Jackson v. Santana

Filing 15

ORDER (1) Overruling Petitioner's Objection; (2) Adopting 13 Report and Recommendation; (3) Denying Petition for Writ of Habeas Corpus. Signed by Judge Janis L. Sammartino on 07/08/2019. (All non-registered users served via U.S. Mail Service)(mme)

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UNITED STATES DISTRICT COURT

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SOUTHERN DISTRICT OF CALIFORNIA

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TONY JACKSON,

Case No.: 18-CV-212 JLS (WVG)
Petitioner,

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ORDER (1) OVERRULING
PETITIONER’S OBJECTIONS;
(2) ADOPTING REPORT AND
RECOMMENDATION; AND
(3) DENYING PETITION FOR
WRIT OF HABEAS CORPUS

v.
J. SANTANA, Warden,

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Respondent.

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(ECF No. 13)

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Presently before the Court is Magistrate Judge William V. Gallo’s Report and

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Recommendation (“R&R,” ECF No. 13), recommending that the Court deny Petitioner

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Tony Jackson’s Petition for Writ of Habeas Corpus (ECF No. 1). Also before the Court is

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Petitioner’s Objections to the R&R (“Objs.,” ECF No. 14). Respondent filed no objections

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or reply. Having considered the Parties’ arguments and the law, the Court OVERRULES

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Petitioner’s Objections, ADOPTS the R&R in its entirety, and DENIES the Petition.

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BACKGROUND
Magistrate Judge Gallo’s R&R contains a thorough and accurate recitation of the

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factual and procedural history underlying the case.

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incorporates by reference the background as set forth therein.

See R&R at 2–7.

This Order

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LEGAL STANDARD
I.

Review of the Report and Recommendation

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Federal Rule of Civil Procedure 72(b) and 28 U.S.C. § 636(b)(1) set forth a district

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court’s duties in connection with a magistrate judge’s report and recommendation. The

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district court must “make a de novo determination of those portions of the report or

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specified proposed findings or recommendations to which objection is made,” and “may

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accept, reject, or modify, in whole or in part, the findings or recommendations made by the

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magistrate judge.” 28 U.S.C. § 636(b)(1); see also United States v. Raddatz, 447 U.S. 667,

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673–76 (1980); United States v. Remsing, 874 F.2d 614, 617 (9th Cir. 1989). In the absence

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of timely objection, however, the Court “need only satisfy itself that there is no clear error

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on the face of the record in order to accept the recommendation.” Fed. R. Civ. P. 72

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advisory committee’s note (citing Campbell v. U.S. Dist. Court, 501 F.2d 196, 206 (9th

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Cir. 1974)).

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II.

Review of Habeas Corpus Petitions Under 28 U.S.C. § 2254

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This Petition is governed by the Antiterrorism and Effective Death Penalty Act of

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1996 (“AEDPA”) because it was filed after April 24, 1996 and Petitioner is in custody

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pursuant to the judgment of a state court. See Lindh v. Murphy, 521 U.S. 320, 336 (1997).

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Under AEDPA, a court may not grant a habeas petition “with respect to any claim that was

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adjudicated on the merits in State court proceedings,” 28 U.S.C. § 2254(d), unless the state

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court’s judgment “resulted in a decision that was contrary to, or involved an unreasonable

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application of, clearly established Federal law, as determined by the Supreme Court of the

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United States,” § 2254(d)(1), or “was based on an unreasonable determination of the facts

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in light of the evidence presented in the State court proceeding,” § 2254(d)(2).

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Where there is no reasoned decision from the highest state court to which the claim

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was presented, the court “looks through” to the last reasoned state court decision and

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presumes it provides the basis for the higher court’s denial of a claim or claims. See Ylst

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v. Nunnemaker, 501 U.S. 797, 805–06 (1991); Cannedy v. Adams, 706 F.3d 1148, 1156

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(9th Cir. 2013), as amended on denial of rehearing, 733 F.3d 794 (9th Cir. 2013), cert.
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denied, 571 U.S. 1170 (2014). Where “the last reasoned opinion on the claim explicitly

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imposes a procedural default, [a court] will presume that a later decision rejecting the claim

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did not silently disregard that bar and consider the merits.” Ylst, 501 U.S. at 803.

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A state court need not cite Supreme Court precedent when resolving a habeas corpus

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claim. See Early v. Packer, 537 U.S. 3, 8 (2002). “[S]o long as neither the reasoning nor

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the result of the state-court decision contradicts [Supreme Court precedent,]” the state court

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decision will not be “contrary to” clearly established federal law. Id.

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ANALYSIS

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Magistrate Judge Gallo recommends that the Petition be denied because it is

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procedurally barred under California’s timeliness rule. See generally R&R. Petitioner

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objects to Magistrate Judge Gallo’s finding that he failed to show cause why the Petition

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should still be allowed. See generally Objs. The Court reviews de novo those findings to

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which Petitioner objects.

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I.

California’s Timeliness Rule

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In the R&R, Magistrate Judge Gallo first determines that the Petition is procedurally

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barred under California’s timeliness rule. R&R at 9. Magistrate Judge Gallo finds that

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“the California Court of Appeal clearly and expressly denied Petitioner’s state petition . . .

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as procedurally barred,” id., because Petitioner filed his Petition “two years after he was

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sentenced without any explanation for the delay.” Id. (quoting Lod. 11 at 1, ECF No. 7-24).

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When “a state court denie[s] a claim based on an independent and adequate state

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procedural rule,” a federal court may not grant the petitioner relief on the merits. Ayala v.

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Chappell, 829 F.3d 1081, 1095 (9th Cir. 2016). “It is well settled that California’s

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timeliness rule . . . constitutes an independent and adequate state procedural ground barring

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subsequent habeas relief in federal court.” R&R at 10 (citing Walker v. Martin, 532 U.S.

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307, 317 (2011); Ayala, 829 F.3d at 1095 (“Walker holds that California’s timeliness rule

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is an independent and adequate state law ground sufficient to bar federal habeas relief on

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untimely claims.”) (emphasis in original)).

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Magistrate Judge Gallo notes, however, that “the Petition may proceed” despite

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failure of the timeliness rule “if Petitioner can demonstrate cause for the default and show

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actual prejudice, or that failure to consider the claims will result in a fundamental

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miscarriage of justice.” Id. at 10 (citing Coleman v. Thompson, 501 U.S. 722, 750 (1991)).

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Magistrate Judge Gallo concludes that Petitioner “failed to show the requisite

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cause.” Id. at 11. Regarding Petitioner’s argument concerning ineffective assistance of

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counsel, Magistrate Judge Gallo concludes that “any argument that Petitioner’s counsel

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erred by not timely raising a habeas petition before the state court is unavailing as cause.”

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Id. And, even if Petitioner had proven cause, Magistrate Judge Gallo concludes that

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Petitioner offers no arguments regarding prejudice and his arguments regarding

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miscarriage of justice are “conclusory” and “insufficient.” Id.

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Petitioner raises two objections to Magistrate Judge Gallo’s finding that Petitioner

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fails to demonstrate cause. Objs. at 6–7. First, Petitioner rehashes his argument raised in

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his response regarding ineffective assistance of counsel. Id. at 6. Petitioner claims that the

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cause for default was his counsel’s refusal to bring his claims. Id. According to Petitioner,

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he “waited for [appellate] counsel to get back to [him]” regarding whether Petitioner had a

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possible claim “concerning proof of identity with regards to strike priors” but “[c]ounsel

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[led] Petitioner on until the time had pas[sed] to file a timely petition.” Id. at 6–7.

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The Court must agree with Magistrate Judge Gallo that failure of Petitioner’s counsel

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to timely raise a habeas petition is insufficient to establish cause. “[W]here the State has

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no responsibility to ensure that the petitioner was represented by competent counsel . . . the

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Petitioner bears the risk . . . for all attorney errors made in the course of the representation.”

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Coleman, 501 U.S. at 754. Because “[t]here is no constitutional right to an attorney in state

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post-conviction proceedings,” id. at 752, Petitioner’s arguments that his attorney’s error

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led to the late filing of his state habeas petition “cannot be constitutionally ineffective” and

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does not constitute cause. Id. at 752–53 (internal quotation marks omitted).

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Second, Petitioner argues generally that he has been prejudiced and there has been a

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miscarriage of justice. See generally Objs. He claims that there has been a miscarriage of
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justice because the “strike priors [were] not proved beyond a reasonable doubt” due to the

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fact that “defen[s]e counsel clearly stated that Petitioner would not contest identity with

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respect to the prison priors.” Id. at 6. Petitioner further contends that he was prejudiced

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because “if counsel would have informed Petitioner” that he did not have a claim regarding

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the strike priors “the [P]etition would have been timely.” Id. at 7. Petitioner failed to prove

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the element of cause and, therefore, any evidence establishing prejudice or miscarriage of

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justice is inadequate to procure federal habeas review. The Court therefore must agree

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with Magistrate Judge Gallo’s recommendation that the Petition should be denied.

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II.

Merits of the Petition
Magistrate Judge Gallo did not reach the merits of Petitioner’s claims because he

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found the Petition procedurally barred.

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recommendation and argues that there is “clear and convincing evidence” to support his

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claims and therefore the Court should consider the merits of his claims. Objs. at 2.

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Ordinarily, the Court would review de novo those portions of Magistrate Judge Gallo’s

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R&R to which Petitioner objected. Because the Court adopts Magistrate Judge Gallo’s

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R&R in its entirety, however, including his recommendation to deny the Petition under the

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timeliness procedural bar, the Court does not reach the merits and overrules Petitioner’s

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objection.

Petitioner objects to this

The Court therefore OVERRULES Petitioner’s objections and ADOPTS

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See R&R at 11.

Magistrate Judge Gallo’s recommendation that the Court deny the Petition.

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CONCLUSION

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In light of the foregoing, the Court:

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1. OVERRULES Petitioner’s Objections (ECF No. 14),

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2. ADOPTS in its entirety Magistrate Judge Gallo’s R&R (ECF No. 13), and

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3. DENIES the Petition (ECF No. 1).

The Court DENIES a certificate of

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appealability because the issues are not debatable among jurists of reason and there are no

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questions adequate to deserve encouragement. See Miller-El v. Cockrell, 537 U.S. 322,

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327 (2003). The Clerk of the Court SHALL enter judgment denying the Petition.

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IT IS SO ORDERED.
Dated: July 8, 2019

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