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)

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