Turner v. Duffy

Filing 15

FINDINGS and RECOMMENDATIONS signed by Magistrate Judge Carolyn K. Delaney on 04/17/17 recommending that respondent's motion to dismiss 11 be granted; and the claim identified as "Claim 1" in petitioner's petition for writ of habeas corpus be dismissed. MOTION to DISMISS 11 referred to Judge William B. Shubb. Objections due within 14 days. (Plummer, M)

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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 ROBERT C. TURNER, 12 No. 2:15-cv-2356 WBS CKD P Petitioner, 13 v. 14 BRIAN DUFFY, 15 FINDINGS AND RECOMMENDATIONS Respondent. 16 17 Petitioner is a California prisoner proceeding through counsel with a petition for writ of 18 habeas corpus under 28 U.S.C. § 2254. He is serving three concurrent 25 years-to-life terms of 19 imprisonment imposed on September 27, 2012 following convictions on three counts of lewd or 20 lascivious acts committed upon child under the age of 14. In his petition, petitioner presents four 21 claims. Respondent has filed a motion to dismiss arguing that the claim identified as “Claim I” 22 should be dismissed based upon “procedural default.” 23 In “Claim I,” petitioner alleges he received ineffective assistance of counsel at trial in 24 violation of the Sixth Amendment as a result of trial counsel’s inadequate investigation. 25 Specifically, petitioner argues counsel should have: 1) investigated whether the victim suffered 26 from “cognitive difficulties” as suggested by the victim’s grandmother and petitioner’s girlfriend, 27 Ms. Delores Johnson; and 2) called Ms. Johnson to impeach the victim and her mother as to 28 whether the victim had ever been left alone with petitioner. 1 1 Petitioner presented this claim to the California Court of Appeal in March of 2016. On 2 March 11, 2016, the court dismissed the claim as untimely under California law and denied the 3 claim on the merits. ECF No. 11 at 58. Subsequently, the claim was denied without comment by 4 the California Supreme Court. Id. at 61-83. Since the California Supreme Court was silent as to 5 the reason petitioner’s claim was rejected, the court presumes the California Supreme Court’s 6 reasoning was the same as the California Court of Appeal. See Ylst v. Nunnemaker, 501 U.S. 7 797, 803 (1991). 8 Respondent argues that the finding by the California Court of Appeal that petitioner’s 9 ineffective assistance of counsel claim is untimely precludes this court from reviewing the claim. 10 Generally speaking, the court will not review a federal claim rejected by a California court if the 11 rejection of the claim is based upon California law “independent of the federal question and 12 adequate to support judgment.” Walker v. Martin, 562 U.S. 307, 315 (2011). 13 There does not appear to be any reasonable basis for an argument that the California Court 14 of Appeal’s rejection of petitioner’s ineffective assistance of counsel claim was not independent 15 of an assessment of petitioner’s actual claim. Also, in Walker, the Supreme Court found that 16 rejection of a federal claim by a California court based upon California’s timeliness rule for state 17 habeas petitions is, generally speaking, an “adequate” basis to preclude federal review of the 18 claim. Id. at 316-21. 19 Petitioner does not argue that a California court’s finding that a federal claim asserted in a 20 state habeas petition is not timely is not a sufficient basis for finding that claim procedurally 21 defaulted in this court. Instead, petitioner challenges the ruling by the California Court of Appeal 22 that petitioner’s ineffective assistance of counsel claim is untimely under California law. As 23 noted by respondent, however, “it is not the province of a federal habeas court to reexamine state- 24 court determinations on state law questions.” Estelle v. McGuire, 502 U.S. 62, 67-68 (1991). 25 The court may still review a claim in a federal habeas petition which arises under federal 26 law and which was rejected by a California Court on “adequate” and “independent” state law 27 grounds if the habeas petitioner demonstrates cause for noncompliance with state law and actual 28 prejudice resulting from the alleged violation of federal law. Coleman v. Thompson, 501 U.S. 2 1 722, 750 (1991). Defaulted claims may also be considered if failure to do so will result in a 2 fundamental miscarriage of justice. Id. Petitioner does not argue “cause” and “prejudice” or 3 fundamental miscarriage of justice, and facts demonstrating either circumstance are not otherwise 4 apparent from the record. 5 6 Based on the foregoing, the court will recommend that respondent’s motion to dismiss be granted and that petitioner’s ineffective assistance of counsel claim be dismissed. 7 In accordance with the above, IT IS HEREBY RECOMMENDED that: 8 1. Respondent’s motion to dismiss (ECF No. 11) be granted; and 9 2. The claim identified as “Claim I” in petitioner’s petition for writ of habeas corpus be 10 dismissed. 11 These findings and recommendations are submitted to the United States District Judge 12 assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within fourteen days 13 after being served with these findings and recommendations, any party may file written 14 objections with the court and serve a copy on all parties. Such a document should be captioned 15 “Objections to Magistrate Judge’s Findings and Recommendations.” Any response to the 16 objections shall be served and filed within fourteen days after service of the objections. The 17 parties are advised that failure to file objections within the specified time may waive the right to 18 appeal the District Court’s order. Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991). 19 Dated: April 17, 2017 _____________________________________ CAROLYN K. DELANEY UNITED STATES MAGISTRATE JUDGE 20 21 22 23 24 25 1 turn2356.pd 26 27 28 3

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