Opinion
Case No. 05-CV-0877-JM (JMA).
September 27, 2005
REPORT AND RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE
I. Introduction and Procedural Background
Petitioner is a state prisoner serving a sentence of 41 years. (Petition at 1.) He was convicted on April 15, 2002 of assault with a semiautomatic firearm (Cal. P.C. § 245, subd. [b]); discharging a firearm at an occupied vehicle (Cal. P.C. § 246); corporal injury to a spouse (Cal. P.C. § 273.5, subd. [a]); making a criminal threat (Cal. P.C. § 422); two counts of possession of a controlled substance while armed with a loaded firearm (Cal. H S Code § 11370.1, subd. [a]); two counts of possession for sale of a controlled substance (Cal. H S Code §§ 11351, 11378); possession of a firearm by a felon (Cal. P.C. § 12021, subd. [a] [1]); and resisting an officer (Cal. P.C. § 148, subd. [a] [1]). (Lodgment No. 2 at 1-2.)
Petitioner appealed to the California Court of Appeal, Fourth Appellate District, Division One, but the appellate court affirmed Petitioner's conviction on August 7, 2003. (Lodgment No. 2.) Petitioner did not petition for review in the California Supreme Court. Id.
Petitioner filed a Petition for Writ of Habeas Corpus with the California Supreme Court. On April 13, 2005, the court denied that petition without comment, citing to In re Waltreus, 62 Gal. 2d 218 (1965). (Lodgment No. 4.)
On April 25, 2005, Petitioner filed the current Petition for Writ of Habeas Corpus, claiming that: (1) the trial court's exclusion of expert testimony evidence violated his rights to a fair trial and to due process; (2) evidence of his voluntary intoxication was admissible in the trial court on the issue of whether he actually formed a specific intent or possessed the mental state required in Count nos. 2 and 4-10 of the amended information; and (3) the trial court's denial of psychologist expert testimony on the effects of Petitioner's use of methamphetamine violated Petitioner's right to due process and to a fair trial. (Pet. at 6-8.)
On August 26, 2005, Respondent filed a Motion to Dismiss. Petitioner did not file an Opposition.
II. Respondent's Motion to Dismiss
Respondent argues that the three claims Petitioner failed to raise in the California Supreme Court on direct review and which that court later rejected on habeas review with a citation toIn re Waltreus, 62 Cal. 2d 218 (1965), are procedurally defaulted under Forrest v. Vasquez, 75 F.3d 562 (9th Cir. 1996). TheWaltreus rule provides that "in the absence of strong justification, any issue that was actually raised and rejected on appeal cannot be renewed in a petition for a writ of habeas corpus." In re Harris, 855 P. 2d 391, 398 (Cal. 1993); (interpreting Waltreus). The Ninth Circuit has ruled that the invocation of the Waltreus rule by a state court does not bar federal review. See Calderon v. United States Dist. Court, 96 F.3d 1126, 1131 (9th Cir. 1996); Hill v. Roe, 321 F.3d 787 (9th Cir. 2003). In Ylst v. Nunnemaker, 501 U.S. 797 (1991), the Supreme Court explained that Waltreus stands for the "ordinary state rule barring relitigation of claims raised on direct appeal," and that a Waltreus citation is neither a ruling on the merits nor a denial on procedural grounds. Id. at 806. A federal court must "look through" a denial based on Waltreus to the last explained state court decision to determine whether the basis of the decision was procedural default. See id.
In Forrest, the Ninth Circuit looked through the California Supreme Court's denial based on Waltreus to the previous decision, which was the California Supreme Court's order denying Forrest's application for relief from default. The Ninth Circuit considered that decision to be "an order that was clearly based on Forrest's failure to comply with a procedural rule." Forrest at 564. The Ninth Circuit found that Rule 28(b) of the California Rules of Court was an "adequate and independent state procedural ground barring federal review of Forrest's constitutional claim."Id.
The procedural rule to which the Ninth Circuit referred inForrest was Rule 28 (b) of the California Rules of Court, which provides that a petition for review to the California Supreme Court must be filed within 10 days after the Court of Appeal decision becomes final. Forrest at 564.
Respondent argues that the current case is "on all fours" withForrest. (Resp.'s Motion to Dismiss at 3.) However, inForrest, when the Ninth Circuit "looked through" the California Supreme Court's denial based on Waltreus, it found the California Supreme Court's denial of Forrest's request for relief due to his failure to timely file a petition for review.Forrest at 564; see Ylst at 806. It was this denial of relief that served as the basis for the Ninth Circuit's ruling that Forrest had procedurally defaulted. Forrest at 564. In the current case, when this Court "looks through" the California Supreme Court's denial based on Waltreus, it finds the California Court of Appeal's decision denying Petitioner's claims on the merits. (Lodgment No. 2.)
Other District Courts have ruled that this is a crucial difference, and have found that cases such as the current one are distinguishable from Forrest because there is no order finding that the claims were defaulted on direct appeal. See Davis v. Butler, 2005 WL 1490283, *7 (E.D. Cal., June 17, 2005) ("This court is able to look through the Superior Court opinion [denying habeas petition, citing Waltreus] to the reasoned opinion of the California Court of Appeal denying these claims on the merits."); Keola v. Knowles, 2005 WL 1489917, *4 (E.D. Cal., June 20, 2005) (looking through California Supreme Court's order denying habeas petition based on Waltreus to reasoned opinion of Court of Appeal denying claims on the merits); Morganti v. Pliler, 1998 WL 575093, *2 (N.D. Cal., July 13, 1998) ("In petitioner's case, by contrast, the last clear or explained state court decision is that of the California Court of Appeal's opinion . . . affirming petitioner's conviction. That opinion rejected petitioner's seven claims on the merits and did not invoke an independent and adequate state procedural ground to reject any of them."); andBooker v. Henry, 1998 WL 328618, *2 (N.D. Cal., June 15, 1998) (looking through denial based on Waltreus to California Court of Appeal's decision in which court rejected petitioner's claim on the merits and did not invoke an independent and adequate state ground barring federal review).
This Court agrees with the reasoning of the Northern and Eastern Districts of California, and finds that since the last explained decision preceding the California Supreme Court's denial based on Waltreus was a decision on the merits, Petitioner has not procedurally defaulted his claims. Accordingly, this Court recommends that Respondent's Motion to Dismiss be DENIED.
III. Recommendation
After a thorough review of the record in this matter, the undersigned Magistrate Judge finds that Respondent's Motion to Dismiss should be DENIED.
This Report and Recommendation is submitted to the Honorable Jeffrey T. Miller, United States District Judge assigned to this case, pursuant to the provisions of 28 U.S.C. § 636(b)(1).
IT IS ORDERED that no later than October 21, 2005, any party may file written objections with the Court and serve a copy on all parties. The document should be captioned "Objections to Report and Recommendation."
IT IS FURTHER ORDERED that any reply to the objections shall be served and filed no later than November 4, 2005. The parties are advised that failure to file objections within the specified time may waive the right to raise those objections on appeal of the Court's order. See Turner v. Duncan, 158 F.3d 449, 455 (9th Cir. 1998); Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991).
IT IS SO ORDERED.