Melgoza v. Kirkland

Filing 93

ORDER denying 71 Petitioner's Motion to Alter or Amend Judgment. Signed by Judge Edward J. Davila on 08/13/2015. (ejdlc4S, COURT STAFF) (Filed on 8/13/2015)

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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SAN JOSE DIVISION

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ADRIAN MELGOZA,

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

Petitioner,
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ORDER DENYING PETITIONER’S
MOTION TO ALTER OR AMEND
JUDGMENT

v.
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RICHARD KIRKLAND, Warden,

Re: Dkt. No. 71

United States District Court
Northern District of California

Respondent.
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Petitioner Adrian Melgoza (“Petitioner”), a California prisoner represented by counsel,

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filed this habeas action seeking federal review of a state conviction and sentence imposed by Santa

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Cruz County Superior Court. On October 15, 2012, this court denied the petition and declined to

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issue a certificate of appealability. See Dkt. No. 69. A judgment consistent with that order was

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filed the same day. See id.

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Presently before the court is Petitioner’s Motion to Alter or Amend Judgment pursuant to

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Federal Rule of Civil Procedure 59(e). See Dkt. No. 71. Having received additional briefing on

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the issue of procedural default and in light of the complete record presented, the court finds this

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matter suitable for decision without oral argument pursuant to Civil Local Rule 7–1(b).
For the reasons explained below, Petitioner’s motion is DENIED.

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I.

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

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order and is repeated here only to the extent relevant to the present issues. See Dkt. No. 69 at 1-6.

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In 2001, a jury found Petitioner guilty of one count of murder, one count of discharging a firearm

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at an occupied motor vehicle, one count of discharging a firearm from a motor vehicle, and four

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counts of conspiracy. See id. at 6. The jury also found true special allegations that Petitioner

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personally used a firearm, that he inflicted great bodily injury, and that the crimes were gang

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related. See id. Petitioner was subsequently sentenced to a term of 52 years to life in state prison.

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See id.

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Petitioner appealed his conviction to the California Court of Appeal, where he raised the

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following claims: (1) the magistrate judge who issued the arrest warrant and denied Petitioner’s

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applications for bail was neither neutral nor detached; (2) the admission of hearsay evidence

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presented at trial, consisting of statements made by Mario Rodriguez, Juan Macedo, and Alejandro

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Ramirez, violated his constitutional rights; and (3) the admission of hearsay statements made by
Oscar Macias, and the administration and results of the Voice Stress Analyzer test (“VSA”)

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United States District Court
Northern District of California

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violated his right to due process. See People v. Melgoza, No. H023236, 2003 WL 22708685, at

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*6, 15, 20 (Cal. Ct. App. Nov. 14, 2003). On November 14, 2003, the California Court of Appeal

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rejected Petitioner’s arguments and affirmed the conviction. See id. at *25.

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Thereafter, Petitioner sought review in the California Supreme Court. But with the

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exception of his claim challenging the admission of Rodriguez’s hearsay statements, Petitioner did

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not raise his other appellate claims before that court. Indeed, in his petition for review, Petitioner

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did not include the same challenges to the other hearsay statements or the VSA results he

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presented to the California Court of Appeal. See Dkt. No. 79 at 7. On February 24, 2004, the

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California Supreme Court denied the petition for review. See id.

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In February 2005, Petitioner filed his first federal habeas petition in this court without

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counsel. See Melgoza v. Kirkland, No. 05-cv-0782-JW (N.D. Cal.), Dkt. No. 1. On May 3, 2006,

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the court dismissed the petition without prejudice for failing to pay the filing fee, and entered

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judgment. See id., Dkt. Nos. 4, 5.

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In August 2006, Petitioner filed a second federal habeas petition, which is now the

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operative petition in this case. See Dkt. No. 1. On December 20, 2007, the court (at that time,

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Judge James Ware) dismissed the petition as untimely under the statute of limitations and entered

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judgment. See Dkt. Nos. 8, 9. On August 7, 2008, the court denied Petitioner’s ensuing motion

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for a certificate of appealability. See Dkt. No. 19. Petitioner appealed the judgment, and on

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November 5, 2008, the Ninth Circuit granted Petitioner’s request for a certificate of appealability

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and granted a motion for appointment of counsel. See Dkt. No. 25. On March 26, 2010, the Ninth

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Circuit found the second habeas petition timely, reversed the district court’s judgment, and

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remanded the matter to this court for consideration on the merits. See Dkt. No. 35.

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Upon remand, the court appointed counsel to represent Petitioner and ordered Respondent

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(the “State”) to file an answer to the petition. See Dkt. Nos. 39, 40. The State did so in September

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2010, and Petitioner filed a traverse three months later. See Dkt. Nos. 45, 65. In September 2012,

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this case was reassigned to the undersigned judge. See Dkt. No. 68.

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On October 15, 2012, the court issued an order denying the petition for writ of habeas

United States District Court
Northern District of California

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corpus and denying a certificate of appealability. See Dkt. No. 69. Relevant here, the court found

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that Petitioner did not exhaust constitutional challenges to the admission of certain hearsay

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statements and to the VSA results because he failed to include those claims in his petition for

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review before the California Supreme Court. See id. at 14, 17-18. Since those claims were

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unexhausted and, by that time, barred by state procedural rules, the court determined they were

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procedurally defaulted. See id. at 14, 18. Consequently, Petitioner could not obtain federal habeas

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review of those claims. Judgment was entered against Petitioner that same day. See id. at 23.

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In November 2012, Petitioner filed the instant Motion to Alter or Amend Judgment, which

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was fully briefed. See Dkt. Nos. 71, 72, 74, 76–78. On September 26, 2014, the court issued a

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preliminary order on that motion with four findings: (1) the State waived its procedural default

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defense because it failed to raise the argument in its answer brief; (2) the court, however, was

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permitted to raise and enforce the procedural default sua sponte; (3) certain claims brought by

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Petitioner were unexhausted because he failed to raise them in his petition for review before the

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California Supreme Court; and (4) the unexhausted claims are procedurally defaulted due to

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California’s untimeliness rule. See Dkt. No. 79 at 5-7, 9. In light of the final finding, the court

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afforded Petitioner an opportunity to overcome the default by demonstrating cause and prejudice.

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See id. at 9. The parties fully briefed that issue, which this order now addresses. See Dkt. Nos.

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88, 91, 92.
II.

LEGAL STANDARD
A motion under Rule 59(e) may be granted on the following grounds: “(1) if such motion

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is necessary to correct manifest errors of law or fact upon which the judgment rests; (2) if such

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motion is necessary to present newly discovered or previously unavailable evidence; (3) if such

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motion is necessary to prevent manifest injustice; or (4) if the amendment is justified by an

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intervening change in controlling law.” Allstate Ins. Co. v. Herron, 634 F.3d 1101, 1111 (9th Cir.

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2011). Rule 59(e) “offers an extraordinary remedy, to be used sparingly in the interests of finality

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and conservation of judicial resources.” Kona Enters., Inc. v. Estate of Bishop, 229 F.3d 877, 890
(9th Cir. 2000) (internal quotations omitted).

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United States District Court
Northern District of California

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III.

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DISCUSSION
Under Rule 59(e), Petitioner argues the court committed a manifest error of law when it

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denied the habeas petition on the ground that procedural default barred federal review. See Dkt.

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No. 72 at 1. This was so, Petitioner claimed, because the State did not affirmatively raise the issue

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of procedural default as a defense in its answer. After further briefing on that topic, however, the

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court has since found that the procedural default doctrine applies to Petitioner’s unexhausted

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claims, regardless of whether the State invoked it. See Dkt. No. 79 at 9. Thus, the sole issue

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remaining is whether Petitioner has shown cause and prejudice sufficient to overcome the

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procedural default.

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A.

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As an initial matter, Petitioner requests the court reconsider its prior finding that some of

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his claims are procedurally defaulted. He argues that enforcement of the doctrine is unfair given

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the unique circumstances of this case. Dkt. No. 88 at 2. In that regard, Petitioner urges the court

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to consider certain equitable factors, such as his limited English proficiency and low level of

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education. Id. at 3-4. He also seeks consideration of the delay caused by prior “erroneous”

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decisions to dismiss his habeas petitions, which he believes contributed to the untimeliness bar.

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Id. at 2-3. According to Petitioner, had the State been ordered to file an answer to his initial 2005

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Reconsideration of the Procedural Default Finding

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petition, he would have been notified of the exhaustion issue earlier and could have returned to the

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California Supreme Court to remedy the problem. Id. at 4.

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These arguments are unpersuasive. As to the equitable factors cited by Petitioner, the court

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disagrees that limited English proficiency or a low educational level, either separately or

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combined, constitute valid grounds to avoid the enforcement of a procedural default in this case.

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Indeed, it does not appear from this record that Petitioner was dissuaded by language or education

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from successfully filing pleadings in English since he was undeniably able to initiate two habeas

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proceedings without counsel. Nor does Petitioner state that his limitations precluded him from

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exhausting his claims in state court, either before or after the habeas petitions were filed. What
Petitioner does admit, however, is that other inmates assisted him by translating and writing

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United States District Court
Northern District of California

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documents on his behalf. See Suppl. Decl. of Adrian Melgoza, Exh. A, Dkt. No. 88-1 at 3. Thus,

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in the same way that such impediments do not support the tolling of a habeas filing deadline,

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Petitioner’s personal circumstances do not preclude application of the procedural default doctrine.

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See Yeh v. Martel, 751 F.3d 1075, 1078 (9th Cir. 2014) (“In his Petition, he admits that ‘other

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inmates assisted him’ in many of his internal appeal filings. Since [petitioner] received assistance

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in translation during the relevant time period, his lack of linguistic understanding could not have

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made it ‘impossible’ for him to meet the deadline.”).

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Likewise, Petitioner’s argument based on purported court delay is unconvincing. It is not

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the State’s burden to notify Petitioner of potential flaws in his case or ensure that Petitioner

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properly exhausted all of his possible habeas claims. See Wolfe v. Smith, 471 Fed. Appx. 760,

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762 (9th Cir. 2012) (“[T]he state cannot be faulted for failing to inform [petitioner] of the

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existence of legal arguments that hypothetically could have helped him; the burden of due

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diligence was on [petitioner].”). Petitioner had ample opportunity to resolve the exhaustion issue

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in state court long before the State filed its answer, and he cites nothing that prevented him from

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doing so. He cannot eschew the responsibility to advance his own claims by shifting that burden

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to the State.

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ORDER DENYING PETITIONER’S MOTION TO ALTER OR AMEND JUDGMENT

Thus, the court finds no reason to depart from the previous order applying the procedural

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default doctrine to Petitioner’s claims.

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B.

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The court will now evaluate whether Petitioner has demonstrated cause and prejudice

Demonstrating Cause and Prejudice

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sufficient to overcome the procedural default. Ordinarily, “a state-court procedural default may be

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excused only if a habeas petitioner can demonstrate both ‘cause’ for the default and resulting

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‘prejudice.’” Nguyen v. Curry, 736 F.3d 1287, 1291 (9th Cir. 2013); see Coleman v. Thompson,

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501 U.S. 722, 753 (1991). “Cause” can be shown by identifying “[a]n objective factor outside of a

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petitioner’s control (e.g., ineffective assistance of counsel or a basis for the claim that was
previously unavailable).” Cooper v. Neven, 641 F.3d 322, 327 (9th Cir. 2011). “The petitioner

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United States District Court
Northern District of California

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can meet the prejudice prong if he demonstrates ‘that the errors . . . worked to his actual and

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substantial disadvantage, infecting his entire [proceeding] with errors of constitutional

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dimension.’” Id. (quoting White v. Lewis, 874 F.2d 599, 603 (9th Cir. 1989)).1

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i.

“Cause”

In an effort to demonstrate “cause,” Petitioner essentially argues that his state appellate

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counsel was ineffective. To that end, he states that appellate counsel provided him with

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incomplete advice, causing him to incorrectly assume that exhaustion of claims before the

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California Supreme Court was unnecessary. Dkt. No. 88 at 7. Petitioner further argues, based on

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the same “erroneous” dismissals of his federal habeas petitions addressed above, that he was not

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notified of the failure to exhaust until he could no longer return to state court to resolve the

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problem. Id. at 8.
To the extent Petitioner’s contention is based on ineffective assistance of counsel, it is

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established that “an individual does not have a constitutional right to counsel in post-conviction

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proceedings, so the prisoner must bear the risk of attorney error that results in a procedural

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A federal court can also consider the procedurally defaulted claim if petitioner “demonstrates
that not hearing the claim would result in a ‘fundamental miscarriage of justice.’” Cooper, 641
F.3d at 327. Here, however, Petitioner does not assert an argument pertaining to a fundamental
miscarriage of justice. Therefore, this court will not address this issue.
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default.” Clabourne v. Ryan, 745 F.3d 362, 375 (9th Cir. 2014) (internal quotations omitted).

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Thus, a prisoner cannot show cause “by claiming that he received ineffective assistance of counsel

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during state post-conviction proceedings.” Id. However, under Martinez v. Ryan, 132 S. Ct. 1309

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(2012), there is a narrow exception “when a State requires a prisoner to raise an ineffective-

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assistance-of-trial-counsel claim in a collateral proceeding.” Id. (quoting Martinez, 132 S. Ct. at

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1315, 1318, 1320). In that instance, “a prisoner may establish ‘cause’ to excuse the procedural

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default of a claim that the prisoner had received ineffective assistance of counsel at trial or during

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sentencing proceedings by demonstrating that counsel in the initial-review collateral proceeding

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was ineffective or there was no counsel in such a proceeding.” Id. Thus, “to establish ‘cause,”
[the petitioner] must establish that his counsel in the state postconviction proceeding was

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United States District Court
Northern District of California

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ineffective under the standards of” Strickland v. Washington, 466 U.S. 668 (1984). Id. at 377.

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“Strickland, in turn, requires him to establish that both (a) post-conviction counsel’s performance

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was deficient, and (b) there was a reasonable probability that, absent the deficient performance,

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the result of the post-conviction proceedings would have been different.” Id.

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Here, the Martinez exception does not apply because Petitioner does not allege in his

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habeas petition that he received ineffective assistance of counsel by either his trial or state

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appellate counsel. See Pizzuto v. Ramirez, 783 F.3d 1171, 1177 (9th Cir. 2015) (finding that

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certain claims could not be construed as ineffective assistance of counsel claims because the

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habeas petition does not allege any specific failures by trial or appellate counsel). The exception

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also does not apply because this is not an instance in which the State of California requires

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Petitioner to raise an ineffective-assistance-of-counsel claim in a collateral proceeding.

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Even assuming arguendo that the Martinez exception applies to Petitioner, he fails to

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demonstrate that his state appellate counsel’s performance was deficient under Strickland and that

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there was a reasonable probability that the result of his post-conviction proceedings would have

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been different. In a declaration provided by Petitioner’s state appellate counsel, he states that,

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based on his knowledge of the facts at that time and a review of the appellate record, he “raised all

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issues in the petition for review that [he] believed were potentially viable from the standpoint of

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obtaining a discretionary grant of review by the California Supreme Court and possible subsequent

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federal habeas corpus relief.” Decl. of David D. Carico, Esq., Exh. C, Dkt. No. 88-1 at ¶ 4. This

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indicates that state appellate counsel’s decision not to raise all claims before the California

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Supreme Court was strategic, rather than a sign of ineffectiveness. See Mitchell v. United States,

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790 F.3d 881, 884 (9th Cir. 2015) (noting that counsel’s strategic decisions do not support a claim

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of ineffective assistance).

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Moreover, Petitioner himself is not certain whether his state appellate counsel actually
misguided him. Petitioner states only that he does “not recall” whether or not state appellate

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counsel informed him of certain claims not included in the petition for review to California

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Supreme Court. See Decl. of Adrian Melgoza, Exh. B, Dkt. No. 88-1 at ¶¶ 8-9. Nor does

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United States District Court
Northern District of California

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Petitioner recall whether or not state appellate counsel informed him that something more needed

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to be filed in state court. Id. It was, however, his “understanding” that he could take the

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information from his appellate opening brief to write his habeas petition. Id. at ¶ 9. Collectively,

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Petitioner’s equivocal statements of possible deficiency on the part of his state appellate counsel

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do not constitute ineffective assistance of counsel. Thus, this argument for “cause” fails.

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As to the purported court delay, the court rejects that argument for the same reasons

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discussed above. Accordingly, Petitioner has not demonstrated sufficient “cause” to excuse the

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procedural default of his unexhausted claims.

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ii.

Prejudice

Petitioner’s inability to demonstrate “cause” renders a discussion of prejudice unnecessary.

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See Bartholomew v. Haviland, 467 Fed. Appx. 729, 731 (9th Cir. 2012) (noting that “the cause

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and prejudice exception . . . requires the presence of both elements,” thus it was unnecessary to

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address the “cause” issue because petitioner did not allege actual prejudice). Nevertheless, the

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court addresses prejudice in an effort to provide a complete analysis.

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Petitioner argues that prejudice was established in two ways: (1) but for the “cause”

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discussed above, Petitioner would have been able to properly exhaust his claims, and (2) he was

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harmed by the underlying constitutional violations. Dkt. No. 88 at 9. Petitioner then refers the

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court to his petition and traverse brief pertaining to the unexhausted claims. Id.
To the extent Petitioner continues to assert that ineffective assistance of counsel caused

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prejudice, Petitioner “must establish that his underlying ineffective-assistance-of-trial-counsel

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claim is a substantial one, which is to say that the prisoner must demonstrate that the claim has

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some merit.” Clabourne, 745 F.3d at 377. Here, however, Petitioner has not included an

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ineffective-assistance-of-counsel claim in his petition, nor has he demonstrated that his state

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appellate counsel was ineffective.

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Furthermore, Petitioner has failed to show that he suffered prejudice from any other form
in which the errors worked to his actual and substantial disadvantage, infecting his entire

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proceeding with errors of constitutional dimension. Prejudice cannot be shown by merely

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United States District Court
Northern District of California

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directing attention to the procedurally defaulted claims. Accordingly, Petitioner has not

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demonstrated sufficient prejudice to excuse the procedural default of his unexhausted claims.

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iii.

Conclusion

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The court finds that Petitioner has failed to demonstrate cause and prejudice sufficient to

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overcome the procedural default on his unexhausted claims. As such, the court will enforce the

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procedural default on his unexhausted claims and declines to review them on the merits.

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With that result, the court concludes the original order denying habeas relief did not

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constitute a manifest error of law. Petitioner’s motion to alter or amend the judgment filed on

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October 15, 2012, will therefore be denied and the judgment will remain undisturbed.

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C.

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In closing, Petitioner requests the court reconsider its decision to decline a certificate of

Reconsideration of Denial of Certificate of Appealability

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appealability. Pursuant to 28 U.S.C. § 2253(c)(2), a certificate of appealability may be issued

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“only if the applicant has made a substantial showing of the denial of a constitutional right.” “A

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petitioner satisfies this standard by demonstrating that jurists of reason could disagree with the

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district court’s resolution of his constitutional claims or that jurists could conclude the issues

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presented are adequate to deserve encouragement to proceed further.” Miller-El v. Cockrell, 537

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U.S. 322, 327 (2003).

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Petitioner believes a certificate of appealability is justified due to the complexity of the

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procedural default question, on which he contends reasonable jurists could disagree. Dkt. No. 88

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at 9. While the issue is a complex one, the court does not find it subject to reasonable debate or

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adequate to proceed further. On that basis, this request is denied.

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IV.

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CONCLUSION
For the foregoing reasons, Petitioner’s Motion to Alter or Amend Judgment is DENIED.

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United States District Court
Northern District of California

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IT IS SO ORDERED.
Dated: August 13, 2015
______________________________________
EDWARD J. DAVILA
United States District Judge

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