Donald Washington, Jr.,petitioner-appellant, v. Steve Cambra,opinion Respondent-appellee, 208 F.3d 832 (9th Cir. 2000)

Petitioner Donald Washington appeals from the district court's dismissal of his federal habeas petition on grounds of procedural default. We granted a certificate of appealability on the question whether, in 1994, the California Supreme Court regularly and consistently applied the procedural bar rules established in In re Swain, 209 P.2d 793 (Cal. 1949), and In re Dixon, 264 P.2d 513 (Cal. 1953). After the parties submitted their briefs in this case, the Ninth Circuit decided Park v. California, 202 F.3d 1146,(9th Cir. 2000) holding that Dixon did not provide an independent state law basis for denying federal constitutional claims. We have jurisdiction pursuant to 28 U.S.C. S 2253(c). Following Park, we reverse the district court's dismissal of Washington's federal habeas petition.

Following a jury trial, Washington was convicted of battery on a correctional officer, resisting arrest, and assault by force likely to produce great bodily injury. Washington filed a direct appeal with the California Court of Appeal, raising issues related to his sentencing and his request for substitute counsel. On August 19, 1994, the California Court of Appeal affirmed Washington's conviction but remanded the case for re-sentencing.

Washington did not pursue a direct appeal to the California Supreme Court. He did, however, file a pro se petition seeking a writ of habeas corpus. The petition in that court made two claims: (1) that his right to a fair trial was violated when the jury saw him in court in waist chains, manacles, and leg irons; and (2) that the government improperly used his postMiranda silence as evidence of his sanity. On May 28, 1997, the California Supreme Court denied Washington's petition in a two-line disposition: "Petition for writ of habeas corpus DENIED. (In re Swain (1949) 34 Cal. 2d 300, 304; In re Dixon (1953) 41 Cal. 2d 756, 759)."

Shortly thereafter, Washington filed a pro se habeas petition in federal district court asserting the same claims he made in the state petition. The state moved to dismiss under Swain and Dixon on grounds of procedural default. The district court granted the motion and we subsequently granted a certificate of appealability on the question whether Swain and Dixon were regularly and consistently applied by the California Supreme Court in 1994, the year Washington made his direct appeal to the California Court of Appeal.

We review de novo a district court's dismissal of a petition for writ of habeas corpus on grounds of state procedural default. See Fields v. Calderon, 125 F.3d 757, 759-60 (9th Cir. 1997), cert. denied, 523 U.S. 1132 (1998).

In Swain, the California Supreme Court held that a state habeas petitioner who "belatedly presents a collateral attack . . . [must] explain the delay in raising the question." 209 P.2d at 795. The Swain rule is commonly referred to as the "untimeliness" bar. See In re Robbins, 959 P.2d 311, 340 n.34 (Cal. 1998). In Dixon, the California Supreme Court held that "in the absence of special circumstances constituting an excuse for failure to employ [the] remedy [of direct review], the writ will not lie where the claimed errors could have been, but were not, raised upon a timely appeal from a judgment of conviction." 264 P.2d at 514. The Dixon and Swain rules are "separate and distinct" procedural bars. Park, 202 F.3d at 1152 n. 3.

Because Washington's federal habeas petition raises the same claims as his state petition, he has procedurally defaulted on those claims only if Swain and Dixon "provide [ ] adequate and independent state grounds for the California Supreme Court's decision." Fields, 125 F.3d at 760. In examining the Swain and Dixon procedural bars, we may reverse the dismissal if either rule is not adequate and independent. This is so because the California Supreme Court invoked both rules without specifying which rule applied to which of Washington's two claims. See Calderon v. Bean, 96 F.3d 1126, 1131 (9th Cir. 1996) (state procedural default no bar to federal review where state court's order did not specify which rule applied to which claims); Morales v. Calderon, 85 F.3d 1387, 1392 (9th Cir. 1996) (" [A] procedural default based on an ambiguous order that does not clearly rest on independent and adequate state grounds is not sufficient to preclude federal collateral review") (citing Siripongs v. Calderon, 35 F.3d 1308, 1317-18 (9th Cir. 1994)).

In Park, we held that the Dixon rule does not provide an "independent" state law basis for denying a habeas petition (filed before In re Robbins) which raises fundamental constitutional errors. We reasoned that " [f]or a state procedural rule to be `independent,' the state law ground for decision must not be `interwoven with the federal law.' " 202 F.3d at 1152 (quoting Michigan v. Long, 463 U.S. 1032, 1040-41 (1983), and citing Harris v. Reed, 489 U.S. 255, 265 (1989)). Because a "fundamental constitutional error" qualified as an exception to both the Dixon and Swain rules under state law,¹  we concluded that the California Supreme Court "necessarily addressed fundamental constitutional claims when applying the Dixon rule." Id. at 1152. Thus the Dixon rule is not independent of federal law and does not preclude federal habeas review where the petitioner asserts the denial of a federal constitutional right. Id. at 1152-53. This is so regardless of the answer to the question we certified here (whether the Dixon rule was regularly and consistently applied in 1994).

Both of Washington's claims involve allegations of constitutional error. First, Washington contends that his rights to due process and a fair trial were violated when the jury was allowed to see him in waist chains, manacles, and leg irons. See Spain v. Rushen, 883 F.2d 712, 716 (9th Cir. 1989) ("Generally, a criminal defendant has a constitutional right to appear before a jury free of shackles."); see also Illinois v. Allen, 397 U.S. 337, 344 (1970) (shackles may be used only as a "last resort"). Second, Washington contends that the prosecutor violated his due process rights by referring to his post-Miranda silence as evidence of his sanity. See Wainright v. Greenfield, 474 U.S. 284 (1986); cf. People of Guam v. A.C. Cruz, 70 F.3d 1090, 1092-93 (9th Cir. 1995). Therefore, he cannot be held to have procedurally defaulted under Dixon.

REVERSED AND REMANDED.