Allen v. Lizarraga

Filing 17

ORDER GRANTING 15 MOTION TO AMEND ANSWER. Signed by Judge Edward J. Davila on 11/8/2017. (ejdlc2S, COURT STAFF) (Filed on 11/8/2017) Modified text on 11/8/2017 (amkS, COURT STAFF).

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7 ER 11/8/2017 N R NIA vila FO rd J. D a LI dwa Judge E H 6 RT 5 NO 4 ED GRANT A S 3 UNIT ED 2 XAVIER BECERRA Attorney General of California PEGGY S. RUFFRA Supervising Deputy Attorney General HANNA CHUNG Deputy Attorney General State Bar No. 289322 455 Golden Gate Avenue, Suite 11000 San Francisco, CA 94102-7004 Telephone: (415) 703-1610 Fax: (415) 703-1234 E-mail: Hanna.Chung@doj.ca.gov Attorneys for Respondents RT U O 1 S DISTRICT TE C TA F D IS T IC T O R C 8 IN THE UNITED STATES DISTRICT COURT 9 FOR THE NORTHERN DISTRICT OF CALIFORNIA 10 SAN JOSE DIVISION 11 12 13 DONALD GUS ALLEN, 14 5:15-cv-04387-EJD Plaintiff, MOTION TO AMEND ANSWER; SUPPLEMENTAL EXHIBITS 15 v. 16 JOE A. LIZARRAGA, Warden, 17 Respondent. 18 19 20 Respondent hereby moves to amend the answer to include an argument that Claim II is 21 procedurally defaulted, Fed.R.Civ.P. 15(a), and also provides two additional exhibits that are 22 relevant to the resolution of the petition. Rules Governing Section 2254 Cases, Rule 5. 23 Respondent was not previously in possession of the state superior court habeas petition 24 filed on September 16, 2015, or the superior court’s written decision issued January 4, 2016. 25 Habeas counsel recently provided us copies of those documents, which we have attached as 26 Exhibits 16 and 17. 1 As the superior court’s order is the last reasoned state court opinion to 27 28 1 We do not believe petitioner will be prejudiced by this amendment, as habeas counsel represented petitioner in the superior court proceeding. We have no objection if counsel wishes (continued…) 1 Motion to Amend Answer (5:15-cv-04387-EJD) 1 address Claims I-V in the answer and memorandum, this Court may look through to this opinion 2 to conclude that the state court’s decision did not contravene clearly established Supreme Court 3 precedent on federal constitutional law. See Ylst v. Nunnemaker, 501 U.S. 797, 806 (1991) 4 (directing federal courts to look through a state supreme court’s summary denial by examining 5 the last reasoned state-court decision to address the issue). 6 The superior court’s order rejected petitioner’s claims on the merits for reasons similar to 7 those already offered in the memorandum to the answer in this case. Respondent now seeks to 8 amend the answer to include the following additional argument on Claim II. The superior court 9 also rejected the claim concerning Baxter’s alleged vouching on grounds of forfeiture, given that 10 no objection was made at trial or raised on direct appeal. Ex. 17 at 5–6. For reasons of comity, 11 the federal courts “will not review a question of federal law decided by a state court if the 12 decision of that court rests on a state law ground that is independent of the federal ground and 13 adequate to support the judgment.” Coleman v. Thompson, 501 U.S. 722, 729 (1991). 14 The federal courts have recognized that California’s contemporaneous objection rule, which 15 is codified at Cal. Evidence Code § 353, constitutes a valid procedural default. See Fairbank v. 16 Ayers, 650 F.3d 1243, 1256 (9th Cir. 2011) (“California consistently applies its contemporaneous 17 objection rule when a party fails to object to the admission of evidence.”). Moreover, the United 18 States Supreme Court has also acknowledged that California’s forfeiture rule for failure to raise 19 an issue on direct appeal is a valid procedural default. This procedural ground for denying a 20 claim is often called the Dixon bar, after In re Dixon, 41 Cal.2d 756 (1953). In Johnson v. Lee, 21 136 S.Ct. 1802, 1805–06 (2016) (per curiam), the Supreme Court held that California’s Dixon bar 22 constitutes a valid procedural default that precludes federal habeas review. Thus, unless 23 petitioner can show cause and prejudice or a miscarriage of justice, Claim II is procedurally 24 defaulted and must be dismissed. 25 26 27 28 (…continued) to file a supplemental traverse addressing the procedural default argument. 2 Motion to Amend Answer (5:15-cv-04387-EJD) 1 Dated: July 19, 2017 Respectfully submitted, 2 XAVIER BECERRA Attorney General of California PEGGY S. RUFFRA Supervising Deputy Attorney General 3 4 5 /s/ Hanna Chung HANNA CHUNG Deputy Attorney General Attorneys for Respondents 6 7 8 9 SF2017401332 21002583.doc 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 3 Motion to Amend Answer (5:15-cv-04387-EJD)

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