Melgoza v. Kirkland

Filing 79

ORDER re: 71 Petitioner's Motion to Alter or Amend Judgment. The court will permit further litigation in this action in order to provide Petitioner with an opportunity to show cause and prejudice to overcome the procedural default. Petiti oner may file an opening brief on this topic of no more than 10 pages on or before 10/24/2014. The State may file an opposition brief of no more than 10 pages on or before 11/14/2014. Petitioner may then file a reply brief of no more than 5 pages on or before 11/26/2014. A ruling on Petitioner's Motion to Alter or Amend Judgment will be held in abeyance during this additional briefing. Signed by Judge Edward J. Davila on 09/26/2014. (ejdlc4S, COURT STAFF) (Filed on 9/26/2014)

1
2
3
4

UNITED STATES DISTRICT COURT

5

NORTHERN DISTRICT OF CALIFORNIA

6

SAN JOSE DIVISION

7
8

ADRIAN MELGOZA,

Case No. 5:06-CV-04861-EJD

Plaintiff,
9
v.

ORDER RE: PETITIONER'S MOTION
TO ALTER OR AMEND JUDGMENT

10
11

RICHARD KIRKLAND,

[Re: Dkt. No. 71]

United States District Court
Northern District of California

Defendant.
12
13
Petitioner Adrian Melgoza (“Petitioner”), a California prisoner, has filed a Motion to Alter

14
15

or Amend Judgment under Federal Rule of Civil Procedure 59(e), challenging the procedural

16

default reasoning in this court’s October 12, 2012 order denying his Petition for Writ of Habeas

17

Corpus.

18

I.

19

BACKGROUND
The factual background of this case was extensively described in this court’s previous

20

order. See Order, Dkt. No. 69 at 1-6. In 2001, Petitioner was sentenced to a term of 52 years to

21

life in state prison on account of murder and certain other charges. Id. at 6. In 2003, the

22

California Court of Appeal affirmed the conviction, and in 2004, the California Supreme Court

23

denied the petition for review. Id.

24

In 2006, Petitioner filed a Petition for Writ of Habeas Corpus with this court. See Dkt. No.

25

1. In 2007, the State of California (“State”) filed a Motion to Dismiss the petition as untimely.

26

See Dkt. No. 4. The court granted the motion to dismiss with prejudice. See Dkt. No. 8. In 2008,

27

Petitioner appealed, and in 2010, the Ninth Circuit reversed the court’s dismissal and remanded

28

Case No. 5:06-CV-04861-EJD
ORDER RE: PETITIONER’S MOTION TO ALTER OR AMEND JUDGMENT

1

the case. See Dkt. Nos. 13, 35.

2

On October 15, 2012, this court issued an order denying the Petition for Writ of Habeas

3

Corpus and denying Certificate of Appealability. See Dkt. No. 69. This court found that upon

4

reviewing the record, Petitioner did not exhaust claims regarding constitutional challenges to the

5

admission of hearsay statements and the voice stress analyzer (“VSA”) results at his trial. See id.

6

at 14, 17-18 (citing State’s Answer (“Answer”), Dkt. No. 45-1 at 37, 46; Petitioner’s Traverse

7

(“Traverse”), Dkt. No. 66 at 6-8)). Since these claims were not exhausted and were barred by

8

state procedural rules, this court determined that these claims were procedurally defaulted. See id.

9

at 14, 18.
In November 2012, Petitioner filed the instant Motion to Alter or Amend Judgment under

10

United States District Court
Northern District of California

11

Rule 59(e). See Dkt. Nos. 71, 72. Respondent filed an opposition to the motion. See Dkt. No. 74.

12

This court filed an order requesting additional briefing on procedural default, and both parties

13

submitted briefs. See Dkt. Nos. 76-78. No hearing was held on this motion.

14

II.

LEGAL STANDARD
A motion under Federal Rule of Civil Procedure 59(e) may be granted on the following

15
16

grounds: “(1) if such motion is necessary to correct manifest errors of law or fact upon which the

17

judgment rests; (2) if such motion is necessary to present newly discovered or previously

18

unavailable evidence; (3) if such motion is necessary to prevent manifest injustice; or (4) if the

19

amendment is justified by an intervening change in controlling law.” Allstate Ins. Co. v. Herron,

20

634 F.3d 1101, 1111 (9th Cir. 2011). Rule 59(e) “offers an extraordinary remedy, to be used

21

sparingly in the interests of finality and conservation of judicial resources.” Kona Enters., Inc. v.

22

Estate of Bishop, 229 F.3d 877, 890 (9th Cir. 2000).

23

III.

24

DISCUSSION
Petitioner contends that this court’s judgment was based on a manifest mistake of law

25

because this court failed to reach the merits of the claims found to be procedurally defaulted. Dkt.

26

No. 72 at 1. His main argument is that the reasoning of procedural default was incorrect because

27
28

2
Case No. 5:06-CV-04861-EJD
ORDER RE: PETITIONER’S MOTION TO ALTER OR AMEND JUDGMENT

1

the State presented a failure to exhaust argument, not a procedural default argument. Id. at 2.

2

Thus, Petitioner argues that: (1) the procedural default argument was waived by the State; (2) this

3

court cannot sua sponte enforce procedural default; and (3) procedural default was not appropriate

4

in federal court. Dkt. No. 71 at 1; Dkt. No. 72 at 2. Each issue will be addressed in turn.

5

A.

6

As a threshold matter, this court finds it necessary to clarify the differences between the

7
8

Distinguishing Failure to Exhaust from Procedural Default

failure to exhaust doctrine and the procedural default rule, as articulated by the Ninth Circuit.
1.

Failure to Exhaust

The Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”) requires that

10

habeas petitioners exhaust their claims in state courts before raising them in federal court. 28

11
United States District Court
Northern District of California

9

U.S.C. § 2254(b)(1)(A); Cooper v. Neven, 641 F.3d 322, 326 (9th Cir. 2011). To exhaust a claim,

12

a petitioner must “fairly represent” his claim to the state’s highest court by clearly stating the

13

federal basis and nature of the claim. Id. at 326-27. After properly arguing his claim through “one

14

complete round of the State’s established appellate review process,” his claim is deemed to be

15

exhausted and can then be considered in federal habeas proceedings. Id. at 327 (quoting

16

O’Sullivan v. Boerckel, 526 U.S. 838, 845 (1999)).

17
18

2.

Procedural Default

A federal court may not hear a habeas claim if it runs afoul of the procedural bar doctrine.

19

Cooper, 641 F.3d at 327. A claim is procedurally defaulted when: (1) the state court denies the

20

claim on state procedural grounds, or (2) the claim has not been exhausted but state procedural

21

rules will now bar consideration of the claim. Id. State procedural rules must satisfy the

22

independent and adequate state ground doctrine—be independent of the merits of the federal claim

23

and be an adequate basis for the court’s decision. Id.; Franklin v. Johnson, 290 F.3d 1223, 1230

24

(9th Cir. 2002).

25
26

If a claim has been procedurally defaulted, a federal court may nonetheless consider it if
petitioner shows good cause for his failure to exhaust the claim and prejudice from the purported

27
28

3
Case No. 5:06-CV-04861-EJD
ORDER RE: PETITIONER’S MOTION TO ALTER OR AMEND JUDGMENT

1

constitutional violation, or shows that not hearing the claim would result in a “fundamental

2

miscarriage of justice.” Cooper, 641 F.3d at 327 (citing Coleman v. Thompson, 501 U.S. 722, 750

3

(1991)). To meet the “cause” prong, a petitioner can demonstrate an objective factor outside of his

4

control, such as ineffective assistance of counsel or a basis for the claim that was previously

5

unavailable. Id. To meet the “prejudice” prong, a petitioner can demonstrate that the errors

6

worked to his actual and substantial disadvantage, infecting his entire proceeding with errors of

7

constitutional dimension. Id. To show a “fundamental miscarriage of justice,” a petitioner can

8

establish that under the probative evidence he has a colorable claim of factual innocence. Id.
3.

9
10

Summary

In sum, the failure to exhaust doctrine applies when the state court was never presented

United States District Court
Northern District of California

11

with an opportunity to consider a petitioner’s claim and that opportunity may still be available to

12

the petitioner under state law. 28 U.S.C. § 2254(c); Franklin, 290 F.3d at 1230. If this doctrine

13

applies, then the district court can dismiss the petition without prejudice to give the prisoner an

14

opportunity to return to state court and litigate his unexhausted claim. Franklin, 290 F.3d at 1231.

15

By contrast, the procedural default rule applies when a state court was presented with the

16

federal claim, but either declined to reach the issue for procedural reasons or can no longer hear

17

the claim because it is procedurally barred. Id. at 1230-31. If the petitioner’s claim is

18

procedurally barred and he cannot show cause and prejudice for the default, then the district court

19

can dismiss his petition because he has no further recourse in state court. Id. at 1231.

20

B.

Waiver of Procedural Default Defense

21

Petitioner argues that the State waived the procedural default argument because it failed to

22

raise it earlier. Dkt. No. 72 at 2. Instead, the State raised a failure to exhaust argument. Id. The

23

State, however, argues that it was Petitioner himself who asserted that his claims were barred in

24

state court. Dkt. No. 74 at 3. As such, the State did not waive its procedural default defense

25

because Petitioner raised this issue for the first time in his Traverse, after which the State had no

26

further opportunities to respond. Id.

27
28

4
Case No. 5:06-CV-04861-EJD
ORDER RE: PETITIONER’S MOTION TO ALTER OR AMEND JUDGMENT

1

The Ninth Circuit has held that procedural default is an affirmative defense that should be

2

raised in the first responsive pleading, such as an answer to the petition. Morrison v. Mahoney,

3

399 F.3d 1042, 1046 (9th Cir. 2005). If the state fails to raise procedural default in federal court,

4

then the argument is waived. Francis v. Rison, 894 F.2d 353, 355 (9th Cir. 1990). See Johnico v.

5

Chrones, 187 Fed. Appx. 701, 702 (9th Cir. 2006) (“The government waived [the procedural

6

default] argument when it failed to assert it before the district court.”); Franklin v. Johnson, 290

7

F.3d 1223, 1229 (9th Cir. 2002) (“For petitions filed before AEDPA’s effective date, the well-

8

settled rule was that the state waived any procedural bar by failing to raise the issue in response to

9

the habeas petition.”) (collecting cases).

10

Here, the State filed its Answer to the habeas petition arguing that Petitioner’s claims

United States District Court
Northern District of California

11

should be dismissed for failure to exhaust. See Dkt. No. 45-1 at 37, 45-46. But, it did not raise a

12

procedural default argument. Accordingly, the State has waived this defense.

13

C.

Court Enforcing Procedural Default Issue Sua Sponte

14

Petitioner argues that the court should not have enforced procedural default sua sponte

15

when extraordinary circumstances to do so are absent. Dkt. No. 72 at 4. The State, however,

16

argues that this court has discretion to sua sponte raise procedural default in order to further

17

comity, federalism, and judicial efficiency. Dkt. No. 74 at 2.

18

Petitioner relies on a footnote by the Ninth Circuit stating: “Although we have discretion to

19

consider procedural default sua sponte, we do so only in extraordinary circumstances.” Dkt. No.

20

72 at 4; Ocampo v. Vail, 649 F.3d 1098, 1107 n.11 (9th Cir. 2011). However, in various

21

instances, the Ninth Circuit has encouraged district courts to sua sponte raise and enforce

22

procedural default in order to further interests of comity, federalism, and judicial efficiency. See

23

Reed v. Helling, 172 Fed. Appx. 205, 206 (9th Cir. 2006) (“A habeas court may raise procedural

24

default sua sponte if the petitioner failed to exhaust state remedies and the court to which the

25

petitioner would be required to present his claims in order to meet the exhaustion requirement

26

would now find the claims procedurally barred.”) (internal quotations and citations omitted); Vang

27
28

5
Case No. 5:06-CV-04861-EJD
ORDER RE: PETITIONER’S MOTION TO ALTER OR AMEND JUDGMENT

1

v. Nevada, 329 F.3d 1069, 1073 (9th Cir. 2003) (district court can raise procedural default when it

2

is obvious from the face of the petition and it furthers comity, federalism, and judicial efficiency);

3

Gould v. Hatcher, 125 Fed. Appx. 802, 808 (9th Cir. 2005) (“Although procedural default is

4

normally a defense that the State is obligated to raise and preserve if it is not to lose the right to

5

assert the defense thereafter, this court has held that it may raise procedural default sua sponte

6

where to do so serves the interests of justice, comity, federalism, and judicial efficiency.”)

7

(internal quotations and citations omitted); Haynie v. Washington, 12 Fed. Appx. 527, 529 (9th

8

Cir. 2001) (same). When a court does find procedural default, it must give the petitioner notice of

9

the procedural default and an opportunity to respond to the argument for dismissal. Id. See Babb
v. Bullock, 383 Fed. Appx. 625, 625 (9th Cir. 2010) (district court correctly raised procedural

11
United States District Court
Northern District of California

10

default sua sponte and followed the proper procedure of allowing petitioner to demonstrate cause

12

and prejudice or fundamental miscarriage of justice to excuse his procedural default).

13

Here, this court determines that it was necessary to raise procedural default sua sponte in

14

order to assess the propriety of Petitioner’s claims in federal court. This furthers the interests of

15

comity, federalism, and judicial efficiency as set forth by the Ninth Circuit.

16

D.

17

Having established that this court properly raised procedural default sua sponte, its

18
19
20

Appropriateness of Procedural Default for Petitioner’s Unexhausted Claims

appropriateness to this case will now be examined.
1.

Exhaustion of Petitioner’s Claims

After a jury found Petitioner guilty, he was sentenced to a term of 52 years to life in state

21

prison. Dkt. No. 69 at 6. Petitioner appealed to the California Court of Appeal where it evaluated

22

the following claims. First, Petitioner argued that the magistrate who issued the arrest warrant and

23

denied Petitioner’s applications for bail was neither neutral nor detached. People v. Melgoza,

24

H023236, 2003 WL 22708685, at *6 (Cal. Ct. App. Nov. 14, 2003). Second, Petitioner argued

25

that the admission of inadmissible hearsay evidence at Petitioner’s trial violated his Due Process

26

and Confrontation Clause rights. Id. at *15. This hearsay evidence consisted of: (i) Mario

27
28

6
Case No. 5:06-CV-04861-EJD
ORDER RE: PETITIONER’S MOTION TO ALTER OR AMEND JUDGMENT

1

Rodriguez’s statements; (ii) Juan Macedo’s statements; and (iii) Alejandro Ramirez’s and Juan

2

Macedo’s statements. Id. Third, Petitioner argued that the admission of hearsay statements by

3

third-party witness Oscar Macias, and the administration and results of the Voice Stress Analyzer

4

test (“VSA”) violated Petitioner’s rights under the Due Process Clause. Id. at *20. On November

5

14, 2003, the California Court of Appeal rejected these arguments and affirmed the conviction. Id.

6

at *25; Dkt. No. 69 at 6.

7

Petitioner then appealed to the California Supreme Court. In his petition for review, with

8

the exception of his claim challenging the admission of Rodriguez’s hearsay statements, he did not

9

raise the claims challenging the admission of all the other hearsay statements. See Answer, Dkt.
No. 45-1 at 37, 46; Traverse, Dkt. No. 66 at 6-8; Dkt. No. 56, Exh. I. Also, Petitioner did not raise

11
United States District Court
Northern District of California

10

the claim challenging the admission of the VSA results. See Dkt. No. 45-1 at 37, 46; Dkt. No. 66

12

at 6-8; Dkt. No. 56, Exh. I. On February 24, 2004, the California Supreme Court denied the

13

petition for review. Dkt. No. 69 at 6; Dkt. No. 56, Exh. I.

14

Given that Petitioner failed to raise some claims in its petition for review before the

15

California Supreme Court, these claims are not exhausted. This is an undisputed issue since

16

Petitioner does not argue otherwise.

17
18

2.

Procedural Default on Unexhausted Claims

As stated above, a claim is procedurally defaulted when: (1) the state court denies the

19

claim on state procedural grounds, or (2) the claim has not been exhausted but state procedural

20

rules will now bar consideration of the claim. Cooper, 641 F.3d at 327. State procedural rules

21

must be independent and adequate. Id. Having established that there are unexhausted claims, the

22

issue is whether state procedural rules will now bar these claims.

23

In his Traverse, Petitioner himself provided two state procedural rules that will now bar his

24

claims: In re Waltreus, 62 Cal. 2d 218, 225 (1965) and Ex Parte Dixon, 41 Cal. 2d 756, 759

25

(1953). Under the Waltreus rule, a petitioner cannot raise a claim for habeas review that was

26

previously heard and decided on direct appeal. Fields v. Calderon, 125 F.3d 757, 762 (9th Cir.

27
28

7
Case No. 5:06-CV-04861-EJD
ORDER RE: PETITIONER’S MOTION TO ALTER OR AMEND JUDGMENT

1

1997). Under the Dixon rule, a petitioner cannot raise an issue in a post-appeal habeas petition

2

when that issue was not, but could have been, raised on appeal. Id. Petitioner stated: “It is certain

3

the state court would not hear petitioner’s claims on the merits. While petitioner could return to

4

state court to file a state habeas corpus petition, he would not be able to raise any claims which

5

was previously raised and rejected on direct appeal, or which should have been raised on appeal.”

6

Dkt. No. 66 at 7. In the instant motion, Petitioner contends that he should be able to litigate the

7

validity of these bars he cited. Dkt. No. 72 at 3-4. However, the Ninth Circuit does not consider

8

either of these bars to be independent and adequate for procedural default. See Hill v. Roe, 321

9

F.3d 787, 789 (9th Cir. 2002) (a citation to Waltreus does not bar federal court review); La Crosse
v. Kernan, 244 F.3d 702, 707 (9th Cir. 2001) (a reliance on Dixon does not rest on adequate and

11
United States District Court
Northern District of California

10

independent state ground barring federal habeas review).

12

Another state procedural rule to consider is California’s untimeliness bar under In re Clark,

13

5 Cal. 4th 750 (1993) and In re Robbins, 18 Cal. 4th 770 (1998). The U.S. Supreme Court

14

recently held that the California untimeliness rule is independent and adequate for procedural

15

default. Walker v. Martin, —U.S.—, 131 S. Ct. 1120, 1124-26 (2011). Under this rule, habeas

16

petitions filed after “substantial delay” are barred, though there are no standards for determining

17

what period of time or factors constitute “substantial delay” in noncapital cases. King v.

18

LaMarque, 464 F.3d 963, 966 (9th Cir. 2006); see Bennett v. Mueller, 322 F.3d 573, 579-80 (9th

19

Cir. 2003) (a six-year default is a substantial delay). Here, the California Court of Appeal

20

affirmed Petitioner’s conviction in 2003. Petitioner failed to raise some of the claims to the

21

California Supreme Court when he petitioned for review in 2003. Given that over ten years have

22

passed, it would be untimely to now petition the California Supreme Court to review the

23

unexhausted claims.

24

Furthermore, in the instant motion, Petitioner makes statements acknowledging that his

25

unexhausted claims are procedurally barred in state court. He states: “Although petitioner’s

26

claims were defaulted in the sense that they would be barred by the state courts, such a default

27
28

8
Case No. 5:06-CV-04861-EJD
ORDER RE: PETITIONER’S MOTION TO ALTER OR AMEND JUDGMENT

1

does not, as assumed by this Court, automatically result in the claims being barred in federal

2

court.” Dkt. No. 72 at 2. He further states: “[Petitioner’s] admission in the traverse that some

3

claims were barred in state court was not an admission that the state court defaults would cause the

4

claims to be barred in federal court.” Id. at 3. Petitioner provides no authority to support the

5

proposition that a claim’s procedural default in state court is inapplicable in federal court, but

6

instead relies on the State’s waiver of the procedural default defense, which was addressed above.

7

Thus, whether the state procedural bar is In re Waltreus and Ex Parte Dixon, as he cited in his

8

Traverse, or California’s untimeliness requirement, Petitioner does not dispute that his

9

unexhausted claims are procedurally barred in state court.
In federal court, Petitioner’s claims are procedurally defaulted because they have not been

10

United States District Court
Northern District of California

11

exhausted and the California untimeliness rule would now bar consideration of these claims.

12

3.

Demonstrating Cause and Prejudice

13

The Ninth Circuit has stated that if a petitioner’s claim is procedurally defaulted, then the

14

petitioner can show cause and prejudice to prevent application of the default in federal court.

15

Dickens v. Ryan, 740 F.3d 1302, 1317 (9th Cir. 2014). As stated above, the petitioner must

16

demonstrate an objective factor outside of his control and demonstrate that the errors worked to

17

his actual and substantial disadvantage, infecting his entire proceeding with errors of constitutional

18

dimension. Cooper, 641 F.3d at 327. Accordingly, this court will allow Petitioner to show cause

19

and prejudice arising from the procedural default explained herein.

20

IV.

21

CONCLUSION
For the foregoing reasons, the court will permit further litigation in this action in order to

22

provide Petitioner with an opportunity to show cause and prejudice to overcome the procedural

23

default explained herein. Petitioner may file an opening brief on this topic of no more than 10

24

pages on or before October 24, 2014. The State may file an opposition brief of no more than 10

25

pages on or before November 14, 2014. Petitioner may then file a reply brief of no more than 5

26
27
28

9
Case No. 5:06-CV-04861-EJD
ORDER RE: PETITIONER’S MOTION TO ALTER OR AMEND JUDGMENT