Bucci v. Busby

Filing 30

FINDINGS and RECOMMENDATIONS signed by Magistrate Judge Kendall J. Newman on 08/26/14 recommending that respondent's motion to dismiss 27 be granted as to claims 3,5,6 and 8 on grounds that they are barred by the statute of limitations and pro cedurally barres; respondent's motion to dismiss claim 7 be denied without prejudice; follwing adoption of these findings and recommendations, petitioner be ordered to file a second amended petition raising claims 1,2 and 4 only. MOTION to DISMISS 27 referred to Judge Garland E. Burrell. Objections due within 14 days. (Plummer, M)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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NICOLA CHRISTOPHER BUCCI,

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Petitioner,

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No. 2: 11-cv-3147 GEB KJN P

v.

FINDINGS & RECOMMENDATIONS

TIMOTHY E. BUSBY,

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Respondent.

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Introduction
Petitioner is a state prisoner, proceeding through counsel, with a petition for writ of

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habeas corpus pursuant to 28 U.S.C. § 2254. Petitioner challenges his 2009 conviction for two

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counts of second degree murder. He is serving a sentence of 23 years to life.
Pending before the court is respondent’s motion to dismiss. Respondent argues that

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claims 3, 4, 5, 6, 7 and 8 are not exhausted, procedurally defaulted and/or barred by the statute of

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limitations. In the reply to petitioner’s opposition, respondent withdraws the motion to dismiss

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regarding claim 4.
After carefully reviewing the record, the undersigned recommends that respondent’s

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motion be granted as to claims 3, 5, 6 and 8 on the grounds that these claims are procedurally

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defaulted and barred by the statute of limitations.

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Factual Background
The undersigned sets forth the factual background of petitioner’s case as it puts
respondent’s motion in context.

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A. Prosecution Case

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1. Eye witnesses Johnson and Fender

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Witness Kim Johnson testified that around 6:30 p.m. on November
17, 2006, she was driving eastbound on Highway 12, a two lane
highway. Traffic was heavy in both the eastbound and westbound
lanes. Johnson was driving at the 55 mile per hour speed limit. She
looked in her rear view mirror and saw a silver SUV pass her
vehicle in the westbound lane, then pull in front of her vehicle in
the eastbound lane. The silver SUV was “driving really fast.”
Johnson estimated its speed at 65 to 70 miles per hour.

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Passing was prohibited in this section of Highway 12. Nevertheless,
the silver SUV pulled back into the westbound lane and accelerated
up a hill, attempting to pass more vehicles. At the crest of the hill,
the SUV collided head on with a small red car in the westbound
lane. The SUV flipped in the air and landed in a field. The small car
was severely damaged and burning in the westbound lane.
Johnson pulled over and ran to the small red car. The driver was
screaming, and Johnson said she would get her out of the vehicle. A
man (whom Johnson identified at trial as Bucci) also approached
the small vehicle, and Johnson asked him “to go check the SUV to
see if anybody was in the SUV was okay [ sic ].” Bucci responded,
“It was me, I was driving.” Johnson asked Bucci to help her extract
the driver from the burning vehicle. Bucci threw up his hands and
said, “Oh, my God. What I have done [ sic ]?” When Johnson
again asked Bucci to help her, Bucci responded, “I can’t,” and
walked away. Another person at the scene (Jerry Fender) helped
Johnson remove the driver from the burning red car.
Jerry Fender testified that he was driving eastbound on Highway 12
around 6:30 p.m. on November 17, 2006. He confirmed that
Highway 12 is a two lane highway with one eastbound lane and one
westbound lane, with a speed limit of 55 miles per hour. Fender
was travelling about 50 miles per hour behind two “semi-tractor
trail[e]rs.” An SUV passed his vehicle at about 70-80 miles per
hour, even though there was a solid yellow line on the east bound
lane indicating no passing. FN2 The SUV did not veer or move
erratically, but proceeded in a “straight ahead, aggressive passing
maneuver like you would normally do on a flat stretch of road.”
The SUV accelerated eastbound in the westbound lane, passing one
of the semi-trailers and attempting to pass the second. When the
SUV reached the crest of a hill, it collided head on with a red
Toyota.
FN2. On the night of the accident, Fender told the police he
believed that Bucci’s vehicle was traveling 65 to 70 miles per hour.
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By either account, it was at least 10 miles per hour over the posted
speed limit.

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After passing the collision, Fender made a U turn, stopped his
vehicle, and turned on his hazard lights to prevent other vehicles
from colliding with the wrecked Toyota, which had come to a stop
in the westbound lane. The SUV ended up in a field. When Fender
saw that the Toyota was on fire, he retrieved a fire extinguisher
from his vehicle and approached the Toyota, where he saw a
woman and three young children inside.

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2. Victim Jackson
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Victim Regina Jackson testified that, around 6:30 p.m. on
November 17, 2006, she was returning home to Fairfield from Rio
Vista in her red Toyota Corolla. In the car with her were three
passengers: her children Jordan and Immanuel; and Demari H., the
child of a friend.

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As Jackson drove westbound on Highway 12, she suddenly saw a
“car coming head-on into us passing two diesel trucks -- trying to
pass two diesel trucks coming over a hill.” Jackson testified, “I tried
to go over to the right, but I couldn’t. There was nowhere I could
go.” There was a head on collision just as she crested the hill.

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As a result of the collision, Jackson suffered debilitating injuries,
including a broken femur, knee, hip, and foot, with additional
injuries to her forehead, eye, and mouth. She remained in the
hospital for over two months. Imannuel and Demari H. died as the
result of the injuries they suffered in the accident; Jordan became
paralyzed from the waist down.

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3. Investigation

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Jason Bryant, an emergency medical technician, responded to the
scene. Bryant contacted Bucci and found him to be uninjured
except for pain in his elbow and back. Bucci stated he was the
driver of one of the vehicles in the collision. He told Bryant that he
believed he “fell asleep at the wheel.” Bucci appeared emotionally
upset and in tears, but was “cogent and responsive” to questions
and gave “logical, reasonable answers.”

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California Highway Patrol Officer Patricia Rodriguez conducted an
accident investigation at the scene. She confirmed there was a solid
yellow line indicating a no passing zone for eastbound traffic going
up the hill where the collision occurred. She concluded that the red
Toyota was going westbound and was struck head on by the SUV
that was travelling eastbound in the westbound lane.

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California Highway Patrol Officer Michael Ervin also responded to
the scene. Ervin contacted Bucci, who was cogent and lucid and
admitted he was the owner and driver of the SUV. According to the
officer’s report, Bucci told the officer: He “momentarily fell asleep,
dozed off, realized he was traveling in the wrong lane. Tried to
speed up to pass a truck that was alongside of him. Saw the victim
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vehicle coming towards him. And swerved to the left, and the
impact took place.”

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Officer Ervin asked Bucci if he had any health problems that might
have contributed to the accident. Bucci replied that he had sleep
apnea, but he denied being tired at the time of the accident. He did
not claim to have been exposed to any substance that could cause
him to lose consciousness.

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Based upon witness interviews and investigation of the scene,
Officer Ervin concluded that Bucci had violated the Vehicle Code
by crossing over a solid yellow roadway line that prohibited passing
and by attempting to pass while going up a hill. In short, Ervin
asserted, Bucci was “attempting to pass a passenger vehicle and two
semi trucks uphill going the wrong way.” The officer
acknowledged that it was highly dangerous to drive well in excess
of the posted speed limit in order to pass multiple vehicles
approaching the crest of the hill.

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It was stipulated that testing found no drugs or alcohol in Bucci’s
system. There were no skid marks on the road indicating that Bucci
tried to apply his brakes before the collision.
4. Bucci’s Prior Fatal Collision in 1994

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The prosecutor introduced evidence that Bucci was involved in a
head on collision on Highway 80 in January 1994. Travelling
westbound, Bucci’s pickup truck proceeded on the right shoulder
for over one thousand feet, then veered across the two westbound
lanes and the dirt center median before colliding head on with a
Cadillac sedan in the eastbound lane. The occupants of the Cadillac
died as a result of the collision. At the scene, Bucci told California
Highway Patrol Officer Ty Brown that he had been up all night
gambling at casinos in Reno. He also admitted drinking alcohol and
smoking marijuana. Bucci stated that he apparently fell asleep or
blacked out while driving and awoke just before the collision.
Officer Brown concluded that the circumstances of the accident
were consistent with Bucci’s claim.

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B. Defense Case
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1. Bucci
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As to the 1994 traffic accident, Bucci explained that he had been
awake for over 30 hours and fell asleep at the wheel; when he woke
up, his car was out of control and he collided with another car.

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As to the charged crimes, Bucci testified that on Friday, November
17, 2006, he was working as a sous chef at Google’s main
headquarters in Mountain View. Over the weekend Google was
going to conduct tests related to transferring from electrical power
to solar power, and during those tests, the electrical energy would
be shut off. Therefore, 150 pounds of dry ice had been placed in a
10 foot by 20 foot walk in freezer. Bucci was not warned of any
hazards of exposure to dry ice.
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On November 17, Bucci inspected the food inventory of the walk in
freezer containing the dry ice. After 10 15 minutes inside the
freezer, he became dizzy and short of breath. He left the freezer
and, when he went back in to complete his work, experienced the
same thing. He testified, “I really don’t remember a lot of stuff after
that second time.” He had never experienced any adverse effects
after being in the walk in freezer before.FN3
FN3. Other Google employees confirmed at trial that dry ice was
placed in the refrigerators and freezers and no safety instructions or
information concerning the proper handling of dry ice were given to
Bucci. One employee testified that Bucci had appeared healthy and
normal at work, but later in the day he appeared drawn, pale, and
ill. Bucci told him that while in one of the walk in freezers, he
experienced dizziness that caused him to fall on a rack and hurt his
arm. He also complained of a severe headache.

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Around 3:00 p.m., Bucci left work and began driving from
Mountain View to Lodi. He testified that he could recall only “bits
and pieces” of the evening. He did not know how he found his
vehicle in the parking lot. He did not know how he got to Highway
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driving up an incline or trying to pass a truck. He remembered “a
Jack in the Box and, uh, a tractor trailer [to the right of him] and
then, uh, lights, and I, uh I had swerved, I swerved to the left and I
saw the lights.” Then the collision occurred. The next thing he
remembered was being in an ambulance.

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On cross examination, Bucci acknowledged that he learned from
the 1994 incident that you can likely kill someone if you fall asleep
at the wheel. Bucci denied any recollection of telling EMT Bryant,
at the scene of the 2006 accident, that he fell asleep at the wheel.
Bucci also acknowledged knowing, as of November 2006, that
passing on a two lane highway could be dangerous, and passing in
the wrong lane on a two lane highway can be extremely dangerous
to oncoming traffic. He was also aware that “passing uphill over a
solid no pass line towards the crest of a hill where you can't see is
life endangering,” and “passing multiple vehicles at night uphill in
excess of a speed limit over the solid line is likely to kill
somebody.” Bucci asserted that he would never pass uphill in a no
passing zone and could not remember it happening.

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2. Expert Witnesses

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Bucci presented medical experts who testified that exposure to large
amounts of carbon dioxide can result in hypoxia, or oxygen
deprivation to the brain. Hypoxia can cause mental impairment and
loss of cognitive function. Specific symptoms could include loss of
memory and difficulties in attention and concentration. It might
affect a person’s ability to perform complex tasks such as driving
an automobile at night and passing other motor vehicles.

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Neuropsychologist Darcy Cox opined that Bucci’s actions after
being exposed to dry ice were consistent with his having a severe
hypoxic episode: his lack of memory, changes in vision, feeling
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tired, feeling dizzy and confused, and driving out of his way. Dr.
Cox also opined that Bucci was clinically depressed and was
suffering from post traumatic stress disorder based on his
involvement in the previous fatal accident in 1994. Because of this
disorder, she reasoned, Bucci must have assumed that the second
accident in 2006 was caused because he fell asleep at the wheel
again, and this may have been the reason he stated at the scene of
the 2006 accident that he believed he fell asleep.

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People v. Bucci, 2010 WL 2512732 at *1-5 (2010).

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Procedural Background

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Petitioner was convicted on February 9, 2009. (ECF No. 1 at 1.) Petitioner appealed to

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the California Court of Appeal raising the following issues: 1) the trial court erred in admitting

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prior bad act evidence in violation of petitioner’s federal constitutional rights; 2) insufficient

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evidence to sustain the murder convictions in violation of petitioner’s constitutional rights; 3) jury

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instruction error (2 claims); 3) the trial court erred in excluding evidence that petitioner had been

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convicted and punished for prior bad acts; 4) prosecutorial misconduct; and 5) improper

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application of enhancements. (Id. at 2.) On June 23, 2010, the California Court of Appeal upheld

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petitioner’s conviction. (Id.)
On September 1, 2010, the California Supreme Court denied petitioner’s petition for

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review. (Id. at 2.) The petition for review raised the following claims: 1) improper application

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of enhancements; 2) the trial court erred in admitting prior bad act evidence in violation of

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petitioner’s constitutional rights; 3) implied malice second degree murder in vehicular homicides

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should not apply to non-driving under the influence cases; and 4) prosecutorial misconduct. (Id.

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at 3.)

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On November 23, 2010, petitioner filed a habeas corpus petition in the Solano County

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Superior Court. (Id. at 3.) This petition alleged that the trial court erred in excluding

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receipts/invoices showing that dry ice was delivered to petitioner’s place of employment on the

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day in question. (Id.) On January 21, 2011, the Superior Court denied the petition. (Id.)

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On March 14, 2011, petitioner filed a habeas corpus petition in the California Court of

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Appeal raising two claims: 1) the trial court erred in excluding receipts/invoices showing that dry

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ice was delivered to petitioner’s place of employment on the day in question; and 2) appellate
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counsel was ineffective for failing to raise this question on appeal. (Id. at 4.) On March 24,

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2011, the California Court of Appeal denied this petition without prejudice to petitioner raising

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ground two in a petition filed in the Superior Court. (Id. at 4.)

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On April 29, 2011, petitioner filed a second petition in the Superior Court raising the same

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two claims raised in the petition filed in the California Court of Appeal on March 14, 2011. (Id.)

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On June 20, 2011, the Superior Court denied this petition. (Id. at 4.)
In late September 2011, petitioner’s family retained petitioner’s present counsel. (ECF

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No. 10-5 at 2.)

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On November 28, 2011, petitioner filed his original petition in this court. (ECF No. 1.)

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This petition raised the following claims: 1) admission of irrelevant evidence (claim one); 2)

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prosecutorial misconduct (claims two and seven); 3) improper exclusion of evidence (claim

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three); 4) ineffective assistance of counsel (claims four, five and six); and 4) cumulative error

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(claim eight). (Id. at 5-18.)

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On January 9, 2012, petitioner filed a motion to stay his federal petition pending
exhaustion of state court remedies. (ECF No. 10.)

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On March 13, 2012, the undersigned issued findings and recommendations recommending

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that petitioner’s motion to stay this action pending exhaustion of unexhausted claims be granted.

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(ECF No. 17.) The undersigned found that petitioner’s claims 3, 4, 5, 6, 7 and 8 were not

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exhausted. (Id. at 10-13.) The undersigned recommended that petitioner’s motion to stay claim

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4, pursuant to Rhines v. Weber, 544 U.S. 269 (2005), be granted. (Id. at 17.) The undersigned

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found that the remaining unexhausted claims did not qualify for a stay pursuant to Rhines, but

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recommended that petitioner be permitted to exhaust them in state court pursuant to the

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procedures set forth in Kelly v. Small, 315 F.3d 1063, 1070-71 (9th Cir. 2003).1 (Id.) The

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“Pursuant to the Kelly procedure, (1) a petitioner amends his petition to delete any unexhausted
claims; (2) the court stays and holds in abeyance the amended, fully exhausted petition, allowing
the petitioner the opportunity to proceed to state court to exhaust the deleted claims; and (3) the
petitioner later amends his petition and re-attaches the newly exhausted claims to the original
petition.” King v. Ryan, 564 F.3d 1133, 1135 (2009) (citing Kelly, 315 F.3d at 1070-71.) Kelly
requires the petitioner to delete unexhausted claims such that only exhausted claims are stayed.
See King, 564 F.3d at 1135 (outlining the Kelly procedure).
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undersigned recommended that the claims stayed pursuant to Kelly be stricken. (Id.)
On April 30, 2012, the Honorable Garland E. Burrell adopted the March 31, 2012 findings
and recommendations. (ECF No. 18.)
Petitioner filed a habeas corpus petition in Superior Court on January 11, 2012. (ECF No.

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19-8 at 2 (petitioner’s exhibit 4, TAB B.) This petition raised at-issue claims 3, 5, 6, 7 and 8 as

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well as other claims. (Id.) On March 6, 2012, citing In re Clark, 5 Cal.4th 750, 774-75, 783

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(1993), the Superior Court denied claims 3, 5, 6, 7 and 8 on grounds that they were “successive,

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delayed or piecemeal,” and thus, an abuse of the writ. (ECF No. 19-7 at 5 (petitioner’s exhibit 4,

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TAB A.))

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On May 3, 2012, petitioner filed a habeas corpus petition in the California Court of

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Appeal. (ECF No. 27 at 28.) On August 8, 2012, the California Court of Appeal issued a

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peremptory writ directing the Solano County Superior Court to vacate its March 6, 2012 denial of

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the habeas petition, and to reassign the petition to another judge. (Id. at 30.) The California

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Court of Appeal found that the Superior Court judge who considered the petition filed January 11,

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2012 was disqualified from considering the petition. (Id. at 29.)

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On October 11, 2012, the Solano County Superior Court again denied the petition. (ECF

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No. 19-9 at 2 (petitioner’s exhibit 4, tab C).) The Superior Court again found claims 3, 5, 6, 7

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and 8 to be successive and or untimely, citing In re Clark, supra. (Id.)

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On December 11, 2012, petitioner filed a habeas corpus petition in the California Court of

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Appeal. (ECF No. 19-6 (petitioner’s exhibit 4).) This petition raised claims 3, 5, 6, 7 and 8 as

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well as other claims. (Id.) This petition identified claim 3 as claim “E,” claim 5 as claim “C(2),”

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claim 6 as claim “C(1),” claim 7 as claim “F,” and claim 8 as claim “H.” (Id.) On June 18, 2013,

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In step three of the Kelly procedure, a petitioner is allowed to add his newly exhausted
claims back into the federal petition if the claims are independently timely under the statute of
limitations or “relate back” to the exhausted claims in the pending petition. See King, 564 at
1140-41. “An amended habeas petition does not relate back (and thereby escapes AEDPA’s one
year time limit) when it asserts a new ground for relief supported by facts that differ in both time
and type from those the original pleading set forth.” Mayle v. Felix, 545 U.S. 644, 650 (2005). A
new claim “relates back” to an existing claim if the two claims share a “common core of
operative facts.” Id. at 569. A new claim does not “relate back” to an existing claim simply
because it arises from “the same trial conviction or sentence.” Id. at 663-64.
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the California Court of Appeal denied the petition. (ECF No. 19-5 (petitioner’s exhibit 3).) This

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order stated,

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The petition for writ of habeas corpus is denied.

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The petition lacks sufficient allegations to meet the petitioner’s
burden of demonstrating that the petition should not be barred as
untimely or successive, as to Claims C, D, E, F, G and H (to the
extent claim H is not based on Claims A and B). (In re Clark
(1993) 5 Cal.4th 750, 774-775, 782-799; In re Robbins (1998) 18
Cal.4th 770, 780-781; In re Swain (1949) 34 Cal.2d 300, 303-304;
see also In re Reno (2012) 55 Ca.4th 428, 472-474.) Additionally,
Claims E, F and G are barred by In re Dixon (1953 41 Cal.2d 756,
759, and Claims E and G are barred by In re Waltreus (1965) 62
Cal.2d 218, 225.

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Even assuming, arguendo, that Claims A and B should not be
barred as untimely or successive, these claims, and the portion of
Claim H that relies on Claims A and B, are denied, for failure to
state a prima facie case for relief.

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(Id.)

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On July 1, 2013, petitioner filed a petition for review in the California Supreme Court.

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(ECF No. 19-4 (petitioner’s exhibit 2).) On August 13, 2013, the California Supreme Court

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denied the petition for review without comment or citation. (ECF No. 19-3 (petitioner’s exhibit

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1).)

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On January 23, 2014, petitioner filed a motion to lift the stay in this court and an amended

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petition. (ECF No. 19.) The amended petition raises the same claims as were raised in the

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original petition. (ECF No. 19-2 at 7-12.) The undersigned summarizes these claims herein.

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Claim 1 alleges that petitioner’s right to due process was violated when the trial court

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admitted irrelevant evidence that was so prejudicial that it rendered the trial fundamentally unfair,

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i.e., evidence that in 1994, petitioner had fallen asleep at the wheel, abruptly awoke when his

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vehicle ran off the road, overcorrected and crossed the center line, hitting another vehicle head-on

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and killing the 2 occupants. (Id. at 7.) Claim 2 alleges that the prosecutor committed misconduct

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during closing argument with his comments regarding the 1994 accident, i.e., he improperly

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argued that in 1994, petitioner “got away with it.” (Id. at 8-9.) Claim 3 alleges that the trial court

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erred in excluding evidence that petitioner had been convicted of and punished for the 1994

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accident, i.e., he had not “gotten away with it,” in violation of his Fifth and Sixth Amendment
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rights to present a defense, the Sixth Amendment right to confront and cross-examine, and the

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Due Process Clause of the Fourteenth Amendment. (Id. at 9.) Claim 4 alleges that trial counsel

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was ineffective for failing to adequately investigate the facts and circumstances of the 2006

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incident, i.e., he failed to hire an accident reconstruction expert. (Id. at 9-10.)

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Claim 5 alleges that trial counsel was ineffective for failing to object to the prosecutor’s

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arguments that petitioner had “gotten away with it” before, that the prosecutor himself had never

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been in someone else’s lane for 2 to 25 seconds (like petitioner testified to), and that the defense

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experts were “bought.” (Id. at 10.) Claim 6 alleges that trial counsel was ineffective for failing to

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introduce evidence that petitioner had been convicted of the 1994 homicide. (Id. at 11.) Claim 7

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alleges that the prosecutor committed misconduct by urging the jury to consider the 1994 accident

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for purposes other than that instructed by the trial court. (Id. at 11.) Claim 8 alleges cumulative

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error. (Id. at 12.)

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On February 20, 2014, the undersigned granted the motion to lift the stay and directed

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respondent to file a response to the petition. (ECF No. 25.) On May 5, 2014, respondent filed the

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pending motion to dismiss. (ECF No. 27.)

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Claim 7

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In his opposition, petitioner argues that claim 7 should be “subsumed” into claim 2. (ECF

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No. 28 at 6-7.) For the following reasons, the undersigned finds that claim 7 is indistinguishable

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from claim 2.

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Claim 2 alleges that the prosecutor committed misconduct during closing argument with

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his argument regarding the 1994 accident, for which petitioner had been convicted. (ECF No. 19-

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2 at 8-9.) Petitioner argues that the prosecutor moved to introduce evidence of the 1994 accident

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on the grounds that that it supported an inference of implied malice in the 2006 accident. (Id.)

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The prosecutor then argued to the jury that petitioner’s “defense was involuntary intoxication,”

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that the 1994 accident evidence was not submitted “to show some type of character in conformity

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with this additional evidence,” but “[p]eople act of conformity with character all of the time and if

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you realistically look at the evidence in this case, [petitioner] is acting within character as,

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unfortunately, some people do.” (Id.) Petitioner argues that the prosecutor improperly went on to
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argue that there are “4 dead bodies...he’s killed before...it’s time to accept responsibility...he got

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away with it before...and he used the same excuse again.” (Id.) Petitioner argues that this

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argument was improper because, as the prosecutor knew, petitioner had been convicted and

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sentenced for the 1994 charges. (Id.)

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Claim 7 alleges that the prosecutor committed misconduct by urging the jury to consider

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the 1994 accident for purposes other than that instructed by the trial court. (Id. at 11.) Petitioner

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argues that the prosecutor introduced evidence of the 1994 accident to prove petitioner’s

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knowledge of the dangerousness of driving while sleepy. (Id.) The trial court instructed the jury

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that this evidence could be considered for the purpose of showing whether or not petitioner knew

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that driving while falling asleep was dangerous. (Id.) Petitioner argues that the prosecutor

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committed misconduct when he argued that the 1994 accident was not introduced to show that

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petitioner was acting in conformity with his character when he again killed 2 people in 2006, but

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if the jury looked at the evidence it would see that petitioner was acting in conformity with his

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character. (Id.)

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Claim 7 appears to be largely a restatement of some of the argument made in claim 2.

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Because claim 2 is exhausted, not barred by the statute of limitations or procedurally defaulted,

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neither is claim 7. However, the undersigned recommends that petitioner be directed to file a

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second amended petition clarifying that claim 7 is “subsumed” by claim 2, thereby deleting claim

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7 altogether.

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Statute of Limitations

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Respondent argues that the claims stayed pursuant to Kelly, supra, i.e, claims 3, 5, 6 and

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8, and raised in the amended petition filed January 23, 2014, are barred by the statute of

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limitations.

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28 U.S.C. § 2244(d)(1) contains the statute of limitations applicable to this action:

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A 1-year period of limitation shall apply to an application for a writ
of habeas corpus by a person in custody pursuant to the judgment of
a State court. The limitation period shall run from the latest of –

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(A) the date on which the judgment became final by the conclusion
of direct review of the expiration of the time for seeking such
review;
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(B) the date on which the impediment to filing an application
created by State action in violation of the Constitution or laws
of the United States is removed, if the applicant was prevented
from filing by such State action;

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(C) the date on which the constitutional right asserted was initially
recognized by the Supreme Court, if the right has been newly
recognized by the Supreme Court and made retroactively
applicable to cases on collateral review; or
(D) the date on which the factual predicate of the claim or claims
presented could have been discovered through the exercise of
due diligence.
28 U.S.C. § 2244(d)(1).
Respondent argues that the statute of limitations is calculated pursuant to the date on

10

which petitioner’s conviction became final. Petitioner does not dispute that this is the proper

11

limitations period.

12

“Direct review” includes the period within which a petitioner can file a petition for a writ

13

of certiorari from the United States Supreme Court, whether or not the petitioner actually files a

14

petition. Bowen v. Roe, 188 F.3d 1157, 1159 (9th Cir. 1999). Accordingly, if a petitioner fails to

15

seek a writ of certiorari from the United States Supreme Court, the one-year limitations period

16

begins to run on the date the ninety-day period defined by United State Supreme Court Rule 13

17

expires. See Miranda v. Castro, 292 F.3d 1063, 1065 (9th Cir. 2002) (where petitioner did not

18

file petition for certiorari, his conviction became final 90 days after the California Supreme Court

19

denied review); Bowen, 188 F.3d at 1159 (same).

20

In the instant case, petitioner did not file a petition for writ of certiorari with the United

21

States Supreme Court. Therefore, the statute of limitations began running on November 30,

22

2010, i.e., ninety days after the California Supreme Court denied his petition for review on

23

September 1, 2010. Petitioner had one year from November 30, 2010, to file a timely federal

24

habeas petition, i.e., until November 30, 2011. The claims raised in the amended petition filed

25

January 23, 2014, are not timely unless petitioner is entitled to statutory or equitable tolling.

26

Statutory Tolling

27

The statute of limitations is tolled during the time that a properly filed application for state

28

post-conviction or other collateral review is pending in state court. 28 U.S.C. § 2244(d)(2). A
12

1

properly filed application is one that complies with the applicable laws and rules governing

2

filings, including the form of the application and time limitations. Artuz v. Bennett, 531 U.S. 4, 8

3

(2000). An application is pending during the time that “a California petitioner completes a full

4

round of [state] collateral review,” so long as there is no unreasonable delay in the intervals

5

between a lower court decision and the filing of a petition in a higher court. Delhomme v.

6

Ramirez, 340 F.3d 817, 819 (9th Cir. 2003), abrogated on other grounds as recognized by

7

Waldrip v. Hall, 548 F.3d 729 (9th Cir. 2008) (per curium) (internal quotation marks and citations

8

omitted); see Evans v. Chavis, 546 U.S. 189, 193–94 (2006); see Carey v. Saffold, 536 U.S. 214,

9

220, 222–26 (2002); see also Nino v. Galaza, 183 F.3d 1003, 1006 (9th Cir. 1999).

10

Respondent argues that the statute of limitations was tolled from November 23, 2010, i.e.,

11

when petitioner filed his first state habeas petition in the Superior Court, until March 24, 2011,

12

i.e., when the California Court of Appeal denied his petition without prejudice to petitioner

13

raising ground two in a petition filed in the Superior Court. Respondent argues that the tolling

14

period again commenced when petitioner filed his second petition in the Superior Court on April

15

29, 2011, and ended on June 20, 2011, when the Superior Court denied the petition.

16

The undersigned agrees with respondent’s reasoning set forth above. Petitioner’s second

17

petition filed in the Superior Court, raising a new claim, constituted a separate “round” of habeas

18

petitions. There is no statutory tolling for the period between sets or “rounds” of state habeas

19

petitions. Biggs v. Duncan, 339 F.3d 1045 (9th Cir. 2003) (no tolling once California Supreme

20

Court denied review); see also Smith v. Duncan, 297 F.3d 809 (9th Cir. 2002), abrogation on

21

other grounds recognized by Moreno v. Harrison, 245 Fed.Appx. 606 (9th Cir. 2007) (no tolling

22

during gap between first set of state petitions and second). In Delhomme v. Ramirez, 340 F.3d

23

817, 820 (9th Cir. 2003), abrogated on other grounds as recognized by Waldrip v. Hall, 548 F.3d

24

729 (9th Cir. 2008) (per curiam), the Ninth Circuit held that a petitioner begins a separate round

25

of review “each time [he] files a new habeas petition at the same or a lower level” of the state

26

court system. See also Nino, 183 F.3d at 1006–07 (intervals tolled between state court’s

27

disposition of a state habeas petition and the filing of “a petition at the next state appellate

28

level.”).
13

1
2
3

Petitioner’s first two rounds of state habeas petitions, discussed above, tolled the statute of
limitations for 175 days, extending the limitations date to May 23 2012.
The undersigned next considers whether petitioner is entitled to statutory tolling for his

4

next round of state habeas petitions, i.e., his third round, which began when he filed his third

5

habeas petition in the Superior Court on January 11, 2012.

6

The undersigned first finds that petitioner is not entitled to interval tolling for the time

7

between his second and third round of state habeas petitions, i.e, from June 20, 2011, to January

8

11, 2012, because his third round of state habeas petitions raised claims unrelated to those raised

9

in his first and second round of state habeas petitions. See Biggs v. Duncan, supra; Delhomme v.

10

Ramirez, supra; Smith v. Duncan, supra.

11

Respondent argues that petitioner’s third habeas petition filed in the Superior Court on

12

January 11, 2012, and denied on March 6, 2012, did not toll the limitations period because the

13

Superior Court denied the petition as successive and untimely. The statute of limitations is tolled

14

during the period in which a “properly filed” application for post-relief is pending. See 28 U.S.C.

15

§ 2244(d)(2). However, a petition is not considered “properly filed” when a state court denies the

16

petition as untimely or untimely. See Porter v. Ollison, 620 F.3d 952, 958 (9th Cir. 2010).

17

As noted above, on August 8, 2012, the California Court of Appeal issued an order

18

directing the Superior Court to vacate the March 6, 2012 order and reassign petitioner’s petition

19

to a different judge. (ECF No. 27 at 30.) The California Court of Appeal found that the Superior

20

Court judge who considered petitioner’s petition filed January 11, 2012, was disqualified from

21

considering the petition. (Id. at 29.) Because the California Court of Appeal vacated the Superior

22

Court’s March 6, 2012 order because the judge who considered the petition was disqualified, the

23

petition was not “improperly” filed.

24

Although the Superior Court’s March 6, 2012 order was vacated, petitioner was

25

attempting to exhaust his state court remedies when he filed his habeas petition in the Superior

26

Court on January 11, 2012. Accordingly, petitioner is entitled to statutory tolling from the time

27

he filed that petition until the Court of Appeal vacated the Superior Court’s order on August 8,

28

2012, i.e., for 210 days.
14

1

As noted above, on October 11, 2012, the Superior Court again denied the petition as

2

untimely and/or successive. The California Court of Appeal then found claims 3, 5, 6 and 8

3

(designated as claims E, C(1), C(2), F and H, respectively) to be untimely and successive. While

4

the California Supreme Court next denied the petition for review without comment or citation,

5

“[w]here there has been one reasoned state judgment rejecting a federal claim, later unexplained

6

orders upholding that judgment or rejecting the same claim rest upon the same ground.” Ylst v.

7

Nunnemaker, 501 U.S. 797, 803 (1991). Under Ylst, it may be presumed that the California

8

Supreme Court denied claims 3, 5, 6 and 8 for the same reasons as the California Court of

9

Appeal.

10

In Pace v. DiGuglielmo, 544 U.S. 408, 414, (2005), the U.S. Supreme Court held that

11

“when a postconviction petition is untimely under state law, ‘that [is] the end of the matter’ for

12

purposes of § 2244(d)(2).” Here, the Superior Court, California Court of Appeal and Supreme

13

Court denied petitioner’s claims 3, 5, 6 and 8 as untimely and/or successive, and those

14

determinations bind the undersigned. Therefore, petitioner is not entitled to statutory tolling for

15

those state habeas petitions.

16

Petitioner is entitled to statutory tolling of 210 days for his third round of state habeas

17

petitions. Adding 210 days to May 12, 2012, brings the limitations period to December 8, 2012.

18

With statutory tolling, the at-issue claims are not timely.2

19

Equitable Tolling

20

Petitioner makes no argument in support of equitable tolling. Miranda v. Castro, 292 F.3d

21

1063, 1066 (9th Cir. 2002) (the petitioner bears the burden of showing that equitable tolling is

22

appropriate).

23

Conclusion

24

For the reasons discussed above, the undersigned finds that claims 3, 5, 6 and 8 are not

25

timely.

26
27
28

2

With regard to petitioner’s federal habeas petition, the undersigned observes that the filing of a
federal habeas petition does not toll the statute of limitations. Duncan v. Walker, 533 U.S. 167,
172-75 (2001).
15

1

Relation Back

2

The March 13, 2012 findings and recommendations addressing petitioner’s motion to stay

3

noted that in step three of the Kelly procedure, a petitioner is allowed to add his newly exhausted

4

claims back into the federal petition if the claims are independently timely under the statute of

5

limitations or “relate back” to the exhausted claims in the pending petition. (ECF No. 17 at 9-10.)

6

Neither party has addressed whether claims 3, 5, 6, or 8 relate back to the previously exhausted

7

claims. However, the undersigned herein finds claims 3, 5, 6 and 8 to be procedurally barred.

8

For this reason, the undersigned need not consider whether these claims relate back to the

9

previously exhausted claims.

10

Procedural Bar

11

Legal Standard

12

A federal court will not review questions of federal law decided by a state court if the

13

decision rests on a state law ground that is independent of the federal ground and is adequate to

14

support the judgment. Coleman v. Thompson, 501 U.S. 722, 729–30 (1991). In cases in which a

15

state prisoner has defaulted his claims in state court pursuant to an independent and adequate state

16

procedural rule, federal habeas review of the claims is barred unless the prisoner can demonstrate

17

cause for the default and actual prejudice as a result of the alleged violation of federal law, or

18

demonstrate that a failure to consider the claims will result in a fundamental miscarriage of

19

justice. Id. at 750

20

Independent and Adequate Grounds for Procedural Bar

21

The undersigned first considers whether the procedural bars cited by the state courts

22
23

constituted adequate and independent state procedural rules.
The California Court of Appeal found that claims 3, 5, 6, and 8 were procedurally barred.

24

(ECF No. 19-5 at 1, petitioner’s exhibit 3.) The California Supreme Court denied petitioner’s

25

petition for review without comment or citation. (ECF No. 19-3, petitioner’s exhibit 1.) Where,

26

as here, the California Supreme Court denies a petitioner’s claims without comment, the state

27

high court’s “silent” denial is considered to last on the last reasoned decision on these claims, in

28

this case, the grounds articulated by the California Court of Appeal. See Ylst v. Nunnemaker,
16

1

501 U.S. 797, 803-06 (1991). Accordingly, the undersigned considers whether the procedural

2

grounds relied on by the California Court of Appeal were adequate and independent state

3

procedural rules.

4

The California Court of Appeal found that claims 3, 5, 6, and 8 were successive, citing In

5

re Clark, 5 Cal.4th 750 (1993). In re Clark stands for the proposition that absent justification for a

6

failure to present all known claims in a single, timely habeas petition, a successive petition will be

7

denied. Arroyo v. Curry, 2009 WL 723877, at *5 (N.D. Cal. Mar. 18, 2009). Although the Ninth

8

Circuit has not ruled on whether California’s bar on successive petitions constitutes a valid

9

grounds for procedural default of federal claims, several district courts, in well-reasoned

10

decisions have concluded that it does. See, e.g., Rutledge v. Katavich, 2012 WL 2054975, at *7

11

(N.D. Cal. June 5, 2012) (California’s procedural rule against successive petitions bars federal

12

habeas review); Arroyo, 2009 WL 723877, at *4-6. This court adopts the reasoning of those

13

decisions and finds that In re Clark constitutes an independent and adequate state procedural

14

ground for the denial of claims 3, 5, 6 and 8.

15

The California Court of Appeal found that claims 3, 5, 6 and 8 were untimely, citing In re

16

Robbins, 18 Cal.4th 770, 77 (1998). The Ninth Circuit has held that California’s “substantial

17

delay” timeliness standard satisfies the “independent and adequate” requirement. See Bennett v.

18

Mueller, 322 F.3d 573, 582–83 (2003); see also Walker v. Martin, 131 S. Ct. 1120, 1131 (2011)

19

(finding that California’s timeliness standard is adequate).

20

The California Court of Appeal also found that claim 3 was barred pursuant to In re

21

Dixon, 41 Cal.2d 756, 759 (1953). In re Dixon sets forth California’s rule that “habeas corpus

22

cannot serve as a substitute for an appeal, and, in the absence of special circumstances

23

constituting [sic] an excuse for failure to employ that remedy, the writ will not lie where the

24

claimed errors could have been, but were not, raised upon a timely appeal from a judgment of

25

conviction.” 41 Cal.2d at 759. The Dixon rule satisfies the “independent and adequate”

26

requirement for procedural bars. See Smith v. Crones, 2010 WL 1660240 at *1) (E.D. Cal. 2010)

27

////

28

////
17

1

(Chief Judge Kozinski concluding that Dixon rule is independent and adequate).3

2
3

For the reasons discussed above, the undersigned finds the state procedural rules cited by
the California Court of Appeal were adequate and independent.

4

Cause and Prejudice

5

In his opposition, petitioner argues that he satisfies the cause and prejudice exception to

6

the procedural default rule. With respect to claims 5 and 6, alleging ineffective assistance of

7

counsel, petitioner argues that he did not raise these claims sooner due to failings by appellate

8

counsel. (ECF No. 28 at 3.) Petitioner argues that his appellate counsel was ineffective for

9

failing to raise these claims on direct appeal.4 (Id. at 4.)

10

In California, as a general rule, claims of ineffective assistance of counsel are more suited

11

for habeas corpus than direct appeal as they involve consideration of matters outside the record.

12

People v. Mendoza Tello, 15 Cal.4th 264, 266-67 (1997); see also Rodriguez v. Adams, 545

13

Fed.Appx. 620, 622 (9th Cir. 2013) (quoting Trevino v. Thaler, 133 S. Ct. 1911, 1921 (2013))

14

(“California’s ‘state procedural framework, by reason of its design and operation, makes it highly

15

unlikely in a typical case that a defendant will have a meaningful opportunity to raise a claim of

16

ineffective assistance of trial counsel on direct appeal.”) Accordingly, the undersigned cannot

17
3

18
19
20
21

The California Court of Appeal also cited In re Waltreus, 62 Cal.2d 218 (1965). A Waltreus
citation does not affect the determination regarding procedural default. Ylst v. Nunnemaker, 501
U.S. 797, 804 n. 3 (1991) (observing that with respect to California’s Waltreus rule: “Since a
later state decision based upon ineligibility for further state review neither rests upon procedural
default nor lifts a pre-existing procedural default, its effect upon the availability of federal habeas
is nil...”).
4

22
23
24
25
26
27
28

In support of his argument for cause based on ineffective assistance of appellate counsel,
petitioner cites Martinez v. Ryan, 132 S. Ct. 1309 (2012). Martinez is not applicable to this
argument for the following reasons. In Martinez, the Supreme Court held that the ineffective
assistance of post-conviction counsel, i.e., not appellate counsel, “at initial-review collateral
review proceedings”—while not stating a constitutional claim itself—may establish cause to
excuse procedural default of claims of ineffective assistance of trial counsel when a postconviction proceeding represents the first opportunity under state law for a petitioner to litigate
such claims. Id. at 1315. (italics added). Martinez is not applicable to petitioner’s instant
argument for cause because he does not claim that post-conviction counsel was ineffective for
failing to raise these claims at an initial review proceeding. Moreover, petitioner’s default of
these claims did not occur during initial-review collateral review proceedings. The default
occurred during petitioner’s third round of state habeas.
18

1

find that appellate counsel was ineffective for failing to raise claims 5 and 6 on direct appeal.

2

Moreover, an allegation of ineffective assistance of appellate counsel as cause for

3

procedural default “is itself an independent constitutional claim” and is subject to the same

4

exhaustion requirement as other habeas claims. See Edwards v. Carpenter, 529 U.S. 446, 451–54

5

(2000). It does not appear from the record that petitioner has exhausted any claim alleging that

6

appellate counsel was ineffective for failing to raise these ineffective assistance of counsel

7

claims.5

8
9

For the reasons discussed above, the undersigned that petitioner has not demonstrated
cause with respect to his default of claims 5 and 6.

10

With respect to claim 3, petitioner argues that the trial court improperly excluded evidence

11

that he had, in fact, been convicted of crimes and punished for the 1994 accident. Petitioner

12

argues that his default of claim 3 should be excused due to ineffective assistance of appellate

13

counsel. While the factual basis of claim 3 was alleged in state court on direct appeal, the federal

14

constitutional basis was not asserted. Petitioner argues that his appellate counsel was ineffective

15

for failing to argue that the trial court violated his federal constitutional rights in connection with

16

claim 3.

17

The undersigned cannot locate any record demonstrating that petitioner exhausted a claim

18

alleging that appellate counsel was ineffective for failing to allege a violation of petitioner’s

19

federal constitutional rights in connection with claim 3. Accordingly, petitioner has not

20

demonstrated cause for his default of claim 3. See Edwards v. Carpenter, supra.

21

Claim 8 alleges cumulative error. Petitioner argues that his default of this claim is

22

excused due to ineffective assistance of appellate counsel. The undersigned cannot locate any

23

record demonstrating that petitioner exhausted a claim alleging that appellate counsel was

24

ineffective for failing to raise a claim alleging cumulative error. See Edwards v. Carpenter, supra.

25
26
27
28

Because the undersigned finds that petitioner has not demonstrated cause with respect to
his defaulted claims, there is no need to consider the prejudice element.
5

Petitioner’s petition for review filed in the California Supreme Court does not raise an
ineffective assistance of appellate counsel claim.
19

1

Fundamental Miscarriage of Justice

2

As noted above, a habeas petitioner “may also qualify for relief from his procedural

3

default if he can show that the procedural default would result in a ‘fundamental miscarriage of

4

justice.’” Cook v. Schriro, 538 F .3d 1000, 1028 (9th Cir. 2008) (citing Schlup v. Delo, 513 U.S.

5

298, 321 (1995)). This exception to the procedural default rule is limited to habeas petitioners

6

who can establish that “a constitutional violation has probably resulted in the conviction of one

7

who is actually innocent[.]” Schlup, 513 U.S. at 327. See also Murray v. Carrier, 477 U.S. 478,

8

496 (1986); Cook, 538 F.3d at 1028. “‘To be credible, such a claim requires petitioner to support

9

his allegations of constitutional error with new reliable evidence—whether it be exculpatory

10

scientific evidence, trustworthy eye-witness accounts, or critical physical evidence—that was not

11

presented at trial.’” Cook, 538 F.3d at 1028 (quoting Schlup, 513 U.S. at 324).

12

For the following reasons, the undersigned finds that the record does not support the

13

miscarriage of justice exception. Claims 3, 5 and 6 all concern the admission of evidence

14

regarding the 1994 incident and the trial court’s exclusion of evidence regarding petitioner’s

15

conviction for crimes related to this incident. These claims are not based on new reliable

16

evidence demonstrating petitioner’s actual innocence. The undersigned further finds that claim 8,

17

alleging cumulative error, also does not meet the miscarriage of justice exception as it is not

18

based on claims alleging actual innocence.

19

Exhaustion

20

Respondent argues that claims 3, 5, 6, and 8 are not exhausted because in the petition for

21

review filed in the California Supreme Court, petitioner only challenged the procedural default

22

imposed by the California Court of Appeal. Respondent argues that petitioner did not address

23

the merits of claims 3, 5, 6 and 8 in the petition for review filed in the California Supreme Court.

24

Under 28 U.S.C. § 2254(b), habeas relief may not be granted unless the petitioner has

25

exhausted the remedies available in the courts of the state. Exhaustion requires that the

26

petitioner’s contentions be fairly presented to the state courts and be disposed of on the merits by

27

the highest court of the state. See James v. Borg, 24 F.3d 20, 24 (9th Cir. 1994). As a general

28

rule, a petitioner satisfies the exhaustion requirement by fairly presenting the federal claim to the
20

1

appropriate state courts in the manner required by the state courts. Casey v. Moore, 386 F.3d at

2

915–16 (9th Cir. 2004).

3

If federal habeas claims were not fairly presented to the state courts, but an independent

4

and adequate state procedural rule exists which bars their review in federal court, then a habeas

5

petitioner who has defaulted his federal claims in state court meets the technical requirement for

6

exhaustion. Casey, 386 F.3d at 920 (“Because at the time Casey filed for habeas relief in the

7

federal district court no further state remedies were available to him, his claims are exhausted.”)

8

(citing Coleman, 501 U.S. at 732).

9

In the instant case, petitioner meets the technical requirement for exhaustion because

10

claims 3, 5, 6 and 8 are procedurally barred. No further remedies are available to petitioner

11

because these claims were found to be untimely and successive. Accordingly, respondent’s

12

motion to dismiss these claims as unexhausted is without merit.

13

Conclusion

14

The undersigned recommends that respondent’s motion to dismiss claims 3, 5, 6 and 8 be

15

granted on grounds that they are barred by the statute of limitations and procedurally defaulted.

16

Respondent’s motion to dismiss claim 7 should be denied on grounds that it is “subsumed” by

17

claim 2. The undersigned recommends that following the adoption of these findings and

18

recommendations, petitioner be ordered to file a second amended petition containing claims 1, 2

19

and 4 only. As discussed above, petitioner should omit claim 7 as it is “subsumed” by claim 2.

20

Because preliminary procedural matters have been resolved, the second amended petition need

21

only contain a discussion of the merits of petitioner’s claims.

22

Accordingly, IT IS HEREBY RECOMMENDED that respondent’s motion to dismiss

23

(ECF No. 27) be granted as to claims 3, 5, 6, and 8 on grounds that they are barred by the statute

24

of limitations and procedurally barred; respondent’s motion to dismiss claim 7 be denied without

25

prejudice; following adoption of these findings and recommendations, petitioner be ordered to file

26

a second amended petition raising claims 1, 2 and 4 only.

27

These findings and recommendations are submitted to the United States District Judge

28

assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within fourteen days
21

1

after being served with these findings and recommendations, any party may file written

2

objections with the court and serve a copy on all parties. Such a document should be captioned

3

“Objections to Magistrate Judge’s Findings and Recommendations.” If petitioner files objections,

4

he shall also address whether a certificate of appealability should issue and, if so, why and as to

5

which issues. A certificate of appealability may issue under 28 U.S.C. § 2253 “only if the

6

applicant has made a substantial showing of the denial of a constitutional right.” 28 U.S.C. §

7

2253(c)(3). Any response to the objections shall be served and filed within fourteen days after

8

service of the objections. The parties are advised that failure to file objections within the

9

specified time may waive the right to appeal the District Court’s order. Martinez v. Ylst, 951

10

F.2d 1153 (9th Cir. 1991).

11

Dated: August 26, 2014

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