Flowers v. Foulk

Filing 94

ORDER ON MOTIONS FOR RECONSIDERATION AND MOTION TO DISMISS by Judge Claudia Wilken granting 78 Administrative motion to file under seal; granting 83 Request to consider documents timely; granting 86 Motion to dismiss; granting 92 Request for copies of documents; denying 80 Motion for leave for discovery; denying 87 89 91 Motions to strike; denying 79 85 88 Motions to reconsider ; denying 79 90 Requests for discovery and evidentiary hearings; denying 93 Motion. (Certificate of Service Attached) (napS, COURT STAFF) (Filed on 9/6/2016)

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1 IN THE UNITED STATES DISTRICT COURT 2 FOR THE NORTHERN DISTRICT OF CALIFORNIA 3 4 No. C 14-0589 CW JOSEPH FLOWERS, 5 ORDER ON MOTIONS FOR RECONSIDERATION AND MOTION TO DISMISS Petitioner, 6 v. 7 8 F. FOULK, Warden, Respondent. 9 10 ________________________________/ United States District Court Northern District of California 11 12 13 14 15 16 17 Petitioner Joseph Flowers filed a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254 following his state convictions of robbery and kidnapping.1 Respondent's motion to reconsider its denial of Respondent's motion to dismiss claim 5(b) and his motion to dismiss claims 1(b), 1(c) and 3(b) as procedurally defaulted, as well as several motions filed by Petitioner. 18 BACKGROUND 19 20 21 22 23 Before the Court are The underlying facts are restated in this Court's order granting in part Respondent's motion to dismiss. Following that order, the claims that remain are claims 1(b), 1(c),2 2(a), 2(c), 3(a), 3(b), 5(a), 5(b) and 6. MTD Order at 22. In lieu of filing an answer following the Court's order on his motion to 24 25 26 27 28 1 The documents at Docket Numbers 25 and 27 together constitute the operative petition. 2 Only a portion of claim 1(c) remains. The Court dismissed the part that was predicated on Petitioner's appellate counsel's alleged ineffective assistance for failing to raise trial counsel's ineffective assistance in failing to investigate a robbery victim's background. MTD Order at 6 n.4. 1 dismiss, Respondent filed a motion to dismiss claims 1(b), 1(c) 2 and 3(b) as procedurally defaulted. 3 granted Respondent's motion for leave to file a motion to 4 reconsider the denial of the motion to dismiss claim 5(b). 5 Thereafter, Respondent filed supplemental briefing. In addition, the Court PRELIMINARY MOTIONS 6 Petitioner moves to seal his declaration describing 7 8 discussions with his appellate counsel. 9 motion is GRANTED. Docket No. 78. This If Petitioner is able to pursue claims of ineffective assistance of both trial and appellate counsel, these 11 United States District Court Northern District of California 10 documents may have to be unsealed or stricken. Petitioner requests that Docket Numbers 80 and 81 be 12 13 considered timely. 14 Docket No. 83. The Court GRANTS Petitioner's request. Petitioner moves "for of leave for discovery." 15 Docket No. 16 80. 17 extent that the judge in the exercise of discretion and for good 18 cause shown grants leave to do so. 19 Governing Section 2254 Cases. 20 petitioner demonstrates, through specific allegations, that there 21 is reason to believe that he may be entitled to relief. 22 Gramley, 520 U.S. 899, 908-09 (1997) (quoting Harris v. Nelson, 23 394 U.S. 286, 300 (1969)). 24 his burden, this motion is DENIED. 25 Habeas corpus petitioners may conduct discovery to the Rule 6(a) of the Rules Good cause is shown where a Bracy v. Because Petitioner fails to satisfy Petitioner files three requests that the Court make public 26 documents private or strike them. 27 Those include documents subject to attorney-client privilege and 28 documents that list his social security number. 2 See Docket Nos. 87, 89, 91. Petitioner 1 explains that these documents are publicly available in 2 California state courts as well as in this Court. 3 clear which such documents, if any, are publicly available in the 4 record of this case. 5 courts to seal their documents. 6 requests, without prejudice to Petitioner filing a new request 7 that lists the offending documents in this case by Docket Number 8 and page.3 The Court cannot order California state The Court DENIES Petitioner's Docket Number 91 specifically contains a request to "strike" 9 10 Exhibit Z(7). 11 United States District Court Northern District of California It is not See Docket No. 25-3. That document has already been filed in the public record. 12 that it does not contain confidential material. 13 Order Denying Motion to Seal at 3. 14 Petitioner's request to strike Exhibit Z(7).4 The Court has already ruled Docket No. 32, Therefore, the Court DENIES Petitioner requests paper copies of particular documents, 15 16 namely those at Docket Numbers 27, 65, 67, 70 and 73. Docket No. 17 92. 18 Clerk's office to mail Petitioner hard copies of those documents 19 along with this order. 20 // 21 // The Court GRANTS Petitioner's request and instructs the LEGAL STANDARD 22 23 24 25 26 27 28 3 Petitioner also argues that, by failing to point out that these privileged documents were public, Respondent failed to safeguard Petitioner's constitutional rights. This argument does not fall within the scope of any alleged constitutional violations within his habeas petition. 4 Petitioner also requests that Respondent's Exhibit 10 be stricken. This document is the Supreme Court copy of Petitioner's declaration labeled "Amendments of the Habeas Corpus Petition." Docket No. 50-5. The Court denies this request. 3 1 "A federal habeas court will not review a claim rejected by 2 a state court if 'the decision of [the state] court rests on a 3 state law ground that is independent of the federal question and 4 adequate to support the judgment.'" 5 307, 315 (2011) (quoting Beard v. Kindler, 558 U.S. 53, 55 6 (2009)). 7 adjudication of the claim on the merits." 8 9 Walker v. Martin, 562 U.S. The state law ground may be "a procedural barrier to Id. The procedural default analysis proceeds in two steps. First, the federal court must consider whether the state procedural rule the state court invoked to bar the claim is both 11 United States District Court Northern District of California 10 "independent" and "adequate" to preclude federal review. 12 Bennett v. Mueller, 322 F.3d 573, 580 (9th Cir. 2003). 13 state has adequately plead the existence of an independent and 14 adequate state procedural ground as a defense, the burden to 15 place that defense at issue shifts to the petitioner, who "may 16 satisfy this burden by asserting specific factual allegations 17 that demonstrate the inadequacy of the state procedure, including 18 citation to authority demonstrating inconsistent application of 19 the rule." 20 proof thereafter will be measured by the specific claims of 21 inadequacy put forth by the petitioner." 22 omitted). Id. at 586. See Once the "The scope of the state's burden of Id. at 584-85 (citation 23 If the procedural rule invoked by the state court is both 24 adequate and independent, then the next step of the evaluation 25 requires the federal court to consider whether the petitioner has 26 established either "cause" for the default and "actual prejudice" 27 as a result of the alleged violation of federal law, or whether 28 failure to consider the claim will result in a fundamental 4 1 miscarriage of justice. 2 (1991). 3 habeas review of that claim is barred. 4 F.3d 802, 804-05 (9th Cir. 1993). Coleman v. Thompson, 501 U.S. 722, 750 If a petitioner cannot meet this burden, then federal Noltie v. Peterson, 9 DISCUSSION 5 I. 6 Petitioner's Motions for Reconsideration Petitioner moves for "modification of order granting in part 7 8 of dismissal" regarding claims 1 and 4. Docket No. 79. 9 Petitioner also requests "[Amending Petition] modification of Reconsidering of [Grounds 1 & 4]." 11 United States District Court Northern District of California 10 Docket No. 88. The Court construes these filings as motions for reconsideration. 12 L. R. 7-9. 13 not dismissed in the previous order. 14 these filings as motions to reconsider its dismissal of claim 4 15 as procedurally defaulted. See Civ. The portions of claim 1 that were not withdrawn5 were Thus, the Court evaluates To prevail on a motion for reconsideration, Petitioner "must 16 17 specifically show reasonable diligence in bringing the motion" 18 and one of the following circumstances: (1) that "at the time of 19 the motion for leave, a material difference in fact or law exists 20 from that which was presented to the Court before entry of the 21 interlocutory order for which reconsideration is sought" and 22 "that in the exercise of reasonable diligence the party applying 23 for reconsideration did not know such fact or law at the time of 24 the interlocutory order"; (2) new material facts or law emerged 25 after the order was issued; or (3) there was a "manifest failure 26 by the Court to consider material facts or dispositive legal 27 5 28 Petitioner's request to reinstate the portion of claim 1 that he withdrew is DENIED. 5 1 arguments which were presented to the Court before such 2 interlocutory order." 3 may not repeat any argument that was made in opposition to the 4 earlier order. Civ. L. R. 7-9(b). Further, Petitioner See Civ. L. R. 7-9(c). Petitioner does not satisfy this standard. 5 Many of his 6 arguments do not relate to any of these factors. Others were 7 already argued. 8 that he recently located new evidence and cites Exhibits A, R and 9 H. Aside from these arguments, Petitioner argues However, these are exhibits that were attached to his original petition. 11 United States District Court Northern District of California 10 See Docket No. 1. This evidence already existed when the original motion to dismiss was filed. 12 Petitioner's motions to reconsider the dismissal of claim 4 are 13 DENIED.6 The Court construes Petitioner's motion at Docket Number 85 14 15 as another motion for reconsideration of its dismissal of claim 16 4. 17 "stated in part every person unlawfully imprisoned or restained 18 [sic] of his liberty under any pretense of may prosecute a 19 petition is abled [sic] to inquire of his imprisonment or 20 restraints." 21 in the law, dated February 27, 2015, "raises the defense" that 22 state officials had knowledge that attorney-client visitations 23 were being recorded. 24 evidence of eavesdropping was not discovered until after the 25 trial. Petitioner argues that there was a change in the law that Docket No. 85 at 1. Id. at 2. He explains that this change Petitioner also argues that Importantly, the change in law or fact must have occurred 26 27 28 6 Petitioner's requests for discovery and evidentiary hearings relating to these motions to reconsider the dismissal of claim 4 are also DENIED (Docket Nos. 90, 79). 6 1 between the Court's consideration of the order at issue and the 2 motion for reconsideration. 3 arguments relate to changes that predate the Court's order 4 dismissing claim 4. 5 DENIED. 6 II. See Civ. L. R. 7-9(b). Petitioner's For this reason, Petitioner's motion is Respondent's Motion to Reconsider claim 5(b) 7 Claim 5(b) states that there was insufficient evidence of 8 the identity of the kidnap victim to support the conviction of 9 kidnapping for robbery. Because the California Supreme Court's citation to In re Clark, 5 Cal. 4th 750, 797-98 (1993) relates to 11 United States District Court Northern District of California 10 two possible procedural bars, untimeliness and successiveness, 12 and because Respondent briefed untimeliness alone, the Court 13 concluded that Respondent did not meet his burden to plead the 14 existence of an independent and adequate procedural bar. 15 Respondent assumed that untimeliness subsumes successiveness and, 16 therefore, did not brief successiveness or the relationship 17 between untimeliness and successiveness. 18 Respondent now argues that the California Supreme Court's 19 citation to In re Clark could be construed as invoking both an 20 untimeliness bar and a successive petition bar. 21 agrees. 22 independent state ground for procedural bar purposes. 23 Jacquez, 788 F.3d 1124, 1129 (9th Cir. 2015), rev'd on other 24 grounds by Johnson v. Lee, 136 S. Ct. 1802 (2016). 25 bar against successive petitions is also adequate and 26 independent. 27 at *6-*7 (N.D. Cal.) (concluding that California's successiveness 28 bar is adequate and independent as of May 21, 2008); Arroyo v. The Court California's untimeliness rule is an adequate and Lee v. California's See, e.g., Rutledge v. Katavich, 2012 WL 2054975, 7 1 Curry, 2009 WL 723877, at *3-*6 (N.D. Cal.) (concluding that the 2 successive petition bar is adequate and independent as of March 3 6, 2006); Ingram v. Cate, 2014 WL 3672921, at *16 (C.D. Cal.), 4 report and recommendation adopted, 2014 WL 3672924 (citing Field 5 v. Calderon, 125 F.3d 757, 763-64 (9th Cir. 1997) and Siripongs 6 v. Calderon, 35 F.3d 1308, 1318 (9th Cir. 1994)). Petitioner argues that the state procedural bar is 7 8 inadequate. 9 allegations demonstrating the inadequacy of the untimeliness or 10 successiveness bars. See Bennett, 322 F.3d at 580. Because the bars are both adequate and independent, 11 United States District Court Northern District of California However, he failed to assert any specific factual 12 Petitioner may only avoid default if he establishes either cause 13 and prejudice or that failure to consider his claim will result 14 in a fundamental miscarriage of justice. 15 750. 16 Coleman, 501 U.S. at Petitioner argues that the ineffective assistance of his 17 trial and appellate counsel satisfy the cause and prejudice test. 18 However, as explained below, Petitioner cannot circumvent the 19 procedural bar that applies to those claims. 20 Petitioner also argues that the CDC interfered with property 21 such that bringing this argument was impracticable. 22 explained below, any evidence of Wendy Zhang's true identity 23 would not have been relevant to Petitioner's conviction. 24 However, as Finally, Petitioner's miscarriage of justice claim lacks 25 merit. 26 proven for a kidnapping conviction. 27 28 As explained below, Wendy Zhang's identity need not be For all these reasons, the Court dismisses claim 5(b). III. Respondent's Motion to Dismiss Claims 1(b), 1(c) and 3(b) 8 Respondent moves to dismiss claims 1(b), the remainder of 1 2 1(c) and 3(b) as procedurally defaulted based on the same 3 citation to Clark discussed above.7 4 counsel was ineffective for failing to move to dismiss the 5 kidnapping count based on a discrepancy between the victim's name 6 as listed on the information and the victim's own recitation of 7 her name at trial. 8 ineffective for failing to raise claim 1(b) on appeal. 9 3(b) alleges that the prosecutor presented false evidence Claim 1(b) alleges that trial Claim 1(c) alleges that appellate counsel was Claim regarding the identity of the kidnap victim. 11 United States District Court Northern District of California 10 None of these claims amounts to cause and prejudice or miscarriage of justice. Constitutionally ineffective assistance of counsel amounts 12 13 to cause for the cause and prejudice test. Walker v. Martel, 709 14 F.3d 925, 938 (9th Cir. 2013). 15 counsel to constitute cause, the ineffective assistance claim 16 must have been presented as an independent claim to the state 17 courts. 18 ineffective assistance of counsel claim has itself been 19 procedurally defaulted, it cannot excuse the default of another 20 habeas claim unless the ineffective assistance claim itself can 21 satisfy the cause and prejudice standard. 22 Carpenter, 529 U.S. 446, 453 (2000).8 For ineffective assistance of Murray v. Carrier, 477 U.S. 478, 489 (1986). Where that See Edwards v. Here, both ineffective 23 7 24 25 26 27 28 The Court construes Petitioner's motion to dismiss Respondent's motion as a response and DENIES the motion (Docket No. 93). See O'Bremski v. Maass, 915 F.2d 418, 420 (9th Cir. 1990) (explaining that, under Rule 4 of the Rules Governing Section 2254, district courts may summarily dismiss the petition on the merits when no claim for relief is stated). 8 The Ninth Circuit has concluded that, where a claim of ineffective assistance of trial counsel was procedurally defaulted, trial counsel's performance could not constitute cause. Cockett v. Ray, 333 F.3d 938, 943 (9th Cir. 2003). In 9 1 assistance of counsel claims, claims 1(b) and 1(c), were 2 procedurally defaulted. Cause to excuse procedural default on an ineffective 4 assistance of counsel claims exists where 1) the claim of 5 ineffective assistance of trial counsel was "substantial," 6 2) there was no counsel during the state collateral review 7 proceeding, 3) the state collateral review proceeding was the 8 initial review proceeding with respect to the ineffective 9 assistance of trial counsel claim and 4) claims of ineffective 10 assistance of trial counsel must be raised in an initial-review 11 United States District Court Northern District of California 3 collateral proceeding. 12 (2013); Martinez v. Ryan, 132 S. Ct. 1309, 1320 (2012). 13 the ineffective assistance of counsel claim is not substantial. 14 Trevino v. Thaler, 133 S. Ct. 1911, 1918 Here, The standard for substantiality is the same as the standard 15 for issuing a certificate of appealability. 16 F.3d 1237, 1245 (9th Cir. 2013) (en banc). 17 substantial claim, "a petitioner must show that reasonable 18 jurists could debate" the issue. 19 Cockrell, 537 U.S. 322, 336 (2003)). 20 Detrich v. Ryan, 740 To raise a Id. (quoting Miller-El v. The Sixth Amendment’s right to counsel guarantees not only 21 assistance, but effective assistance, of counsel. Strickland v. 22 Washington, 466 U.S. 668, 686 (1984). 23 any claim of ineffectiveness is whether counsel’s conduct so 24 undermined the proper functioning of the adversarial process that The benchmark for judging 25 26 27 28 light of the Supreme Court's statement in Edwards, the Court recognizes that a procedurally-defaulted ineffective assistance claim could excuse the procedural default of another claim if the ineffective assistance claim's procedural default could itself be excused. See Castaneda v. Cash, 2013 WL 6155605, at *15 (N.D. Cal.). 10 1 the trial cannot be relied upon as having produced a just result. 2 Id. 3 assistance of counsel claim, a petitioner must establish two 4 things. 5 was deficient and fell below an “objective standard of 6 reasonableness” under prevailing professional norms. 7 88. 8 counsel’s deficient performance, i.e., that “there is a 9 reasonable probability that, but for counsel’s unprofessional In order to prevail on a Sixth Amendment ineffective First, he must demonstrate that counsel’s performance Id. at 687- Second, he must establish that he was prejudiced by errors, the result of the proceeding would have been different.” 11 United States District Court Northern District of California 10 Id. at 694. 12 to undermine confidence in the outcome. 13 inquiry under Strickland is not what defense counsel could have 14 done, but rather whether counsel's choices were reasonable. 15 Babbitt v. Calderon, 151 F.3d 1170, 1173 (9th Cir. 1998). 16 A reasonable probability is a probability sufficient Id. The relevant See A “doubly deferential” standard of judicial review is 17 appropriate in analyzing ineffective assistance of counsel claims 18 under § 2254. 19 (2011). 20 reasonable. 21 argument that counsel satisfied Strickland's deferential 22 standard.” 23 See Cullen v. Pinholster, 563 U.S. 170, 202 The “question is not whether counsel's actions were The question is whether there is any reasonable Harrington v. Richter, 562 U.S. 86, 105 (2011). Here, Petitioner alleges that trial counsel was ineffective 24 for not moving to dismiss the kidnapping count where a victim's 25 name as stated on the information differed from the victim's name 26 that she stated at trial. 27 Penal Code section 207. 28 model jury instructions require the jury to agree on the victim's Kidnapping is defined in California Neither this section nor California's 11 1 real name. 2 was moved or compelled to move. 3 reasonable jurists could debate that there exists any reasonable 4 argument that trial counsel was ineffective for not moving to 5 dismiss based on this discrepancy. 6 See CALJIC 9.50. Both require only that some person Thus, it cannot be said that Because there is no substantial claim of ineffective 7 assistance of trial counsel, Petitioner does not satisfy the 8 Martinez/Trevino exception that would excuse procedural default 9 on claims 1(b) and (c). None of Petitioner's cause and prejudice or miscarriage of justice arguments, including ineffective 11 United States District Court Northern District of California 10 assistance of counsel, defeats the procedural bar for claim 3(b). 12 The Court GRANTS Respondent's motion to dismiss claims 1(b), 13 1(c) and 3(b) (Docket No. 86). 14 CONCLUSION 15 1. Petitioner's motion to seal (Docket Number 78) is GRANTED. 16 2. Petitioner's request that Docket Numbers 80 and 81 be 17 18 19 20 considered timely (Docket Number 83) is GRANTED. 3. Petitioner's motion for leave for discovery (Docket Number 80) is DENIED. 4. Petitioner's motions to strike (Docket Numbers 87, 89 and 21 91) are DENIED, without prejudice to Petitioner bringing a 22 similar motion if he can identify any offending documents in 23 this Court's file by Docket Number and page. 24 5. Petitioner's request for copies of the documents at Docket 25 Numbers 27, 65, 67, 70 and 73 is GRANTED (Docket No. 92). 26 The Court directs the Clerk's office to mail Petitioner hard 27 copies of those documents along with this order. 28 12 1 6. Petitioner's motions to reconsider the dismissal of claim 4 2 (Docket Numbers 79, 85 and 88) are DENIED. His requests for 3 discovery and evidentiary hearings related to these motions 4 are also DENIED (Docket Nos. 79, 90). 5 7. Petitioner's motion at Docket Number 93 is DENIED. 6 8. The Court dismisses claim 5(b). The Court also GRANTS 7 Respondent's motion to dismiss claims 1(b), 1(c) and 3(b) 8 (Docket No. 86). 9 2(c), 3(a), 5(a) and 6. 10 The remaining claims are claims 2(a), 9. No later than sixty days from the date of this Order, United States District Court Northern District of California 11 Respondent shall file with this Court and serve upon 12 Petitioner an Answer conforming in all respects to Rule 5 of 13 the Rules Governing Section 2254 Cases, showing cause why a 14 writ of habeas corpus should not be issued. 15 shall file with the Answer all portions of the state record 16 that have been transcribed previously and are relevant to 17 the determination of the issues presented by the petition. 18 If Petitioner wishes to respond to the Answer, he shall do 19 so by filing a Traverse with the Court and serving it on 20 Respondent no later than thirty days from his receipt of the 21 Answer. 22 submitted and ready for decision on the date the Traverse is 23 due. 24 of the dismissed claims on their merits. 25 IT IS SO ORDERED. Respondent If he does not do so, the petition will be deemed In an abundance of caution, Respondent may answer any 26 27 28 Dated: September 6, 2016 CLAUDIA WILKEN United States District Judge 13 1 2 UNITED STATES D DISTRICT COURT 3 NORTHERN DISTRICT OF CALI N T IFORNIA 4 5 JO OSEPH J. FLOWERS, , Case No. . 14-cv-00589-CW W Plaintif ff, 6 v. CERTIFIC CATE OF S SERVICE 7 8 F. FOULK, . Defendan nt. 9 10 United States District Court Northern District of California 11 12 13 14 15 16 17 18 I, th unders he signed, hereby ce h ertify th hat I am an emplo oyee in th Office of the Clerk, U.S. Dist he e U trict Cou urt, Nort thern Dis strict of Califor f rnia. That on Septe ember 6, 2016, I SERVED a true an correc nd ct copy(ies) of the attached, by plac a cing said copy(ie d es) in a postage pa aid envel lope addr ressed to the per o rson(s) h hereinaft ter liste ed, by depositing said en g nvelope in the U. S. Mail, or by p i , placing s said copy(ies) into an inter-of ffice del livery re eceptacle located in the e d Clerk's of ffice. 19 20 21 22 23 Joseph J. Flowers ID: F820 (with copies of docket nos. 27, 65, 67, 70 & 73) 065 B3191 Ca alifornia Mens Co a olony Sta ate Priso on P.O. Box 8101 Sa Luis Obispo, CA 93409an O C -8101 ated: Sep ptember 6, 2016 6 Da 24 25 26 27 Su usan Y. S Soong Cl lerk, U.S District Court S. By y:_______ ________ _________ ___ Ni ichole Pe eric, Deputy Clerk to th Honora he able CLA AUDIA WILKEN 28 14 4

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