Jennifer Lynn Henderson v. Deborah K. Johnson
Filing
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ORDER ACCEPTING REPORT AND RECOMMENDATIONS by Judge Philip S. Gutierrez for Report and Recommendation (Issued) 49 (ib)
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UNITED STATES DISTRICT COURT
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CENTRAL DISTRICT OF CALIFORNIA
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JENNIFER LYNN HENDERSON,
Petitioner,
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vs.
DEBORAH K. JOHNSON, Warden,
Respondent.
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CASE NO. SA CV 12-15-PSG (RZ)
Consolidated with
CASE NO. SA CV 11-0128-PSG (RZ)
ORDER ACCEPTING FINDINGS AND
RECOMMENDATIONS OF UNITED
STATES MAGISTRATE JUDGE
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Pursuant to 28 U.S.C. § 636, the Court has reviewed the Petitions, records on
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file, and the Report and Recommendation of United States Magistrate Judge. Further, the
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Court has engaged in a de novo review of those portions of the Report to which Petitioner
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has objected.
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The bulk of the arguments that Petitioner makes in her objections is
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sufficiently addressed in the magistrate judge’s Report. Three of her arguments, however,
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warrant further discussion. First, Petitioner asserts that the Report conflicts with the Ninth
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Circuit’s mandate in Henderson v. Johnson, 710 F.3d 872 (9th Cir. 2013). In Henderson,
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the Ninth Circuit remanded “for the consideration of all exhausted claims.” 710 F.3d at
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873. Petitioner believes that this aspect of the Ninth Circuit’s order required that all of her
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exhausted claims be addressed on their respective merits. Consequently, according to
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Petitioner, the Ninth Circuit’s order prohibited this Court from dismissing any of her claims
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as procedurally defaulted.
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Petitioner’s argument evidences a misunderstanding of the difference between
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an exhausted claim and a procedurally defaulted claim. An exhausted claim is one that has
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been presented to the highest state court. See Franklin v. Johnson, 290 F.3d 1223, 1230
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(9th Cir. 2002). And, to be sure, all of Petitioner’s claims are exhausted, as each was
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presented to the California Supreme Court. This, however, does not mean that the claims
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are not procedurally defaulted and therefore subject to dismissal on that basis. A claim is
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procedurally defaulted when the state court, in this case the California Supreme Court, does
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not address the merits of the claim, but instead denies the claim pursuant to an independent
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and adequate state law ground. Id. Thus, a claim can both be exhausted (in that it was
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presented to the highest state court) and be procedurally defaulted (in that the state court
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rejected it pursuant to an independent and adequate state law ground). See id.
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Although Petitioner is correct that the Ninth Circuit’s order in Henderson required
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this Court to consider all of Petitioner’s exhausted claims for relief, nothing in the Ninth
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Circuit’s order precluded the Court from considering whether any or all of those
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claims were procedurally defaulted. Indeed, as noted in the Report, the Ninth Circuit has
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instructed lower courts that “[w]hen considering claims on habeas corpus, [courts] must
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first address the state’s argument that a claim is procedurally defaulted.” Cooper v. Brown,
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510 F.3d 870, 923 (9th Cir. 2007). As such, the Report’s finding that some of Petitioner’s
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claims were procedurally defaulted did not run afoul of the Ninth Circuit’s opinion in
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Henderson. See Cassett v. Stewart, 406 F.3d 614, 621 (9th Cir. 2005) (Ninth Circuit
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mandate that district court, on remand, dismiss petition without prejudice as unexhausted
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did not foreclose district court from dismissing petition with prejudice as procedurally
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defaulted because Ninth Circuit’s mandate “did not specifically address the issue of
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procedural default”).
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Second, Petitioner contends that the magistrate judge applied the wrong legal
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standard in addressing Petitioner’s claim that the prosecutor withheld the purported fact
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that he had struck an undisclosed deal with Machain in exchange for Machain’s testimony.
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Specifically, Petitioner maintains that the magistrate judge incorrectly required Petitioner
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to show that the prosecutor’s conduct resulted in a fundamental miscarriage of justice.
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According to Petitioner, the proper showing that Petitioner was required to make was that
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a reasonable likelihood existed that the prosecutor’s failure to disclose the purported deal
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affected the jury’s verdict.
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Petitioner’s objection is not well-taken. The magistrate judge’s discussion of
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a “fundamental miscarriage of justice” standard is limited only to the section of the Report
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regarding whether any exception to the procedural default rule existed in Petitioner’s case.
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As set forth in the Report, the procedural bar rule can be set aside if the petitioner
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demonstrates that failure to consider an otherwise procedurally defaulted claim “will result
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in a fundamental miscarriage of justice.” Coleman v. Thompson, 501 U.S. 722, 750, 111
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S. Ct. 2546, 115 L. Ed. 2d 640 (1991). Although Petitioner appears to believe that the
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magistrate judge addressed the merits of Petitioner’s prosecutorial misconduct claim,
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Petitioner is mistaken. The magistrate judge concluded that the prosecutorial misconduct
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claim was procedurally barred. Accordingly, the magistrate judge, in accordance with
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Schlup v. Delo, 513 U.S. 298, 327, 115 S. Ct. 851, 130 L. Ed. 2d 808 (1995), considered
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whether a constitutional violation “probably resulted in the conviction of one who is
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actually innocent.” Having determined that the evidence did not suggest as much, the
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magistrate judge properly concluded that there was no applicable exception to the
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procedural bar rule.
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Finally, Petitioner contends that the magistrate judge misunderstood the nature
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of Petitioner’s challenge regarding the failure to disclose the purported deal that Machain
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struck in exchange for testifying. According to Petitioner, the magistrate judge understood
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Petitioner’s claim to be limited to the failure to disclose any formal deals that Machain
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struck, when, in fact, Petitioner’s claim involved the purported failure to disclose any deal
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with, or promise to, Machain, regardless of whether it was formal or informal. However,
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Petitioner has shown no facts suggesting that there was any deal or promise made to
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Machain other than the one of which the jury was aware – namely, that the prosecutor
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would consider giving Machain leniency in exchange for his testimony. Although
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Petitioner makes much of the fact that the magistrate judge did not use the word “informal”
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in discussing Petitioner’s claim, the fact remains that there is no evidence that there was
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an undisclosed deal – formal or informal – in place when Machain testified.
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In sum, none of Petitioner’s objections is meritorious. The Court, therefore,
accepts the findings and recommendations of the Magistrate Judge.
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DATED: 8/2/13
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PHILIP S. GUTIERREZ
PHILIP S. GUTIERREZ
UNITED STATES DISTRICT JUDGE
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