Olive v. Pfeiffer

Filing 24

ORDER DISMISSING CASE. Signed by Judge Richard Seeborg on 1/10/18. The deputy clerk hereby certifies that on 1/10/2018 a copy of this order was served by sending it via first-class mail to the address of each non-CM/ECF user listed on the Notice of Electronic Filing. (cl, COURT STAFF) (Filed on 1/10/2018)

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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 NORTHERN DISTRICT OF CALIFORNIA 10 DAMIEN DWAYNE OLIVE, 11 Case No. 16-cv-02773-RS (PR) United States District Court Northern District of California Petitioner, 12 v. ORDER OF DISMISSAL 13 CHRISTIAN PFEIFFER, 14 Respondent. 15 16 INTRODUCTION 17 Petitioner seeks federal habeas corpus relief from his state convictions. Respondent 18 19 moves to dismiss the petition as procedurally defaulted. (Dkt. No. 19.) For the reasons 20 stated herein, respondent’s motion is GRANTED and the petition is DISMISSED. BACKGROUND 21 In 2013, a San Francisco County Superior Court jury convicted petitioner of first 22 23 degree burglary. The trial court found true sentencing enhancement allegations. Based on 24 the verdict and findings, petitioner was sentenced to nine years in state prison. He 25 appealed. His appellate attorney filed a Wende brief in which he declared that there were 26 no appealable issues.1 In 2014, the state appellate court agreed and affirmed the trial court 27 28 1 People v. Wende, 25 Cal. 3d 436 (1979). 1 judgment. Petitioner did not file a petition for direct review in the state supreme court. In 2015, petitioner filed a habeas petition in the state supreme court. He raised two 2 3 claims: the trial evidence was not sufficient to support the verdict; and some evidence was 4 obtained in violation of the Fourth Amendment. This petition was denied in 2016. The 5 state supreme court’s entire opinion reads as follows: “The petition is denied. (See In re 6 Lessard (1965) 62 Cal. 2d 497, 503; In re Dixon (1953) 41 Cal. 2d 756, 759; In re Lindley 7 (1947) 29 Cal. 2d 709, 723.)” (Respondent’s Renewed Mot. to Dismiss (“MTD”), Ex. D, 8 Dkt. No. 23 at 1.) This federal petition followed the state supreme court’s denial. As grounds for 9 federal habeas relief, petitioner claims there was insufficient evidence to support his 11 United States District Court Northern District of California 10 conviction for burglary.2 DISCUSSION 12 Respondent contends that petitioner’s claim is procedurally defaulted. The Court 13 14 agrees and also concludes that his claim is meritless. 15 I. Procedural Default Principles Federal habeas relief is barred if a state denied claims because a petitioner failed to 16 17 comply with the state’s requirements for presenting claims. Coleman v. Thompson, 501 18 U.S. 722, 731-32 (1991). The state’s grounds for denying the claim “must be independent 19 of the federal question and adequate to support the judgment.” Id. at 729. A state 20 procedural bar is “adequate” if it is “clear, consistently applied, and well-established at the 21 time of the petitioner’s purported default.” Calderon v. U.S. Dist. Ct. (Bean), 96 F.3d 22 1126, 1129 (9th Cir. 1996) (quoting Wells v. Maass, 28 F.3d 1005, 1010 (9th Cir. 1994)). 23 24 25 26 2 Petitioner also raised a Fourth Amendment claim in his federal habeas petition. The Court dismissed this claim as not cognizable, citing Stone v. Powell, 428 U.S. 465, 481482, 494 (1976) and Gordon v. Duran, 895 F.2d 610, 613-614 (9th Cir. 1990). 27 ORDER OF DISMISSAL CASE NO. 16-cv-02773-RS 28 2 1 The state carries the initial burden of adequately pleading “the existence of an independent and adequate state procedural ground as an affirmative defense.” Bennett v. 3 Mueller, 322 F.3d 573, 586 (9th Cir. 2003). If the state meets this requirement, the burden 4 then shifts to the petitioner “to place that defense in issue,” which the petitioner may do 5 “by asserting specific factual allegations that demonstrate the inadequacy of the state 6 procedure, including citation to authority demonstrating inconsistent application of the 7 rule.” Id. If the petitioner meets this burden, “the ultimate burden” of proving the 8 adequacy of the state bar rests with the state, which must demonstrate “that the state 9 procedural rule has been regularly and consistently applied in habeas actions.” Id. 10 To overcome a claim of procedural default, petitioner must establish either 11 United States District Court Northern District of California 2 (1) cause for the default, and prejudice, or (2) that failure to consider the defaulted claims 12 will result in a “fundamental miscarriage of justice.” Harris v. Reed, 489 U.S. 255, 262 13 (1989). To show cause for a procedural default, the petitioner must “show that some 14 objective factor external to the defense impeded” his efforts to comply with the state 15 procedural rule. Murray v. Carrier, 477 U.S. 478, 488 (1986). For cause to exist, the 16 external impediment must have prevented the petitioner from raising the claim. See 17 McClesky v. Zant, 499 U.S. 467, 497 (1991). To show prejudice, a petitioner bears “the 18 burden of showing not merely that the errors [complained of] constituted a possibility of 19 prejudice, but that they worked to his actual and substantial disadvantage, infecting his 20 entire [proceeding] with errors of constitutional dimension.” White v. Lewis, 874 F.2d 599, 21 603 (9th Cir. 1989) (citing United States v. Frady, 456 U.S. 152, 170 (1982)). If the 22 petitioner fails to show cause, the court need not consider whether the petitioner suffered 23 actual prejudice. Engle v. Isaac, 456 U.S. 107, 134 n.43 (1982). 24 To show a “fundamental miscarriage of justice,” a petitioner must show that the 25 constitutional error of which he complains “has probably resulted in the conviction of one 26 who is actually innocent.” Bousley v. United States, 523 U.S. 614, 623 (1998) (citing 27 Murray, 477 U.S. at 496). “Actual innocence” is established when, in light of all the ORDER OF DISMISSAL CASE NO. 16-cv-02773-RS 28 3 1 evidence, “it is more likely than not that no reasonable juror would have convicted [the 2 petitioner].” Id. at 623 (quoting Schlup v. Delo, 513 U.S. 298, 327-28 (1995)). “‘[A]ctual 3 innocence’ means factual innocence, not mere legal insufficiency.” Id. at 623. A 4 petitioner can make a showing of “actual innocence” by presenting the court with new 5 evidence which raises a sufficient doubt as “to undermine confidence in the result of the 6 trial.” Schlup, 513 U.S. at 324. 7 A. Analysis 8 Respondent has adequately pleaded grounds for procedural default. The state 9 supreme court cited three cases in its denial of the state habeas petition, two of which (Lindley and Dixon) are significant here, as respondent makes clear in his motion to 11 United States District Court Northern District of California 10 dismiss. Lindley stands for the proposition that the state supreme court will not consider 12 on habeas review the merits of sufficiency of the evidence claims. Lindley, 29 Cal. 2d at 13 723. Such claims must be raised on direct review. Id. The Lindley bar has been upheld by 14 the Ninth Circuit as both an adequate and independent state ground for the denial of habeas 15 corpus relief. Carter v. Giurbino, 385 F.3d 1194, 1197-1198 (9th Cir. 2004). 16 Dixon bars from state habeas review those claims that could have been raised on 17 direct appeal. Dixon, 41 Cal. 2d at 759. The Supreme Court has held that California’s rule 18 barring claims that could have been raised on direct appeal, as announced in Dixon, is an 19 adequate and independent state ground for the denial of habeas relief. Johnson v. Lee, 136 20 S. Ct. 1802, 1806 (2016). Because the state has adequately pleaded grounds for procedural 21 default, it is now petitioner’s turn to place this defense “at issue” by asserting specific 22 factual allegations that demonstrate the inadequacy of the state procedure. 23 Petitioner offers three objections to respondent’s procedural default defense: (1) the 24 state court’s use of Lindley and Dixon is inapposite because his Wende appellate brief put 25 “all matters at issue,” including his evidence insufficiency claim (Response to Prior MTD, 26 Dkt. No. 10 at 1); (2) the “California [c]ourts do not consistently use procedural bar[s] 27 against habeas corpus,” (Opp. to MTD, Dkt. No. 20 at 3); and (3) a change in state law ORDER OF DISMISSAL CASE NO. 16-cv-02773-RS 28 4 1 provides an exception to the Dixon bar (id. at 3). The first argument cannot succeed. Whether the Lindley and Dixon bars were 2 3 correctly applied by the state court is a question of state, not federal, law. A state court’s 4 interpretation of state law binds this federal habeas court, Bradshaw v. Richey, 546 U.S. 5 74, 76 (2005), even if state law were erroneously interpreted or applied, Swarthout v. 6 Cooke, 562 U.S. 216, 219 (2011). Also, a Wende brief does not put “all matters at issue.” 7 Rather, it does the opposite. It declares that there are no matters at issue. Petitioner’s contention that California courts are not consistent fares no better. His 8 9 10 argument is conclusory and is not sufficient to “demonstrat[e] subsequent inconsistent application” of Lindley and Dixon.3 Petitioner’s third objection is that a change in state law creates an exception to United States District Court Northern District of California 11 12 Dixon. He cites the state supreme court’s 2015 decision in People v. Banks, 61 Cal. 4th 13 788 (Cal. 2015) as support for this.4 This assertion is not persuasive. The state supreme court imposed the Dixon bar 14 15 against petitioner in 2016, that is after Banks, which was issued in 2015. Even if Banks 16 provides an exception to Dixon, the state supreme court apparently decided that petitioner 17 was not entitled to that exception. 18 Respondent, then, has successfully shown that petitioner’s claims are procedurally 19 defaulted. Petitioner can overcome default now only by showing cause and prejudice, or 20 that a failure to review his claims on the merits would be a fundamental miscarriage of 21 22 23 24 25 26 27 3 Petitioner does cite a Ninth Circuit case from 2002 and a Supreme Court case from 1995 to support his contention. (Opp., Dkt. No. 20 at 3.) Such citations are unavailing, however. Because these opinions were issued before the cases that upheld the Lindley and Dixon bars (Carter, 2004; Lee, 2016), they cannot show subsequent inconsistent application. Petitioner also cites a Central District case from 2005. This citation is also unavailing. Because it is a district court opinion, it is not binding on this Court. Also, the citation petitioner provides does not match the name of the case he gives. 4 In Banks, the state supreme court discussed under what circumstances an accomplice can qualify as a major participant in criminal activity. ORDER OF DISMISSAL CASE NO. 16-cv-02773-RS 28 5 1 justice. To this end, petitioner claims that appellate counsel’s ineffectiveness in failing to 2 raise an insufficiency of evidence claim constitutes cause to excuse procedural default. 3 (Opp. to MTD, Dkt. No. 20 at 1.) 4 Because there was sufficient evidence to support his conviction, petitioner cannot 5 show that appellate counsel was ineffective in failing to raise an insufficiency claim. 6 Petitioner was convicted of the first degree burglary of his mother’s house. (First MTD, 7 Dkt. No. 9-1 (State Appellate Opinion) at 4.) A person commits first degree burglary in 8 California when he enters an inhabited dwelling with the intent to commit grand or petit 9 larceny, or any felony. Cal. Penal Code §§ 459, 460. At trial, petitioner’s mother’s neighbor testified that on the day of the burglary she saw petitioner and another person 11 United States District Court Northern District of California 10 moving boxes from the mother’s house to a parked car. (First MTD, Dkt. No. 9-1 at 4.) 12 Petitioner’s mother testified that she came home to find her window broken, and her 13 television and vacuum cleaner missing. (Id.) These items were later found in petitioner’s 14 residence. (Id.) These facts clearly meet the requirements of the statute. In the face of 15 such strong evidence, appellate counsel cannot have been deficient in failing to raise a 16 claim of insufficient evidence, nor can such an alleged failure have resulted in prejudice. 17 Smith v. Robbins, 528 U.S. 259, 285 (2000) (claims of ineffective assistance of appellate 18 counsel are reviewed according to the standard set out in Strickland v. Washington, 466 19 U.S. 668 (1984)). Because petitioner has not shown cause, the Court need not discuss 20 whether he has shown prejudice. Furthermore, the above-cited evidence shows that 21 petitioner’s insufficiency of evidence claim lacks merits. 22 Petitioner also has not shown that a failure to review the merits of his claims would 23 result in a fundamental miscarriage of justice. As noted above, there was strong evidence 24 of his guilt. He has thus failed to show that the constitutional error of which he complains 25 “has probably resulted in the conviction of one who is actually innocent.” Bousley, 523 26 U.S. at 623 (citing Murray, 477 U.S. at 496). His claim is procedurally defaulted and 27 meritless. ORDER OF DISMISSAL CASE NO. 16-cv-02773-RS 28 6 CONCLUSION 1 2 Respondent’s motion to dismiss the petition (Docket No. 19) is GRANTED. The 3 claim is procedurally defaulted. Consequently, the petition is DISMISSED. The claim, 4 even if it were to be considered on the merits, would fail. The Clerk shall terminate 5 Docket No. 19, enter judgment in favor of respondent, and close the file. 6 7 IT IS SO ORDERED. 10 Dated: January ___, 2018 _________________________ RICHARD SEEBORG United States District Judge 8 9 10 United States District Court Northern District of California 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 ORDER OF DISMISSAL CASE NO. 16-cv-02773-RS 28 7

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