Opinion
No. C 12-1019 LHK (PR)
01-06-2014
JAMES EDWARD THOMAS, Petitioner, v. WARDEN SUSAN HUBBARD, Respondent.
ORDER DENYING RESPONDENT'S MOTION TO DISMISS (Docket No. 20)
Petitioner, a state prisoner proceeding pro se, filed a petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. The court ordered respondent to show cause why the petition should not be granted. Respondent filed a motion to dismiss the petition as procedurally defaulted. Upon consideration of the motion, the court denied the motion to dismiss without prejudice. Respondent has now filed a renewed motion to dismiss the petition as procedurally defaulted. Petitioner has filed an opposition. Respondent has not filed a reply. For the reasons stated below, respondent's motion is DENIED.
BACKGROUND
On March 10, 2006, petitioner was sentenced to a term of 25 years to life in state prison after being convicted of first degree burglary and related charges. On October 5, 2007, petitioner filed an original state habeas petition in the California Supreme Court. On March 19, 2008, the California Supreme Court denied the petition. The state appellate court affirmed petitioner's direct appeal on July 16, 2008. (Doc. No. 5, Ex. 1.) On February 29, 2009, the Superior Court denied petitioner's state habeas petition. On April 29, 2009, the state appellate court denied petitioner's state habeas petition. (Doc. No. 5, Ex. 3.) On May 7, 2009, petitioner filed a petition for review in the California Supreme Court, which was denied on July 13, 2009. (Doc. No. 5, Ex. 4.)
The court takes judicial notice of the proceedings initiated by petitioner's state habeas petition in Case No. S156953, filed in the California Supreme Court on October 5, 2007. See Bias v. Moynihan, 508 F.3d 1212, 1225 (9th Cir. 2007) (internal quotation marks and citations omitted) (recognizing that a district court "may take notice of proceedings in other courts, both within and without the federal judicial system, if those proceedings have a direct relation to matters at issue.").
On February 10, 2010, petitioner filed a federal habeas petition pursuant to 28 U.S.C. § 2254 in Thomas v. Kramer, No. 10-0591 LHK (N.D. Cal.). In that petition, petitioner raised the following claims: (1) trial counsel rendered ineffective assistance, (2) the prosecutor committed misconduct, and (3) appellate counsel rendered ineffective assistance. On June 6, 2011, the court determined that petitioner had filed a mixed petition because he had not exhausted his claim that appellate counsel rendered ineffective assistance, and directed petitioner to choose how he would like to proceed. (Thomas v. Kramer, No. 10-0591 LHK, Doc. No. 41.) On November 9, 2011, after having received no definitive answer from petitioner, the court dismissed the case without prejudice and closed the matter.
The court takes judicial notice of the pleadings filed in Thomas v. Kramer, No. 10-0591 LHK (N.D. Cal.).
On June 22, 2011, petitioner filed another state habeas petition in the California Supreme Court. (Doc. No. 5, Ex. 5.) In his petition, petitioner raised the following claims: (1) the pretrial identification procedure was improperly suggestive, and violated his right to due process; (2) trial counsel rendered ineffective assistance and had a conflict of interest when he told the jury that petitioner was guilty of burglary; (3) appellate counsel had a conflict of interest; and (4) the prosecutor committed misconduct during closing argument. On November 2, 2011, the California Supreme Court denied the petition. (Doc. No. 5, Ex. 6.)
Petitioner filed the instant federal habeas petition on February 29, 2012. Petitioner raised the same claims in his federal petition as he did in his 2011 California Supreme Court petition. On June 27, 2012, respondent filed a motion to dismiss this action on the grounds that it was procedurally defaulted because the California Supreme Court summarily denied petitioner's final state habeas petition with a citation to In re Robbins, 18 Cal. 4th 770, 780 (1998), and In re Clark, 5 Cal. 4th 750, 767-69 (1993). (Doc. No. 5, Ex. 6.) On January 11, 2013, the court denied respondent's motion to dismiss. It concluded that while the California Supreme Court's citation to Robbins was an independent and adequate state bar, respondent was incorrect in its assertion that the court's pin cite to Clark signified the court's denial based on timeliness. Rather, the pin cite to Clark discussed the state's rule against the presentation of repetitious and piecemeal claims. Because respondent did not satisfy its burden of adequately pleading the existence of an independent and adequate state bar as to Clark, the court denied respondent's motion to dismiss without prejudice to renewal if respondent wished to argue that the California Supreme Court's pin cite to Clark was an independent and adequate procedural bar. Thus, because it was unclear which citation the California Supreme Court meant to apply to which of the four claims, the court ruled that petitioner's claims were not procedurally barred. See Koerner v. Grigas, 328 F.3d 1039, 1052 (9th Cir. 2003) (when a state court order invokes multiple procedural bars without specifying which bars are applied to which claims, and the federal court is unable to resolve the ambiguity, the state court order will not support a procedural default); Washington v. Cambra, 208 F.3d 832, 833-34 (9th Cir. 2000) (reversing dismissal of habeas petition where California Supreme Court invoked two state law procedural bars without specifying which rule applied to which claim and one of the two bars was not an independent and adequate state bar).
On May 7, 2013, respondent filed the instant motion to dismiss, arguing that petitioner is precluded from obtaining federal habeas relief because petitioner's claims are procedurally defaulted under Robbins and Clark.
In the court's previous order, it stated, "The [c]ourt agrees that a denial without explanation other than a citation to Robbins at 18 Cal. 4th at 780, the page where the court discusses the analytical framework for timeliness determinations, is a denial for untimeliness. Thorson v. Palmer, 479 F.3d 643, 645 (9th Cir. 2007). It is well understood that California's timeliness rule is independent, Bennett v. Mueller, 322 F.3d 573, 582-83 (9th Cir. 2003), and adequate, Walker v. Martin, 131 S. Ct. 1120, 1131 (2011)." Thus, this order will discuss only whether Clark is independent and adequate.
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DISCUSSION
"[C]onsistent with the longstanding requirement that habeas petitioners must exhaust available state remedies before seeking relief in federal court, we have held that when a petitioner fails to raise his federal claims in compliance with relevant state procedural rules, the state court's refusal to adjudicate the claim ordinarily qualifies as an independent and adequate state ground for denying federal review." Cone v. Bell, 556 U.S. 449, 465 (2009). A federal court will not review questions of federal law decided by a state court if the decision also rests on a state law ground that is independent of the federal question, and adequate to support the judgment. Coleman v. Thompson, 501 U.S. 722, 729-30 (1991). However, this does not mean "that federal habeas review is barred every time a state court invokes a procedural rule to limit its review of a state prisoner's claims." Cone, 556 U.S. at 465.
The California Supreme Court's denial of petitioner's 2011 state habeas petition included a citation to Clark, as well as Robbins. In Clark, the petitioner had presented claims that had previously been rejected, as well as claims that had not previously been asserted, but could have been. The California Supreme Court explained that the repetitious presentation of claims already presented in an earlier adjudicated petition where there has been no change in the facts or law substantially affecting the rights of the petitioner bars consideration of those claims. In re Clark, 5 Cal.4th 750, 767-770 (1993). "It has long been the rule that absent a change in the applicable law or the facts, the court will not consider repeated applications for habeas corpus presenting claims previously rejected." Id. at 767. The court explained that it would not consider claims that had been previously rejected, nor would it consider newly presented claims that were known to the petitioner at the time of a prior habeas petition as a matter of procedure. Id. at 767-68.
Here, at least two of petitioner's claims were previously presented to the California Supreme Court: (1) whether trial counsel was ineffective, and (2) whether the prosecutor committed misconduct. See Thomas v. Kramer, No. 10-0591 LHK (N.D. Cal.), Doc. No. 35, Ex. 2. In 2008, the California Supreme Court rejected these claims in a summary denial on the merits.
The Supreme Court has stated that, "[w]hen a state court declines to review the merits of a petitioner's claim on the ground that it has done so already, it creates no bar to federal habeas review." Cone, 556 U.S. at 466. In Cone, the Supreme Court rejected a Tennessee court's reliance on its own rule that the repeated presentation of a claim in state court bars federal review. Id. "A claim is procedurally barred when it has not been fairly presented to the state courts for their initial consideration - not when the claim has been presented more than once." Id. at 467.
The California Supreme Court's pin cite to Clark stands for the proposition that, in general, California state courts will not address repetitious or piecemeal claims, i.e., successive petitions. However, the citation to Clark does not change the fact that petitioner had already fairly presented his claims of ineffective assistance of trial counsel and prosecutorial misconduct for their consideration to the California Supreme Court in 2007. At that time, the California Supreme Court summarily denied those claims without comment or citation, and thus, this court presumes that the denial was on the merits. See Hunter v. Aispuro, 982 F.2d 344, 347-48 (9th Cir. 1992). Although not yet specifically addressed by the Ninth Circuit, several other circuits have previously determined that a state court's refusal to consider the merits of a claim because the claim was previously addressed is not a proper basis for barring federal habeas review. See LeBere v. Abbott, 732 F.3d 1224, 1229 (10th Cir. 2013); Page v. Frank, 343 F.3d 901, 907 (7th Cir. 2003); Spencer v. Seretary, Dept. of Corrections, 609 F.3d 1170, 1181-82 (11th Cir. 2010). Therefore, because at least two of petitioner's claims had been fairly presented and considered by the California Supreme Court, Clark does not bar these claims from federal review. Cf. Ylst v. Nunnemaker, 501 U.S. 797, 804 n.3 (1991) ("Since a later state decision based upon ineligibility for further state review neither rests upon procedural default nor lifts a pre-existing procedural default, its effect upon the availability of federal habeas is nil - which is precisely the effect accorded by the "look-through" presumption.").
Having determined that the California Supreme Court's citation to Clark is not a procedural bar to federal review, this court is again faced with an ambiguous California Supreme Court order in which the citation to Robbins is a procedural bar, and the citation to Clark is not. Respondent contends that the California Supreme Court intended the untimeliness bar, i.e., Robbins, to apply to all four claims presented in petitioner's 2011 petition. However, case law is clear that when the order does not clearly signify which citation the California Supreme Court meant to apply to which claims, and not all the citations are independent and adequate to bar federal habeas review, the procedural bar cannot apply. See Washington, 208 F.3d at 833-34; see also Koerner, 328 F.3d at 1052 (recognizing that a federal court can resolve the ambiguity when "the order affirms a previous lower court order that relies on the same grounds and specifies which grounds are applicable to which claims, there is no reason to assume that the appellate court applied different grounds to different claims").
Accordingly, respondent's motion to dismiss is DENIED.
CONCLUSION
1. Respondent's motion to dismiss the petition (docket no. 20) is DENIED.
2. Respondent shall file with the court and serve on petitioner, within sixty days of the date this order is filed, an answer conforming in all respects to Rule 5 of the Rules Governing Section 2254 Cases, showing cause why a writ of habeas corpus should not be granted. Respondent shall file with the answer and serve on petitioner a copy of all portions of the underlying state criminal record that have been transcribed previously and that are relevant to a determination of the issues presented by the petition. If petitioner wishes to respond to the answer, he shall do so by filing a traverse with the court and serving it on respondent within thirty days of the date the answer is filed.
3. Respondent may file a motion to dismiss on procedural grounds in lieu of an answer, as set forth in the Advisory Committee Notes to Rule 4 of the Rules Governing Section 2254 Cases within sixty days of the date this order is filed. If respondent files such a motion, petitioner shall file with the court and serve on respondent an opposition or statement of non-opposition within twenty-eight days of the date the motion is filed, and respondent shall file with the court and serve on petitioner a reply within fourteen days of the date any opposition is filed.
4. It is petitioner's responsibility to prosecute this case. Petitioner is reminded that all communications with the court must be served on respondent by mailing a true copy of the document to respondent's counsel. Petitioner must keep the court and all parties informed of any change of address by filing a separate paper captioned "Notice of Change of Address." He must comply with the court's orders in a timely fashion. Failure to do so may result in the dismissal of this action for failure to prosecute. See Fed. R. Civ. P. 41(b).
IT IS SO ORDERED. DATED: 1/6/14
/s/_________
LUCY H. KOH
United States Disrict Judge