Lee v. Harris, No. 5:2015cv05316 - Document 27 (N.D. Cal. 2016)

Court Description: ORDER GRANTING 23 MOTION TO DISMISS. Signed by Judge Beth Labson Freeman on 12/22/2016. (blflc4S, COURT STAFF) (Filed on 12/22/2016)

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1 2 3 UNITED STATES DISTRICT COURT 4 NORTHERN DISTRICT OF CALIFORNIA 5 SAN JOSE DIVISION 6 7 CHING LEE, Case No. 15-cv-05316-BLF Plaintiff, 8 v. ORDER GRANTING MOTION TO DISMISS 9 10 KAMALA D. HARRIS, [Re: ECF 23] Defendant. United States District Court Northern District of California 11 Before the Court is Respondent’s motion to dismiss the amended petition for writ of 12 13 habeas corpus pursuant to 28 U.S.C. § 2254. Mot., ECF 23. For the reasons stated below, the 14 Court GRANTS the motion to dismiss and DISMISSES with prejudice Petitioner’s petition for 15 writ of habeas corpus. 16 I. BACKGROUND On November 16, 2012, Petitioner was found guilty in Contra Costa County Superior 17 18 Court of inflicting corporal injury on a spouse. Am. Pet. 6, ECF 22. Petitioner was sentenced to 19 three years of probation, and required to serve one day in jail, attend a fifty-two week domestic 20 violence class, and perform twenty hours of community service. Clerk’s Tr. On Appeal 66, ECF 21 22-2. 22 The Contra Costa County Superior Court denied Petitioner’s direct appeal on September 23 19, 2014. Am. Pet. 7. On May 26, 2015, Petitioner filed for a writ of habeas corpus in the 24 Appellate Division of Contra Costa County Superior Court, which was denied on July 17, 2015. 25 Ex. E to Am. Pet., ECF 22-6; Mot. 2. On November 18, 2015, Petitioner filed a petition of writ of 26 habeas corpus in the California Supreme Court. Ex. 1 to Mot. Petitioner’s probation ended two 27 days later on November 20, 2015. Resp. to Mot. (“Resp.”) 5, ECF 24. The California Supreme 28 Court denied the petition on March 23, 2016, citing to People v. Villa, 45 Cal. 4th 1063 (2009) and 1 In re Wessley W., 124 Cal. App. 3d 243, 246 (1981). Ex. F to Am. Pet. On November 19, 2015, Petitioner filed a petition in this Court before his state claim was 2 3 exhausted, but given the California Supreme Court’s later decision denying his petition, his claim 4 has become wholly exhausted. ECF 20. On May 4, 2016, Petitioner filed an amended petition, to 5 which Respondent now moves to dismiss. Am. Pet.; Mot. 6 7 II. LEGAL STANDARD This Court may entertain a petition for a writ of habeas corpus on “behalf of a person in 8 custody pursuant to the judgment of a State court only on the ground that he is in custody in 9 violation of the Constitution or laws or treaties of the United States.” 28 U.S.C. § 2254(a); Rose v. Hodges, 423 U.S. 19, 21 (1975). Prisoners in state custody who wish to challenge collaterally 11 United States District Court Northern District of California 10 in federal habeas proceedings either the fact or length of their confinement are first required to 12 exhaust state judicial remedies, either on direct appeal or through collateral proceedings, by 13 presenting the highest state court available with a fair opportunity to rule on the merits of each 14 and every claim they seek to raise in federal court. 28 U.S.C. § 2254(b), (c); Rose v. Lundy, 15 455 U.S. 509, 515-16 (1982); Duckworth v. Serrano, 454 U.S. 1, 3 (1981); McNeeley v. Arave, 16 842 F.2d 230, 231 (9th Cir. 1988). The state’s highest court must be given an opportunity to 17 rule on the claims even if review is discretionary. See O’Sullivan v. Boerckel, 526 U.S. 838, 18 845 (1999) (petitioner must invoke “one complete round of the State’s established appellate 19 review process.”). 20 However, a federal court will not review questions of federal law decided by a state 21 court if the decision also rests on a state law ground that is independent of the federal question 22 and adequate to support the judgment. Coleman v. Thompson, 501 U.S. 722, 729-30 (1991). 23 In the context of direct review of a state court judgment by a federal court, the “adequate and 24 independent state ground” doctrine goes to jurisdiction; in federal habeas cases, it is also 25 grounded in comity and federalism. Id. The procedural default rule is a specific instance of 26 the more general “adequate and independent state grounds” doctrine. Wells v. Maass, 28 F.3d 27 1005, 1008 (9th Cir. 1994). 28 In cases in which a state prisoner has defaulted his federal claims in state court 2 1 pursuant to an independent and adequate state procedural rule, federal habeas review of the 2 claims is barred unless the prisoner can demonstrate cause for the default and actual prejudice 3 as a result of the alleged violation of federal law, or demonstrate that failure to consider the 4 claims will result in a fundamental miscarriage of justice. Coleman, 501 U.S. at 750. Where 5 petitioner’s claims were not fairly presented to the state courts, but an independent and 6 adequate state procedural rule exists which bars their review, claims are procedurally barred in 7 federal habeas review. Cooper v. Neven, 641 F.3d 322, 327 (9th Cir. 2011). A petitioner must 8 establish factual innocence in order to show that a fundamental miscarriage of justice would 9 result from application of procedural default. See Gandarela v. Johnson, 286 F.3d 1080, 1085 (9th Cir. 2002); Wildman v. Johnson, 261 F.3d 832, 842-43 (9th Cir. 2001). 11 United States District Court Northern District of California 10 III. DISCUSSION 12 Respondent argues that the amended petition should be dismissed as procedurally 13 defaulted. Mot. 3. According to Respondent, Petitioner raised the same two claims of ineffective 14 assistance of trial counsel in state habeas review to the California Supreme Court as those in his 15 federal petition here. Ex. 1 to Mot.; Mot. 4. The California Supreme Court denied the petition 16 citing to People v. Villa, 45 Cal. 4th 1063 (2009) and In re Wessley W., 124 Cal. App. 3d 243, 246 17 (1981). The California courts in these two cited cases held that California Penal Code section 18 1473(a) only makes habeas relief available to petitioners in constructive custody, and not those out 19 of custody. Mot. 4. Given that Petitioner’s probation ended just two days after he petitioned the 20 California Supreme Court, Respondent argues that the California Supreme Court rightly barred his 21 claims under Villa. Id. Respondent further claims that the imposition of the Villa bar was 22 “adequate,” because it is “firmly established” and “regularly followed.” Id. at 4-5. 23 Petitioner disputes that the California Supreme Court’s denial of his petition rested on “an 24 adequate and independent state law basis.” Resp. 3. Specifically, Petitioner argues that references 25 to federal law were interwoven throughout Villa. Id. at 4. Petitioner also argues that the instant 26 case differs from Villa, in that he filed his state habeas petition when he was still on probation. Id. 27 Separately, Petitioner contends that jurisdiction has already attached to this Court because an 28 expired sentence does not render the federal petition moot as long as the petitioner was in custody 3 1 “at the time his petition was filed.” Id. at 5-6 (citing Maleng v. Cook, 490 U.S. 488, 490-91 2 (1989)). Lastly, Petitioner claims that even if there were an independent and adequate state 3 procedural ground, he can demonstrate cause and prejudice. Id. at 6. 4 5 A. Whether the California Supreme Court’s Denial Rests on an Independent State Ground The California Supreme Court issued a denial of the state habeas claim, stating only that 6 7 “[t]he petition for writ of habeas corpus is denied. (See People v. Villa (2009) 45 Cal. 4th 1063 and In re Wessley W. (1981) 124 Cal. App. 3d 243, 246.)” Harris v. Superior Court of State of 8 Cal., Los Angeles Cty., 500 F.2d 1124, 1125 (9th Cir. 1974) (noting the practice of the California 9 10 United States District Court Northern District of California 11 12 Supreme Court in entering a “very brief order” denying a petition for a writ of habeas corpus). Here, Petitioner does not dispute that the California Supreme Court’s denial of his petition rests on Villa or that the Villa bar is “firmly established” or “regularly followed.” Walker v. Martin, 562 U.S. 307, 316 (2011); Reply 2. Rather, the main thrust of Petitioner’s argument is that Villa is 13 interwoven with federal law, and thus is not an independent state ground to qualify as a procedural 14 default. Id. at 3-4. The Court now reviews Villa in detail below to evaluate whether the Villa bar 15 is an independent state ground. 16 Avelino Villa, the petitioner in Villa, pled guilty to possession of cocaine for sale in 1989 17 and was sentenced to three years of probation. 45 Cal. 4th at 1066. One year after his conviction, 18 he obtained lawful permanent resident status in United States. Id. at 1066-67. In 2005, when 19 Villa applied to renew his permanent resident status, the Immigration and Naturalization Service 20 (“INS”) arrested him for deportation based on his 1989 conviction. Id. at 1067. Villa then 21 petitioned for writ of habeas corpus to overturn his 1989 conviction, alleging ineffective trial 22 counsel among other claims. Id. The California Supreme Court first noted that availability of the 23 writ of habeas corpus in California is implemented by Penal Code section 1473, subdivision (a), 24 25 26 27 which provides: “Every person unlawfully imprisoned or restrained . . . may prosecute a writ of habeas corpus.” Id. at 1068 (emphasis in original) (citing Cal. Penal Code § 1473(a)). The court then concluded that “a necessary prerequisite for issuance of the writ is the custody or restraint of the petitioner,” where custody can include constructive custody, such as parole or probation. Id. at 28 4 1 1068-69. The court then found that Villa was no longer in the custody of the state of California, 2 the sovereign responsible for the 1989 conviction, but in the custody of INS. Id. at 1072. As 3 such, his detainment for removal “did not constitute ‘custody’ . . . for the purposes of satisfying 4 the habeas corpus jurisdictional requirements of California law.” Id. In other words, the court 5 found that INS’s custody and potential deportation are “collateral consequences” for Villa, and did 6 not constitute “custody for state habeas corpus purposes.” Id. at 1070-72, 1074. 7 Contrary to Petitioner’s arguments, this Court finds that the Villa bar is based on a state 8 ground independent from federal law, made apparent by Villa’s detailed reasoning and its 9 numerous citations to California statutes and cases. Villa’s conclusion that state habeas relief is only available to those in custody stemmed from its interpretation of California Penal Code 11 United States District Court Northern District of California 10 section 1473. Such an interpretation of a state statute constitutes an independent state ground, 12 unrelated to federal law. Although Villa cites to a federal case, Maleng v. Cook, 490 U.S. 488 13 (1989), the discussion there was to provide examples of collateral consequences of a criminal 14 conviction, similar to Villa’s deportation, which do not constitute “custody” for the purpose of 15 California state habeas. 45 Cal. 4th at 1070-71 (holding that collateral consequences, such as the 16 loss of the license to practice medicine, sex offender registration, inability to vote, or inability to 17 serve on a jury, do not constitute constructive custody). Although Villa also cites Maleng for the 18 proposition that “the collateral consequences [] are not themselves sufficient to render an 19 individual ‘in custody’ for the purposes of a habeas attack upon it,” this citation was not 20 interwoven into Villa’s analysis, nor did it form the underpinnings for the Villa bar. Id. at 1071 21 (citing Maleng, 490 U.S. at 492). Rather, the holding in Villa was rooted in the court’s 22 interpretation of California Penal Code section 1473 and based on other California cases 23 interpreting the statute. E.g., 45 Cal. 4th at 1070-71 (citing to In re Wessley W., 124 Cal. App. 3d 24 243, 247 (1981) (finding no constructive custody and thus habeas relief unavailable)). That the 25 California Supreme Court denied Petitioner’s petition for state habeas relief on independent state 26 procedural grounds is reinforced by the additional citation to In re Wessley W., a case that 27 discussed no federal cases and also concluded that collateral consequences, such as being on law 28 enforcement’s “rap sheet,” do not constitute constructive custody under section 1473. 124 Cal. 5 1 2 App. 3d at 246-47. Petitioner also advances the argument that even if the state rule were independent of federal law, a case-by-case inquiry is still required. Resp. 4 (citing to Cooper, 641 F.3d at 332). 4 However, the case-by-case inquiry mentioned in Cooper pertains to a situation where the state 5 court procedural determination relies on a federal constitutional claim. In Cooper, the Nevada 6 Supreme Court analyzed whether the alleged violations under Brady v. Maryland, 373 U.S. 83 7 (1963) qualified for cause and prejudice, to reach its determination on procedural default. 641 8 F.3d at 332. The Ninth Circuit determined that the state court’s decision with respect to those 9 claims in Cooper did not rest on an independent state ground. Here, the California Supreme Court 10 did not analyze Petitioner’s federal claims to deny his petition but rather relied on an independent 11 United States District Court Northern District of California 3 state ground so Cooper is inapposite. 12 B. 13 Petitioner also argues that jurisdiction has attached to this Court when he filed the federal Jurisdiction Attached to This Court 14 petition before he completed his probation. Resp. 5. However, this is inapposite to the doctrine of 15 state procedural default. Although federal law does not moot habeas relief as long as the 16 “petitioner had been in physical custody under the challenged conviction at the time the petition 17 was filed,” the cases proffered by Petitioner say nothing on the issue of state procedural default. 18 E.g., Maleng, 490 U.S. at 492. Contrary to Petitioner’s implication that the alleged attached 19 jurisdiction takes precedence over procedural default, the Ninth Circuit has expressly found that 20 procedural default can still bar federal review where a federal habeas corpus petition is not moot 21 on its own. Wood v. Hall, 130 F.3d 373, 376, 378 (9th Cir. 1997). 22 C. 23 Where, as here, the Court finds an independent and adequate state procedural ground Cause and Prejudice and Miscarriage of Justice 24 supporting the state court denial of a habeas petition, federal habeas review is barred unless the 25 prisoner can “demonstrate cause for the default and actual prejudice as a result of the alleged 26 violation of federal law, or demonstrate that failure to consider the claims will result in a 27 fundamental miscarriage of justice.” Coleman, 501 U.S. at 750. 28 The “cause standard” requires the petitioner to show that ‘“some objective factor external 6 to the defense impeded counsel’s efforts to raise the claim.” McCleskey v. Zant, 499 U.S. 467, 493 2 (1991) (quoting Murray v. Carrier, 477 U.S. 478, 488 (1986)). “Without attempting an exhaustive 3 catalog of such objective impediments to compliance with a procedural rule,” the Supreme Court 4 has noted that “a showing that the factual or legal basis for a claim was not reasonably available to 5 counsel, or that some interference by officials made compliance impracticable, would constitute 6 cause under this standard.” Murray, 477 U.S. at 488 (internal quotation and citations omitted). 7 Next, with respect to the “prejudice” prong, petitioner bears the burden of showing, “not merely 8 that the errors at his trial created a possibility of prejudice, but that they worked to his actual and 9 substantial disadvantage, infecting his entire trial with error of constitutional dimensions.” United 10 States v. Frady, 456 U.S. 152, 170 (1982) (emphasis in original). “To ascertain the level to which 11 United States District Court Northern District of California 1 such errors taint the constitutional sufficiency of the trial, they must ‘be evaluated in the total 12 context of the events at trial.’” See Paradis v. Arave, 130 F.3d 385, 393 (9th Cir.1997) (quoting 13 Frady, 456 U.S. at 169). Lastly, the “miscarriage of justice” exception is limited to habeas petitioners who can 14 15 show, based on “new reliable evidence,” that “‘a constitutional violation has probably resulted in 16 the conviction of one who is actually innocent.’” Schlup v. Delo, 513 U.S. 298, 324-27 (1995) 17 (quoting Murray, 477 U.S. at 496); see, e.g., Wildman v. Johnson, 261 F.3d 832, 842-43 (9th Cir. 18 2001) (holding petitioner must establish “factual innocence” in order to show fundamental 19 miscarriage of justice would result from application of procedural default). Here, Petitioner summarily argues that the state court did not timely provide him with a 20 21 full transcript of the trial proceedings, thus establishing cause and prejudice to excuse the 22 procedural default. Resp. 6.1 The Court is not persuaded that the delay in obtaining the transcripts 23 was an “interference” that “made compliance impractical.” Of the transcripts submitted by 24 Petitioner in his state habeas petition, the Clerk’s Transcript was filed on May 1, 2013, and the 25 Reporter’s Transcript was filed in the superior court on April 10, 2013. Reply 5-6 (citing Ex. 1 to 26 1 27 28 Petitioner incomprehensibly argues that “these circumstances have been outlined in previous pleadings in the instant proceeding” Resp. 6, without providing the Court with so much as a clue as to where in the docket such evidence might reside. The Court declines the invitation to sift through the court file and to guess which portions might pertain to this argument. 7 1 Mot.). However, Petitioner did not make a state filing for a writ of habeas corpus until more than 2 two years later on May 26, 2015. Ex. E to Am. Pet.; Reply 6. Even if Petitioner was waiting for 3 the decision on his direct appeal, the direct appeal was denied on September 19, 2014 and 4 Petitioner has offered no explanation as to why he waited until May 26, 2015 to file his state 5 petition. Am. Pet. 7; Ex. E to Am. Pet. Nor is there anything in the record that suggests he could 6 make the requisite showing of “cause.” Given that both “cause and prejudice” are required to 7 excuse the procedural default, Petitioner cannot succeed in overcoming the default when failing to 8 demonstrate “cause.” Nevertheless, Petitioner also conclusorily states in support of the 9 “prejudice” prong, that “exclusion of the evidence that is the subject of this petition would materially alter the outcome of his cases due to the damning nature of the hearsay statements.” 11 United States District Court Northern District of California 10 Resp. 6. Given that Petitioner has made no attempt to expound on why the alleged errors 12 “[infected] his entire trial with error of constitutional dimensions,” Petitioner similarly fails to 13 address the “prejudice” prong. Resp. 6. Finally, Petitioner does not argue that there would be a 14 “miscarriage of justice,” the other exception to procedural default. Accordingly, the Court finds 15 that the procedural default is not excused and the procedural default thus bars federal review of his 16 petition. 17 D. 18 The federal rules governing habeas cases brought by state prisoners require a district court Certificate of Appealability 19 that issues an order denying a habeas petition to either grant or deny therein a certificate of 20 appealability (“COA”). See Rule 11(a) of the Rules Governing Section 2254 Cases. A judge shall 21 grant a certificate of appealability “only if the applicant has made a substantial showing of the 22 denial of a constitutional right,” 28 U.S.C. § 2253(c)(2), and the certificate must indicate which 23 issues satisfy this standard, id. § 2253(c) (3). Specifically, a “petitioner satisfies this standard by 24 demonstrating that jurists of reason could disagree with the district court’s resolution of his 25 constitutional claims or that jurists could conclude the issues presented are adequate to deserve 26 encouragement to proceed further.” Miller–El v. Cockrell, 537 U.S. 322, 327 (2003). 27 “Determining whether a COA should issue where the petition was dismissed on procedural 28 grounds has two components, one directed at the underlying constitutional claims and one directed 8 1 at the district court’s procedural holding.” Slack v. McDaniel, 529 U.S. 473, 484-85 (2000). 2 “When the district court denies a habeas petition on procedural grounds without reaching the 3 prisoner’s underlying constitutional claim, a COA should issue when the prisoner shows, at least, 4 that jurists of reason would find it debatable whether the petition states a valid claim of the denial 5 of a constitutional right and that jurists of reason would find it debatable whether the district court 6 was correct in its procedural ruling.” Id. at 484. As each of these components is a “threshold 7 inquiry,” the federal court “may find that it can dispose of the application in a fair and prompt 8 manner if it proceeds first to resolve the issue whose answer is more apparent from the record and 9 arguments.” Id. at 485. Supreme Court jurisprudence “allows and encourages” federal courts to 10 first resolve the procedural issue, as was done here. See id. United States District Court Northern District of California 11 Here, Petitioner has not made a showing that the procedural default could be excused, and 12 accordingly, a COA will be denied. This Court’s conclusion with respect to procedural default is 13 not subject to reasonable debate. On that basis, this request is denied. Petitioner may not appeal 14 the denial of a COA in this Court but may seek a certificate from the Court of Appeals under Rule 15 22 of the Federal Rules of Appellate Procedure. See Rule 11(a) of the Rules Governing Section 16 2254 Cases. 17 18 IV. ORDER 19 For the foregoing reasons, 20 (1) Respondent’s motion to dismiss is GRANTED and the petition for writ of habeas 21 corpus is DISMISSED WITH PREJUDICE; 22 (2) A certificate of appealability is DENIED; and 23 (3) The Clerk shall enter judgment and close the file. 24 25 26 27 Dated: December 22, 2016 ______________________________________ BETH LABSON FREEMAN United States District Judge 28 9

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