Johnson v. Brown, et al

Filing 237

ORDER re Procedural Default. Signed by Judge Thelton E. Henderson on 05/12/2014. (Attachments: # 1 Certificate/Proof of Service)(tmi, COURT STAFF) (Filed on 5/13/2014)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE NORTHERN DISTRICT OF CALIFORNIA

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For the Northern District of California

United States District Court

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LAVERNE JOHNSON,
Petitioner,

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NO. C 95-0305 TEH
ORDER RE PROCEDURAL
DEFAULT

v.
DEATH PENALTY CASE
KEVIN CHAPPELL, Warden of
California State Prison at San Quentin,

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Respondent.

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INTRODUCTION

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On December 17, 1987, petitioner was convicted by a San Mateo County jury of two counts

21 of first degree murder, Cal. Penal Code § 187, and one count of arson, Cal. Penal Code § 451(b).
22 The jury also found true the multiple murder special circumstance allegation, Cal. Penal Code §
23 190.2(a)(3). The same jury fixed the penalty at death on February 5, 1988. On October 18, 1993,
24 petitioner’s conviction and sentence were affirmed on direct appeal. See People v. Johnson, 6
25 Cal.4th 1 (1993).
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Petitioner filed a habeas petition on April 22, 1997.1 On that same day, he also filed his

2 second state habeas petition in the California Supreme Court. On May 2, 1997, respondent filed a
3 motion to dismiss the federal petition on the ground that it contained unexhausted claims. On
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November 25, 1997, the California Supreme Court denied the second state habeas petition. On

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November 26, 1997, petitioner filed an amended federal petition in which he incorporated claims

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from the second state habeas petition.
Respondent originally filed an Answer, a Memorandum of Points and Authorities in Support

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9 of Answer and a Motion for Summary Judgment on October 22, 1999. The Motion was denied by

11 subsequently filed a Supplemental Answer, which included briefing on procedural issues and on the
For the Northern District of California

United States District Court

10 the court as premature. After various matters were resolved, petitioner filed a Traverse; respondent

12 merits of petitioner’s claims. Petitioner filed a responsive Memorandum of Points and Authorities in
13 Support of Non-Hearing Claims; respondent subsequently filed, per court request, a supplemental
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brief.

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The Court has previously found that Claims B, D, N, O, Q and R were not procedurally

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defaulted, and thus were suitable for disposition on the merits. Respondent now maintains that an
intervening change in the law, specifically the United States Supreme Court's decision in Walker v.

19 Martin, 131 S. Ct. 1120 (2011), calls the Court's earlier findings on procedural default into question.
20 The Court will construe respondent's argument as a motion for reconsideration. For the following
21 reasons, respondent's motion to reconsider the Court's earlier findings regarding procedural default is
22 DENIED.
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In Woodford v. Garceau, the United States Supreme Court held that the provisions of the

25 Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”) apply to all cases in which a

petition for a writ of habeas corpus was filed after April 24, 1996, the effective date of AEDPA. 538

26 U.S. 202, 206-08 (2003). In light of Garceau, AEDPA applies to petitioner's habeas petition, which
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was filed on April 22, 1997.
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Claims F, G, H, I, J, K, L and W have already been denied by the Court on the merits. The

28 remainder of petitioner’s claims that have been briefed will be addressed in subsequent orders.
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STANDARD OF REVIEW
Under the doctrine of procedural default, federal courts will not review “a question of federal

3 law decided by a state court if the decision of that court rests on a state law ground that is
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independent of the federal question and adequate to support the judgment.” Coleman v. Thompson,

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501 U.S. 722, 729 (1991). The doctrine of procedural default is a specific application of the general

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doctrine as to adequate and independent state grounds. Fields v. Calderon, 125 F. 3d 757, 762 (9th
Cir. 1997). It bars a federal court from granting relief on a claim when a state court declined to

9 address the claim because the petitioner failed to meet a state procedural requirement. Id.
In the habeas context, the procedural default doctrine furthers the interests of comity and

11 federalism. Coleman, 501 U.S. at 730. It helps ensure that the state criminal trial remains the "main
For the Northern District of California

United States District Court

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12 event" rather than a "tryout on the road" for a later federal habeas proceeding. Wainwright v. Sykes,
13 433 U.S. 72, 90 (1977).
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Procedural default analysis proceeds in two steps. First, the court must determine whether

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the procedural rule the state court invoked to bar the claim is both "independent" and "adequate" to

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preclude federal review. “For a state procedural rule to be “independent,” the state law basis for the
decision must not be interwoven with federal law.” LaCrosse v. Kernan, 244 F.3d 702, 704 (9th Cir.

19 2001), citing Michigan v. Long, 463 U.S. 1032, 1040-41 (1983). A state law ground is interwoven
20 with federal law in those cases where application of the state procedural rule requires the state court
21 to resolve a question of federal law. Park v. California, 202 F.3d 1146, 1152 (9th Cir. 2000), citing
22 Ake v. Oklahoma, 470 U.S. 68, 75 (1985). If the state court does not make clear that it is resting its
23 decision on an independent and adequate state ground, it is presumed that the state denial was based
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at least in part upon federal grounds. Calderon v. United States District Court ("Bean"), 96 F.3d

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1126, 1129 (9th Cir. 1996). In 1998, the Supreme Court of California made clear that it would no

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longer consider federal law when denying a habeas claim as procedurally barred on grounds of

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1 untimeliness, except when applying an exception where petitioner was convicted or sentenced
2 pursuant to an invalid statute. In re Robbins, 18 Cal. 4th 770, 811-12 (1998).
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For a state procedural rule to be “adequate,” it must be clear, well-established and
consistently applied. Bean, 96 F.3d at 1129. The issue of whether a state procedural rule is

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adequate to foreclose federal review is itself a federal question. Douglas v. Alabama, 380 U.S. 415,

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petitioner committed the default. Fields, 125 F.3d at 760.
ANALYSIS
This Court previously denied respondent's motion to dismiss Claims B, D, N, O, Q and R as

11 procedurally defaulted based on the California Supreme Court's denial of those claims on
For the Northern District of California

United States District Court

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422 (1965). The adequacy of a state procedural rule must be assessed as of the time when the

12 untimeliness grounds. Respondent now asks the Court to reconsider that order, and find those
13 claims defaulted due to an intervening change in the law, specifically the United States Supreme
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Court's decision in Walker v. Martin, 131 S. Ct. 1120 (2011).

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"California does not employ fixed statutory deadlines to determine the timeliness of a state

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prisoner's petition for habeas corpus. Instead, California directs petitioners to file known claims as
promptly as the circumstances allow." Martin, 131 S. Ct. 1124 (internal quotations omitted.) In

19 order to avoid the bar of untimeliness, a petitioner must establish "I) absence of substantial delay, ii)
20 good cause for the delay, or iii) that the claim falls within an exception to the bar of untimeliness."
21 Robbins, 18 Cal. 4th at 780. Under the California Supreme Court Policies Regarding Cases Arising
22 From Judgments Of Death (“Policies”), a habeas corpus petition is presumed to be filed without
23 substantial delay if it is filed within 180 days from the due date of the reply brief on direct appeal, or
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within 36 months after the appointment of habeas counsel, whichever is later.

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Several leading decisions influence the analysis of untimeliness defaults. In 1993, the

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California Supreme Court decided Clark, 5 Cal. 4th 750, clarifying the law regarding untimeliness.
Prior to at least 1993, the untimeliness bar was not firmly established or consistently applied, and
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1 was therefore found to be inadequate to bar federal review. Fields, 125 F. 3d 763-64. In 1998, the
2 California Supreme Court decided Robbins, declaring that it would no longer consider federal law
3 when denying a habeas claim as procedurally barred for untimeliness, and thus establishing the
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independence of California's untimeliness bar. 18 Cal. 4th at 811-12. Even for defaults occurring

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after Clark and Robbins, however, District Courts within the Ninth Circuit held that California's

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timeliness bar was inadequate because it was applied inconsistently consistently. See, e.g., Dennis v.
Brown, 361 F. Supp. 2d 1124, 1130-34 (N.D. Cal. 2005).
In Martin, which was an appeal from a Ninth Circuit decision, the United States Supreme

11 as "framed . . . for habeas petitioners in a trilogy of cases" is adequate to bar federal habeas review.
For the Northern District of California

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10 Court created an intervening change in controlling law by holding that California's timeliness rule,

12 131 S. Ct. at 1131. Specifically, the Court held that after Robbins, Clark and In re Gallegos, 18 Cal.
13 4th 825 (1998), California's untimeliness bar was both independent and adequate, and thus sufficient
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to trigger a procedural bar to federal habeas review.

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Petitioner contends that Martin does not bar review of his claims because, even under

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Martin, the untimeliness rule was inadequate at the time that his particular untimeliness defaults
occurred. He contends that his defaults occurred before the Clark decision, prior to which the

19 untimeliness rule was inadequate, and certainly before the Robbins decision, prior to which the
20 untimeliness rule was not independent of federal law.
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The application of the untimeliness bar is tethered to the date on which the relevant habeas

22 petition is filed. See Calderon v. United States Dist. Court for the Eastern Dist. of California
23 ("Hayes"), 103 F.3d 72, 75 (9th Cir. 1996) (adequacy of timeliness standards measured as of date
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first state habeas petition was filed); Bean, 96 F.3d at 1131; Bennett v. Mueller, 322 F.3d 573, 579

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(9th Circuit 2003) (citing cases sharing the common theme that “when the habeas proceeding has

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been initiated before the Clark/Robbins decisions were announced, the untimeliness rule cannot
stand as an independent and adequate state ground barring federal review.”) The time of any
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1 alleged default is when petitioner first had the opportunity to raise the claims at issue, yet failed to
2 do so. See, e.g. Hayes, 103 F. 3d at 75.
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In this case, petitioner's defaults occurred on April 15, 1993, when he filed his first state
habeas petition. The Clark decision was issued subsequently, on July 19, 1993. The Ninth Circuit

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has held that California's untimeliness rule cannot preclude federal review where the default

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occurred before the issuance of Clark. See Morales v. Calderon, 85 F. 3d 1387 (9th Cir. 1996).
Furthermore, the California Supreme Court did not hold until the Robbins decision in 1998 that

9 California's timeliness bar was independent. Because Martin confirmed that Robbins, Clark and

11 that opinion calls into question the Ninth Circuit law holding that pre-Clark defaults such as
For the Northern District of California

United States District Court

10 Gallegos set the independence and adequacy of the California timeliness requirement, nothing in

12 etitioner's do not bar federal review. District courts considering Martin have so confirmed. See,
13 e.g., Branner v. Chappell, No. C-90-3219 DLJ, 2014 WL 582811, at *4 (N.D. Cal. Feb. 13, 2014
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(finding that, because petitioner's defaults occurred in 2000, "long after Clark and Robbins were

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decided", the holding of Martin confirmed that "California's untimeliness default was both

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independent and adequate to bar federal review."); Clark v. McEwen, No. 10-CV-02149 AJB, 2012
WL 1205509, at *14 (S.D. Cal. Feb. 28, 2012) (concluding that in Martin, "[t]he Supreme Court

19 examined California's time bar in 2002 and proximate years and concluded that as of that time, the
20 rule was consistently applied.").
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Despite the clear authority that petitioner's pre-Clark and pre-Robbins defaulted claims are

22 not barred from federal review, respondent nonetheless requests that the Court find Claims B, D, N,
23 O, Q and R defaulted. As the foregoing discussion confirms, however, the Martin decision –
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focused on the adequacy of California's timeliness bar after Clark, Robbins and Gallegos – did not

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hold that all defaulted claims were barred from federal review, regardless of when the default

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occurred. Even the California Supreme Court recognized that prior to its decision in Clark, "no
clear guidelines [regarding timeliness] have emerged in our past cases." Clark, 5 Cal. 4th at 763; see
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1 also Morales, 85 F. 3d at 1393 (holding that "the California Supreme Court's timeliness rule, . . .
2 before its further elucidation in Clark, did not afford an adequate and independent state ground
3 barring federal review").
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Because petitioner's defaults occurred prior to the Clark decision in 1993 and the Robbins

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decision in 1998, respondent's argument that the decision finding petitioner's untimely claims not

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defaulted for the purposes of federal review must be reconsidered in light of Martin is without merit.
Respondent's motion to reconsider findings on procedural default is therefore DENIED.
CONCLUSION

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For the foregoing reasons, respondent's motion to reconsider findings on procedural default

11 is DENIED. Thus, Claims B, D, N, O, Q and R may be considered on the merits on federal habeas
For the Northern District of California

United States District Court

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12 review.
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16 Dated: 05/12/2014
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_________________________
THELTON E. HENDERSON
United States District Judge

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