Michael Resendez v. Calipatria State Prison, No. 2:2018cv03801 - Document 15 (C.D. Cal. 2019)
Court Description: MEMORANDUM OPINION AND ORDER DISMISSING PETITION FOR WRIT OF HABEAS CORPUS by Magistrate Judge Autumn D. Spaeth. The Motion to Dismiss 12 is granted, the Petition 1 is denied, and the action is dismissed with prejudice. Judgement shall be entered accordingly. Petitioner is not entitled to a certificate of appealability. (see document for details) (hr)
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Michael Resendez v. Calipatria State Prison Doc. 15 O 1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA 10 Case No. 2:18-0 380 1 ADS MICHAEL RESENDEZ, 11 Petitioner, 12 v. 13 J AMES ROBERTSON, Warden, MEMORANDUM OPINION AND ORDER DISMISSING PETITION FOR WRIT OF HABEAS CORPUS Respondent. 14 15 16 17 I. IN TROD U CTION Pending before the Court is a Petition for Writ of Habeas Corpus by a Person in 18 State Custody (“Petition”) filed by petitioner Michael Resendez (“Petitioner”), a 19 California state prisoner. The Respondent, J am es Robertson, Warden, filed a Motion to 20 Dism iss the Petition for Writ of Habeas Corpus (“Motion to Dism iss”) on the basis that 21 the single claim in the Petition is procedurally defaulted.1 After reviewing the Petition, 22 23 1 J am es Robertson, Acting Warden of Pelican Bay State Prison, where Petitioner is now incarcerated, is substituted in as Respondent pursuant to Fed. R. Civ. Pro. 25(d). 24 Dockets.Justia.com 1 the Motion to Dism iss, Petitioner’s Reply to the Motion to Dism iss, and the lodged 2 records, the Court agrees with Respondent. For the following reasons, the m otion is 3 granted, and the Petition is dism issed with prejudice.2 4 II. RELEVAN T BACKGROU N D 5 A. 6 On J anuary 12, 20 16, a Los Angeles County Superior Court jury convicted State Co u rt Pro ce e d in gs 7 Petitioner of assault with force likely to produce great bodily injury and assault with a 8 deadly weapon (Case No. KA110 0 15). [Dkt. No. 13-1, LD 1, pp. 1-2].3 The jury also 9 found true gang and great bodily injury allegations. [Id., pp. 4-5]. The following day, 10 Petitioner was sentenced to 10 years in prison. [See Dkt. No. 13-2, LD 2, p. 5]. 11 Petitioner filed an appeal in the California Court of Appeal on August 22, 20 16. 12 [Dkt. No. 13-2, LD 2]. On J une 30 , 20 17, the California Court of Appeal denied the 13 appeal and affirm ed the judgm ent of the superior court. [Dkt. No 13-5, LD 5]. 14 Thereafter, Petitioner filed a petition for review in the California Suprem e Court. [Dkt. 15 No. 13-6, LD 6]. It was denied sum m arily on October 11, 20 17. [Dkt. No. 13-7, LD 7]. 16 Then, one m onth later, on Novem ber 13, 20 17, Petitioner filed a petition for writ 17 of habeas corpus in the Los Angeles County Superior Court, raising the sam e claim 18 asserted in the Petition herein. [Dkt. No. 13-8, LD 8]. On Novem ber 16, 20 17, the 19 superior court denied the petition because it was untim ely, failed to establish a prim a 20 facie case for relief, and the claim therein could have been raised on direct appeal. [Dkt. 21 22 2 The parties have voluntarily consented to having the undersigned m agistrate judge resolve the m erits of this case. [Dkt. Nos. 2, 9, 11]. 23 3 All citations to electronically-filed docum ents refer to the CM/ ECF pagination. 24 2 1 13-9, LD 9]. Petitioner then filed two separate petitions for writ of habeas corpus in the 2 California Court of Appeal on October 23, 20 17 and Decem ber 4, 20 17. 4 [Dkt. Nos. 13- 3 10 , LD 10 ; 13-12, LD 12]. The Court of Appeal denied both petitions on procedural 4 grounds. [Dkt. Nos. 13-11, LD 11; 13-13, LD 13]. Thereafter, Petitioner filed a petition 5 for writ of habeas corpus in the California Suprem e Court on J anuary 2, 20 18. [Dkt. No. 6 13-14, LD 14]. On March 14, 20 18, the California Suprem e Court denied the petition, in 7 part, because “courts will not entertain habeas corpus claim s that could have been, but 8 were not, raised on appeal,” citing In re Dixon, 41 Cal.2d 756, 759 (1953). [Dkt. No. 13- 9 15, LD 15]. 10 B. 11 On April 29, 20 18, Petitioner constructively filed the instant Petition pursuant to Fe d e ral Co u rt Pro ce e d in gs 12 28 U.S.C. § 2254. [Dkt. No. 1]. In the Petition, Petitioner raises a single ground for 13 relief: The denial of Petitioner’s severance motion prior to trial violated his Fifth 14 Am endm ent rights under the Constitution. [Dkt. No. 1, pp. 5, 24-28]. On J une 15, 15 20 18, the case was transferred to the docket of the undersigned United States 16 Magistrate J udge. [Dkt. No. 10 ]. 17 On J uly 6, 20 18, Respondent m oved to dism iss the Petition on the basis that the 18 only claim raised in the Petition is procedurally defaulted because the California 19 Suprem e Court denied that claim on grounds that “habeas corpus cannot serve as a 20 substitute for an appeal,” citing Dixon, 41 Cal.2d at 759. See [Dkt. No. 12]. Respondent 21 does not argue otherwise, but, nevertheless, contends that appellate counsel’s 22 23 24 4 The two petitions filed in the California Court of Appeal appear to be identical except for the fact that attached to the second petition was a copy of the Los Angeles County Superior Court’s previous order denying his habeas petition. 3 1 ineffectiveness in failing to raise the issue on direct appeal constitutes cause and 2 prejudice sufficient to overcom e the default. [Dkt. No. 14]. Petitioner argues that 3 appellate counsel failed to include a claim that the trial court erred in denying his pre- 4 trial severance m otion on appeal, despite Petitioner’s “insist[ance]” that the issue be 5 raised. [Dkt. No. 14, p. 2]. He further asserts he was just following appellate counsel’s 6 advice to wait and raise the claim in state collateral proceedings. [Id., pp. 3-4]. 7 8 9 10 11 Respondent’s Motion to Dism iss is now fully briefed and ready for decision. III. TH E CLAIM IN TH E PETITION IS PROCED U RALLY D EFAU LTED A. Th e State Co u rt Re lie d o n an In d e p e n d e n t an d Ad e qu ate Pro ce d u ral Ru le to D e n y Pe titio n e r’s Claim Federal courts cannot grant habeas relief if the following is true: “(1) ‘a state court 12 has declined to address a prisoner’s federal claim s because the prisoner had failed to 13 m eet a state procedural requirem ent,’ and (2) ‘the state judgm ent rests on independent 14 and adequate state procedural grounds.’” Walker v. Martin, 562 U.S. 30 7, 316 (20 11) 15 (alteration om itted) (quoting Colem an v. Thom pson, 50 1 U.S. 722, 729– 30 (1991)); see 16 also Ayala v. Chappell, 829 F.3d 10 81, 10 95 (9th Cir. 20 16) (“The procedural bar 17 doctrine prohibits a federal court from granting relief on the m erits of a state prisoner’s 18 federal claim when the state court denied the claim based on an independent and 19 adequate state procedural rule.”). 20 In evaluating the basis of a procedural bar, a federal court reviews the “last 21 reasoned decision” in state court. Cannedy v. Adam s, 70 6 F.3d 1148, 1156-59, as 22 am ended, 733 F.3d 794 (9th Cir. 20 13). Here, in March 20 18, the California Suprem e 23 Court denied Petitioner’s severance claim raised on collateral review, in part, by citing 24 “In re Dixon (1953) 41 Cal.2d 756, 759 [courts will not entertain habeas corpus claim s 4 1 that could have been, but were not, raised on appeal].” [Dkt. No. 1, p. 22; Dkt. No. 13- 2 15, LD 15]. 3 In Dixon, the California Suprem e Court established that “habeas corpus cannot 4 serve as a substitute for an appeal, and, in the absence of special circum stances 5 constituting an excuse for failure to em ploy that rem edy, the writ will not lie where the 6 claim ed errors could have been, but were not, raised upon a tim ely” direct appeal. 41 7 Cal.2d at 759. The Dixon rule serves as a procedural bar for a habeas petitioner who 8 failed to raise on direct appeal a claim that could have been raised at that juncture. 9 Federal courts have recognized that the Dixon bar is both adequate and 10 independent state procedural rule. See J ohnson v. Lee, 136 S.Ct. 180 2, 180 4 (20 16) 11 (finding that California’s Dixon bar “is longstanding, oft-cited, and shared by habeas 12 courts across the Nation”); see also J ohnson v. Montgom ery, 899 F.3d 10 52, 10 60 (9th 13 Cir. 20 18) (“The United States Suprem e Court held that California’s Dixon rule is an 14 adequate state ground to bar federal habeas review of a petitioner’s claim .”); Aguilar v. 15 Montgom ery, 697 F. App’x 50 5, 50 5-0 6 (9th Cir. 20 17) (finding that district court 16 correctly found claim procedurally barred by Dixon). 17 Petitioner does not raise any challenge to the independence or adequacy of the 18 Dixon rule in this case. See [Dkt. No. 14]. As such, the Court concludes that the Petition 19 is procedurally defaulted pursuant to Dixon. 20 21 22 23 B. Pe titio n e r H as N o t D e m o n s trate d Cau s e an d Pre ju d ice fo r th e D e fau lt A federal habeas court m ay consider a procedurally barred claim if the petitioner “can dem onstrate cause for the default and actual prejudice as a result of the alleged 24 5 1 violation of federal law, or dem onstrate that failure to consider the claim [] will result in 2 a fundam ental m iscarriage of justice.” Colem an v. Thom pson, 50 1 U.S. 722, 750 (1991). 3 4 1. Cau s e an d Pre ju d ice Petitioner argues that his appellate counsel’s failure to raise a severance claim on 5 direct appeal constitutes sufficient cause to excuse the default. [Dkt. No. 14, pp. 1-5]. 6 The Court does not agree. Appellate counsel’s failure to preserve an issue for appeal can 7 establish cause to excuse a procedural default if the failure was “so ineffective as to 8 violate the Federal Constitution.” Edwards v. Carpenter, 529 U.S. 446, 451 (20 0 0 ); see 9 also Martinez v. Ryan, 566 U.S. 1, 11 (20 12) (“[A]n attorney’s errors during an appeal on 10 direct review m ay provide cause to excuse procedural default; for if the attorney 11 appointed by the State to pursue the direct appeal is ineffective, the prisoner has been 12 denied fair process and the opportunity to com ply with the State’s procedures and 13 obtain an adjudication on the m erits of his claim s.”). Declining to raise a claim on 14 appeal, however, “is not deficient perform ance unless that claim was plainly stronger 15 than those [claim s] presented to the appellate court.” Davila v. Davis, 137 S.Ct. 20 58, 16 20 67 (20 17) (em phasis added). Appellate counsel is not constitutionally obligated to 17 raise every nonfrivolous argum ent on appeal, only those m ost likely to succeed. Sm ith 18 v. Murray, 477 U.S. 527, 536 (1986). 19 Petitioner argues that he asked counsel to raise a claim regarding the denial of his 20 pre-trial severance m otion on appeal, but that counsel refused. [Dkt. No. 14, p. 4]. Even 21 if true, however, Petitioner has failed to demonstrate that counsel was constitutionally 22 deficient in failing to raise this claim . First, any argum ent that the denial of the 23 severance m otion was im proper under state law is not cognizable on federal habeas 24 review. See Estelle v. McGuire, 50 2 U.S. 62, 67 (1991) (“[F]ederal habeas corpus relief 6 1 does not lie for errors of state law.” (internal quotations om itted)). Second, “[t]he 2 Suprem e Court has never held that a trial court’s failure to provide separate trials on 3 different charges im plicates a defendant’s right to due process.” Collins v. Uribe, 564 F. 4 App’x 343 (9th Cir. 20 14); see also Martinez v. Yates, 585 F. App’x 460 , 460 -61 (9th Cir. 5 20 14) (finding that trial court’s failure to sever for trial crim inal charges related to two 6 separate incidents not grounds for federal habeas relief as “[t]here is no clearly 7 established Suprem e Court precedent dictating when a trial in state court m ust be 8 severed”). As such, Petitioner has not dem onstrated that this claim was “plainly 9 stronger” than the claim that appellate counsel chose to raise on appeal.5 Davila, 137 10 S.Ct. at 20 67. 11 Moreover, before Petitioner can argue in federal court that appellate counsel’s 12 failure to raise the issue on appeal is cause for excusing the procedural default, he m ust 13 allege in state court that his appellate counsel was ineffective for failing to raise the issue 14 and exhaust that claim . Carpenter, 529 U.S. at 451– 52; Murray v. Carrier, 477 U.S. 478, 15 488-89 (1986). Petitioner has not done so here. Although he consistently explained 16 that counsel was the reason for his failure to raise the severance claim on appeal, he 17 never claim ed that appellate counsel was constitutionally ineffective for failing to do so 18 in his state habeas petition in the California Suprem e Court. See [Dkt. No. 13-14, 19 LD 14]. Because Petitioner never articulated a separate claim of ineffective assistance of 20 counsel by citing Strickland v. Washington, 466 U.S. 668 (1984), or other authority 21 regarding a constitutional claim of ineffective assistance of appellate counsel, it rem ains 22 23 24 5 On appeal, Petitioner’s counsel raised a claim that Petitioner’s due process rights had been violated because there was insufficient evidence establishing the crim inal street gang enhancem ent. [Dkt. Nos. 13-2, LD 2; 13-6, LD 6]. 7 1 unexhausted. See Gray v. Netherland, 518 U.S. at 162– 63 (1996) (holding that proper 2 exhaustion of a claim requires both the presentation of operative facts and the federal 3 legal theory on which it is based). 4 Consequently, it cannot be used to overcom e the procedural default of 5 Petitioner’s severance claim . See Tacho v. Martinez, 862 F.2d 1376, 1381 (9th Cir. 1988) 6 (holding court was prohibited from considering ineffective assistance of appellate 7 counsel as cause for default because that claim had not been raised and exhausted 8 separately in state court); see also Rosas v. Garcia, 20 12 WL 1378644, at *5 (C.D. Cal. 9 Feb.14, 20 12) (holding that petitioner could not rely on unexhausted claim s of 10 ineffective assistance of trial and appellate counsel to establish cause for his procedural 11 default); Madrigal v. Macom ber, 20 16 WL 740 4723, at *17 & n.13 (E.D. Cal. Dec. 21, 12 20 16) (finding no cause for default where petitioner failed to present an “independent 13 ineffective assistance of appellate counsel claim to the state courts” despite petitioner's 14 statem ent in state petition that he had not raised the claim previously because of “the 15 failure of appellate counsel”). 16 Accordingly, because Petitioner has not dem onstrated cause for the default of his 17 severance claim in state court, the Court need not reach the issue of whether Petitioner 18 has dem onstrated prejudice. See Hiivala v. Wood, 195 F.3d 10 98, 110 5 n.6 (9th Cir. 19 1999) (failure to dem onstrate cause elim inates need to consider prejudice); Thom as v. 20 Lewis, 945 F.2d 1119, 1123 n.10 (9th Cir. 1991) (sam e). 21 22 2. Fu n d am e n tal Mis carriage o f Ju s tice A federal court m ay consider a defaulted claim on the m erits if the petitioner “can 23 dem onstrate a fundam ental m iscarriage of justice by establishing that under the 24 probative evidence he has a colorable claim of factual innocence.” Cooper v. Neven, 641 8 1 F.3d 322, 327 (9th Cir. 20 11) (internal quotation m arks and brackets om itted); see also 2 Bousley v. United States, 523 U.S. 614, 623-24 (1998) (holding defendant m ust establish 3 “factual innocence, not m ere legal insufficien cy” to overcom e procedural default). Here, 4 however, Petitioner raises no credible claim of factual innocence. Nor do the facts of his 5 underlying severance claim —even were it constitutional error—suggest that he is 6 factually innocent of the crim es for which he was convicted. Petitioner states only that 7 he wanted to testify as to one incident and not the other. [Dkt. No. 1, p. 18]. Therefore, 8 Petitioner has not dem onstrated any exceptions to the procedural default of his claim 9 pursuant to Dixon. 10 IV. 11 CON CLU SION For these reasons, the Motion to Dism iss is granted, the Petition is denied, and 12 the action is dism issed with prejudice. J udgem ent shall be entered accordingly. 13 V. CERTIFICATE OF APPEALABILITY 14 The Court finds that Petitioner has not shown that “jurists of reason would find it 15 debatable whether:” (1) “the petition states a valid claim of the denial of a constitutional 16 right;” and (2) “the district court was correct in its procedural ruling.” See Slack v. 17 McDaniel, 529 U.S. 473, 484 (20 0 0 ). Thus, Petitioner is not entitled to a certificate of 18 appealability. 19 20 21 Dated: March 20 , 20 19 _ _ _ _ / s/ Autum n D. Spaeth _ _ _ _ _ _ _ _ _ HONORABLE AUTUMN D. SPAETH United States Magistrate J udge 22 23 24 9
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