court, do not make a prima facie showing that juror

10
11

Kimball committed any misconduct. As such, dismissal of subclaim 2.D is proper.
Finally, as described above, even if the state court record does not contain evidence of

12

state habeas corpus counsel’s ineffectiveness as cause to excuse the default of untimeliness and

13

successiveness applied to claims 1.A, 1.D (to the extent it alleges ineffective assistance of

14

counsel), 1.E.2, 2.A, 2.B, 2.C, 2.D, 2.E, 3, 4, 5.A, 5.B, 5.C, 5.D, 5.E.1, 5.F.2, 5.F.4, 5.G, 5.H, 5.I,

15

5.K, 5.L, 5.M, 5.N, 5.O, 6.C, 7.A, 7.C, 7.D, 9, 10.A, 19.B, 19.C, 21.B, or 27, petitioner may

16

nonetheless develop evidence for his cause-and-prejudice showing in this court if he shows that

17

such evidentiary development is merited under 28 U.S.C. section 2254(e). See Shinn, 142 S. Ct.

18

1718. Petitioner has made no such argument or showing. See generally ECF No. 85.

19

For these reasons, petitioner has not shown that there is cause to excuse the procedural

20

bars of untimeliness and successiveness that the California Supreme Court lawfully applied to

21

claims 1.A, 1.D (to the extent it alleges ineffective assistance of counsel), 1.E.2, 2.A, 2.B, 2.C,

22

2.D, 2.E, 3, 4, 5.A, 5.B, 5.C, 5.D, 5.E.1, 5.F.2, 5.F.4, 5.G, 5.H, 5.I, 5.K, 5.L, 5.M, 5.N, 5.O, 6.C,

23

7.A, 7.C, 7.D, 9, 10.A, 19.B, 19.C, 21.B, and 27 of his Petition for Writ of Habeas Corpus, on the

24

theory that first state habeas corpus counsel provided ineffective assistance of counsel.

25
26

C. Where Appellate Counsel’s Ineffectiveness Would Be The Cause to Excuse Procedural
Default

27

Petitioner argues that appellate counsel’s ineffectiveness should be considered cause to

28

excuse the default of claims 3, 4, 7.A, 7.C, 7.D, 9, 10.A, and 21.B, which the California Supreme
40

1

Court dismissed upon application of the Dixon bar. ECF No. 85 at 49-56. Nothing in the state

2

court record establishes appellate counsel’s deficient performance. See generally LD 21; LD 23;

3

LD 25; LD 26; LD 30 at 13-34; ECF No. 32 at 15-16 & Ex. 57; see Murray, 477 U.S. at 491-92;

4

Strickland, 466 U.S. at 688. Petitioner has not made any showing that the standard of 28 U.S.C.

5

section 2254(e) has been met on the question of appellate counsel’s ineffectiveness. See id.;

6

Shinn, 142 S. Ct. 1718. Consequently, petitioner has not met his burden of showing that his

7

appellate counsel’s ineffectiveness constitutes cause to excuse the procedural default applied to

8

these claims. See Shinn, 142 S. Ct. 1718. Because the undersigned has recommended the

9

dismissal of claim 31, which alleges appellate counsel’s ineffectiveness as a substantive claim, no

10

benefit to judicial resources would be derived by deferring resolution of this question until the

11

merits of the remaining claims are briefed.

12
13

D. Where Trial Counsel’s Ineffectiveness Would Be the Cause to Excuse Procedural
Default

14

Finally, for the three claims for which the contemporaneous objection rule facially

15

applies—claims 7.B, 11, and 28—petitioner has argued that trial counsel’s ineffectiveness

16

constitutes cause to excuse the default. ECF No. 85 at 49-56. Petitioner has not made a showing

17

that the standard for evidentiary development on this issue has been met under 28 U.S.C. section

18

2254(e). See id. Nevertheless, in the state court record, petitioner made some showing of trial

19

counsel’s ineffectiveness and many claims asserting that theory remain operative in the petition

20

even after resolution of the instant motion. See ECF No. 29 at 38-39, 75-82, 95-118, 164-65,

21

171-73, 218-35 (claims 1.G, 5.E.2, 5.F.1, 5.F.3, 5.J, 6.E, 6.G, 19.A); see generally ECF No. 73 at

22

1, 15 & Appendix. In subsequent proceedings, therefore, this court may need to determine

23

whether petitioner made a prima facie showing in state court of trial counsel’s ineffectiveness

24

relative to those claims and, if so, if he can demonstrate a right to relief on the merits on them.

25

See 28 U.S.C. § 2254(d). Because these showings may overlap considerably with the showing

26

required to prove cause and prejudice to excuse the defaults applied to claims 7.B, 11, and 28,

27

judicial economy is served by deferring resolution of the cause and prejudice question on claims

28

7.B, 11, and 28 until the remaining claims asserting ineffective assistance of counsel are resolved.
41

1

Therefore, the undersigned recommends respondent’s motion for summary judgment be denied

2

without prejudice as to claims 7.B, 11, and 28.

3
4

IX.

Fundamental Miscarriage of Justice
Petitioner argues that this court may consider the merits of the claims at issue because

5

their dismissal due to procedural default would reflect a fundamental miscarriage of justice. ECF

6

No. 85 at 58-62.14 A habeas petitioner’s “otherwise-barred claims [may be] considered on the

7

merits . . . if his claim of actual innocence is sufficient to bring him within the ‘narrow class of

8

cases . . . implicating a fundamental miscarriage of justice.’” Carriger v. Stewart, 132 F.3d 463,

9

477 (9th Cir.1997) (quoting Schlup v. Delo, 513 U.S. 298, 315 (1995)). To meet this gateway, the

10

petitioner must present proof of actual innocence in the form of “new reliable evidence—whether

11

it be exculpatory scientific evidence, trustworthy eyewitness accounts, or critical physical

12

evidence—that was not presented at trial.” Schlup, 513 U.S. at 324; see also House v. Bell, 547

13

U.S. 518, 537 (2006). The petitioner must show “that more likely than not, in light of the new

14

evidence, no reasonable juror would find him guilty beyond a reasonable doubt—or, to remove

15

the double negative, that more likely than not any reasonable juror would have reasonable doubt.”

16

House, 547 U.S. at 538; see also Majoy v. Roe, 296 F.3d 770, 776 (9th Cir. 2002) (petitioner

17

“must show that, in light of all the evidence, including evidence not introduced at trial, ‘it is more

18

likely than not that no reasonable juror would have found petitioner guilty beyond a reasonable

19

doubt.’” (quoting Schlup, 513 U.S. at 327)); see also Gage v. Chappell, 793 F.3d 1159, 1167 (9th

20

Cir. 2015).

21
22

Here, petitioner tendered some evidence in post-conviction proceedings supporting his
defense of actual innocence, but it was not so compelling or “reliable” to establish that, had the

23
24
25
26
27
28

14

Petitioner asks that resolution of this question be deferred until the court resolves the
merits of the remaining claims. ECF No. 85 at 56-62. Petitioner appears estopped from making
such an argument, as it is contrary to the briefing order for which he has previously advocated.
See Morris v. State of Cal., 966 F.2d 448, 452 (9th Cir. 1991). On November 17, 2011, petitioner
moved the court to reconsider its prior briefing order and to resolve the application of procedural
bars before reaching the merits of any remaining claims, arguing that proceeding in that manner
promoted judicial economy. ECF No. 77; see also ECF No. 79 at 2. The court granted that
motion, ECF No. 81, 83, resulting in the instant briefing. ECF No. 83.
42

1

jury been shown this evidence, “it is more likely than not that no reasonable juror would have

2

found petitioner guilty beyond a reasonable doubt.” See Schlup, 513 U.S. at 324, 327. The

3

evidence adduced at trial to establish petitioner’s culpability principally

4
5
6
7

consisted of his fingerprints inside the townhouse and Debbie’s car;
pubic and other hairs found at the crime scene that were consistent
with defendant’s hairs and inconsistent with the victims’;
defendant’s initial false exculpatory statements to police, including
an attempt to manufacture an alibi; and his eventual partial
admission to presence at the crimes.

8

Holloway, 33 Cal. 4th at 103. At trial, petitioner testified that he had had a consensual, sexual

9

relationship with one of the victims and that, on the night of the homicides, he came upon the

10

crime scene shortly after the murders and fled out of fear that he would be blamed. Id. at 107-08.

11

The prosecution presented the testimony of a witness refuting that petitioner and the victim had a

12

romantic relationship. Id. at 110.

13

The defense presented some evidence of the culpability of other persons for the crimes.

14

Zelma Cureton testified that, around the time the victims were killed in Sacramento, she

15

encountered two men while working as a prostitute in Reno. Holloway, 33 Cal. 4th at 108. The

16

men boasted about having killed two women in Sacramento, who were half-sisters, and “preferred

17

females.” Id. One man wore a shirt that appeared bloodstained and stated that one victim

18

“almost got away” and “had the door of the car almost locked” before he “got there just in the

19

nick of time.” Id. He reportedly stated that one victim had been stabbed and the other strangled,

20

and he mentioned having showered after the killings. Id.

21

Ms. Cureton testified she had reported this conversation to local police, but law

22

enforcement investigators testified that, after investigating Ms. Cureton’s report, it was

23

determined to relate to another killing that had occurred in Sacramento. Id. at 109. Investigators

24

also testified that Ms. Cureton was perceived as unreliable, as she had provided false crime

25

reports on two previous occasions. Id. The prosecution also presented evidence that Ms. Cureton

26

had reported this conversation as having occurred prior to the homicides of Ms. Cimmino and Ms.

27

Pencin, thus precluding the possibility that it referenced them. Id. at 110. The defense presented

28

evidence to support Ms. Cureton’s reliability: Ms. Cureton had identified from a photograph a
43

1

man who lived across the street from the victims’ home as one of the men whose conversation she

2

had heard and other witnesses testified that, in days before the crimes, they saw two or three

3

Black men outside the victims’ home, who were wearing clothes resembling those Ms. Cureton

4

had described the conversing men to have been wearing. Id. at 109.

5

In habeas corpus proceedings, petitioner alleges additional facts to strengthen the

6

reliability of Ms. Cureton’s report. He proffers a Reno Police report memorializing Ms.

7

Cureton’s initial report to that agency, which corroborated the defense claim that the conversation

8

Ms. Cureton had overheard had occurred after the time of the homicides, and thus could have

9

been referencing the homicides of Ms. Cimmino and Ms. Pencin. ECF No. 29 at 77-78. This

10

report also seemed to undercut investigators’ recollections that they had initially investigated Ms.

11

Cureton’s report and had concluded that it related to another murder that had occurred in

12

Sacramento around the same time. Id. Petitioner also tendered a police report indicating that a

13

male informant—i.e., not Ms. Cureton—had been the source of the police’s belief that the

14

conversation Ms. Cureton overheard had related to a different Sacramento homicide. Id. at 80-81.

15

And petitioner tendered evidence that Ms. Cureton’s probation officer believed her to be

16

generally truthful. Id. at 79.

17

Petitioner also tendered evidence in habeas corpus proceedings supporting the alternative

18

defense that other persons had committed the murders. He presented evidence that, prior to her

19

murder, Ms. Cimmino had been threatened and menaced by multiple neighbors and by another

20

prostitute. ECF No. 29 at 94-95, 181-84. He tendered some evidence that a man named Larry

21

Reedy may have committed the crimes, as his fingerprints were reportedly found in the victims’

22

home, his brand of cigarettes were found at the crime scene, he had a history of mental health

23

problems including violent thoughts towards women, and someone matching his general

24

description was observed near the crime scene on the night of the murders. Id. at 88-93, 174-78.

25

Finally, petitioner tendered expert evidence impeaching the reliability of hair evidence purporting

26

to connect him to the crime scene; evidence supporting his claim that he and Ms. Cimmino had

27

been in a romantic relationship; and evidence that his inculpatory statements may have been

28

confabulations resulting from a mental defect. Id. at 87-88, 95-118, 178.
44

1

Considering the totality of evidence of petitioner’s guilt adduced at trial, as well as that

2

presented in post-conviction proceedings, petitioner has not shown that he is actually innocent of

3

his crimes of conviction. He has not tendered “new reliable evidence—whether it be exculpatory

4

scientific evidence, trustworthy eyewitness accounts, or critical physical evidence” tending to

5

show his innocence. Schlup, 513 U.S. at 324. Much of the evidence on which petitioner bases

6

his argument for Ms. Cureton’s credibility comes from hearsay statements attributed to two

7

unknown speakers. Even if the jury had fully credited Ms. Cureton’s statements, however, and

8

had believed that she identified a neighbor of the victims as one of the speakers, the hearsay

9

statements themselves were vague and lacked certain connection to the homicides of Ms.

10

Cimmino and Ms. Pencin. Moreover, petitioner points to no evidence either at trial or adduced in

11

habeas proceedings that tends to show that the hearsay statements themselves were reliable—for

12

example, by virtue of the circumstances of their being uttered—or that would tend to show the

13

truthfulness of the hearsay declarants themselves. In sum, the evidence of Ms. Cureton’s

14

recollections of this conversation, and evidence tending to support her truthfulness regarding her

15

recollections, does little to demonstrate that petitioner was actually innocent of the crimes with

16

which he was ultimately convicted. See Schlup, 513 U.S. at 327.

17

The same conclusion obtains when this evidence is considered together with the other

18

evidence of petitioner’s innocence on which he now relies. Although petitioner identified other

19

suspects in the homicides—including Larry Reedy, neighbors, and others—he tendered no

20

evidence tending to show that any of these persons were anything more than suspects; certainly,

21

he tendered no “reliable” evidence, such as “exculpatory scientific evidence, trustworthy

22

eyewitness accounts, or critical physical evidence” tending to show that any of these other

23

persons committed the crimes of which petitioner was convicted. See Schlup, 513 U.S. at 324.

24

While petitioner impugns the reliability of the prosecution’s physical evidence, the evidence he

25

tendered in post-conviction fails to show that he could be excluded as the contributor of the hair

26

found in the victims’ home and, thus, this expert opinion does little to assist petitioner in carrying

27

his burden of showing his actual innocence. The jury could also discount petitioner’s evidence

28

that his inculpatory statements were mere confabulations, in light of the other evidence of his
45

1

presence at the crime scene, and give little weight to the evidence that petitioner had spent the

2

night previously with one of the victims, as it related only obliquely to the question of whether

3

petitioner had been present on the night of the crimes.

4

Taken together, the evidence presented in habeas corpus proceedings only weakly

5

supports petitioner’s innocence defense and fails meaningfully to impeach the prosecution’s

6

evidence of his culpability. Although petitioner developed evidence of plausible alternate

7

suspects, plausible explanations for his fingerprints being found throughout the crime scene, and a

8

plausible description of his having given a false inculpatory statement about the crimes, none of

9

these possibilities is more compelling than the cumulative evidence of petitioner’s culpability that

10

the jury already heard. Cf. ECF No. 29 at 97 (petitioner acknowledges “the evidence of [his]

11

false alibi and his incriminating admissions at the end of his March 22, 1983 statement pointed

12

strongly toward guilt”). Petitioner fails to meet his burden to “show that, in light of all the

13

evidence, including evidence not introduced at trial, ‘it is more likely than not that no reasonable

14

juror would have found petitioner guilty beyond a reasonable doubt’” had evidence of his

15

innocence been presented. Majoy v. Roe, 296 F.3d 770, 776 (9th Cir. 2002) (quoting Schlup, 513

16

U.S. at 327).

17
18

Accordingly, it is hereby ORDERED that the Clerk of Court substitute Michael Martel as
respondent.

19

Further, it is RECOMMENDED that:

20

(1) Respondent’s Motion for Summary Judgment, ECF No. 56, be denied without

21

prejudice as to claims 1.C, 1.F, 7.B, 11, and 28 of the Petition for Writ of Habeas

22

Corpus; and

23

(2) Respondent’s Motion for Summary Judgment, ECF No. 56, be granted as to claims

24

1.A, 1.D (to the extent it alleges ineffective assistance of counsel), 1.E.2, 2.A, 2.B,

25

2.C, 2.D, 2.E, 3, 4, 5.A, 5.B, 5.C, 5.D, 5.E.1, 5.F.2, 5.F.4, 5.G, 5.H, 5.I, 5.K, 5.L, 5.M,

26

5.N, 5.O, 6.C, 7.A, 7.C, 7.D, 9, 10.A, 19.B, 19.C, 21.B, 27, and 31 of the Petition for

27

Writ of Habeas Corpus.

28

These findings and recommendations are submitted to the United States District Judge
46

1

assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within thirty days after

2

being served with these findings and recommendations, any party may file written objections with

3

the court and serve a copy on all parties. Such a document should be captioned “Objections to

4

Magistrate Judge’s Findings and Recommendations.” If petitioner files objections, he shall also

5

address whether a certificate of appealability should issue and, if so, why and as to which issues.

6

A certificate of appealability may issue under 28 U.S.C. § 2253 “only if the applicant has made a

7

substantial showing of the denial of a constitutional right.” 28 U.S.C. § 2253(c)(3). Any

8

response to the objections shall be filed and served within thirty days after service of the

9

objections. The parties are advised that failure to file objections within the specified time may

10

waive the right to appeal the District Court’s order. Martinez v. Ylst, 951 F.2d 1153 (9th Cir.

11

1991).

12
13

IT IS SO ORDERED.

14
Dated:
15
16

January 30, 2024
JEREMY D. PETERSON
UNITED STATES MAGISTRATE JUDGE

17
18
19
20
21
22
23
24
25
26
27
28
47