Tsetse v. Neuschmid

Filing 59

ORDER by Judge William Alsup granting in part and denying in part 52 Motion to Dismiss; granting 57 Motion for Leave to File Excess Pages; To Show Cause. (amd2S, COURT STAFF) (Filed on 2/5/2021)Any non-CM/ECF Participants have been served by First Class Mail to the addresses of record listed on the Notice of Electronic Filing (NEF)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE NORTHERN DISTRICT OF CALIFORNIA
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No. C 18-1876 WHA (PR)

PRINCE F. TSETSE,
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ORDER GRANTING IN PART AND
DENYING IN PART MOTION TO
DISMISS; GRANTING LEAVE TO
FILE EXCESS PAGES; TO SHOW
CAUSE

Petitioner,
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v.
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ROBERT NEUSCHMID,
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(Dkt. Nos. 52, 57)

For the Northern District of California

United States District Court

Respondent.
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Petitioner, a California prisoner proceeding pro se, filed this habeas petition under 28
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U.S.C. § 2254 challenging his conviction in state court. The original petition claimed
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ineffective assistance of counsel, and subsequently petitioner received a stay to exhaust two
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additional claims of prosecutorial misconduct and actual innocence. He exhausted those two
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claims in a failed habeas petition to the California Supreme Court, and then he renewed his
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Second Amended Petition (“SAP”) here, which included his three exhausted claims.
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Respondent was ordered to filing an answer or a motion to dismiss. He chose to file a motion to
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dismiss, and petitioner filed an opposition. Respondent was ordered to file a reply brief twice,
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but he did not do so (ECF Nos. 48 (“[R]espondent shall file a . . . reply”), 56 (“[R]espondent
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shall file a reply . . . ”) (emphasis added)).
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Respondent moves to dismiss the two newly-added claims — prosecutorial misconduct
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and actual innocence — as procedurally defaulted. A federal court will not review questions of
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federal law decided by a state court if the decision also 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.
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Thompson, 501 U.S. 722, 729-30 (1991). Petitioner exhausted these claims in a habeas petition
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to the California Supreme Court, which denied the petition summarily with citations to In re
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Dixon, 41 Cal. 2d 756, 264 P.2d 513 (Cal. 1953) (to bring a claim in a state habeas corpus

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action a petitioner must first, if possible, have pursued the claims on direct appeal), and In re

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Lindley, 29 Cal. 2d 709 (Cal. 1947) (sufficiency of the evidence claims cannot be raised in a

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state habeas petition). The Dixon and Lindley rules are each adequate and independent state

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procedural rules barring federal habeas review. See Johnson v. Lee, 136 S. Ct. 1802, 1803-04

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(2016) (Dixon); Carter v. Giurbino, 385 F.3d 1194, 1198 (9th Cir. 2004) (Lindley).

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The California Supreme Court’s citations to Dixon and Lindley would ordinarily bar

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federal habeas review of petitioner’s prosecutorial misconduct and actual innocence claims, but

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petitioner argues — and respondent does not dispute — that two exceptions to the federal

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procedural default rule apply. The first exception applies when the petitioner demonstrates
cause for the default and actual prejudice as a result of the alleged violation of federal law, and

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For the Northern District of California

United States District Court

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the second exception applies if failure to consider the claims will result in a fundamental

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miscarriage of justice. Coleman, 501 U.S. at 750. Petitioner argues that there was cause for his

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default, namely appellate counsel refused his request to raise his claims of prosecutorial

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misconduct and actual innocence on direct appeal. See McClesky v. Zant, 499 U.S. 467, 493

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(1991) (ineffective assistance of counsel may constitute cause excusing procedural default). He

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also argues that prejudice arose from this default insofar as the claims would have succeeded on

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direct appeal. He further claims that he was actually innocent, which, if true, establishes both

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actual prejudice and a miscarriage of justice. See Schlup v. Delo, 513 U.S. 298, 327 (1995)

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(setting forth actual innocence exception to procedural default). Respondent has not disputed

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or addressed these arguments either in a reply brief or in the motion to dismiss. Because

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respondent does not dispute that these exceptions apply, petitioner’s claims are not dismissed on

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procedural default grounds.

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Respondent does correctly argue, however, that actual innocence is not an independent

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grounds for federal habeas relief. The United States Supreme Court has not recognized a free-

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standing claim of actual innocence as grounds for federal habeas relief for a non-capital

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petitioner. See Herrera v. Collins, 506 U.S. 390, 400 (1993); Carriger v. Stewart, 132 F.3d

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463, 476 (9th Cir. 1997) (en banc). While actual innocence warrants exemption from

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procedural default, petitioner cannot bring the claim as an independent claim for habeas relief.

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It is hereby ordered as follows:

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1. The motion to dismiss is GRANTED IN PART AND DENIED IN PART. Petitioner’s third

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claim based upon actual innocence is DISMISSED. Petitioner’s first two claims in the SAP

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remain.

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2. Petitioner’s motion for leave to file an oversized brief is GRANTED.

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3. Respondent shall file with the court and serve on petitioner, within sixty-three (63)

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days of the issuance of this order, an answer conforming in all respects to Rule 5 of the Rules

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Governing Section 2254 Cases, showing cause why a writ of habeas corpus should not be
granted based on the two remaining claims in the SAP. In doing so, respondent shall file a new

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For the Northern District of California

United States District Court

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answer with a supporting memorandum that either replaces or supplements the memorandum

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supporting the original answer. Respondent need not file new copies of previously submitted

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exhibits.

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If petitioner wishes to respond to the answer, he shall do so by filing a traverse with the

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court and serving it on respondent within twenty-eight days of the date the answer is filed.

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Petitioner shall indicate whether the traverse supplements or replaces the previously-filed

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traverse.

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IT IS SO ORDERED.
Dated: February

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, 2021.

WILLIAM ALSUP
UNITED STATES DISTRICT JUDGE

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