Opinion
No. CV 01-10751-PA (PLA)
05-01-2012
DONNA KAY LEE, Petitioner, v. GWENDOLYN MITCHELL, Warden, Respondent.
POST-REMAND REPORT AND RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE
This Post-Remand Report and Recommendation is submitted to the Honorable Percy Anderson, United States District Judge, pursuant to 28 U.S.C. § 636 and General Order 194 of the United States District Court for the Central District of California. For the reasons discussed below, the Magistrate Judge recommends that petitioner's Grounds 5-11 of the Second Amended Petition and her Supplemental Grounds 1-4 once again be dismissed as procedurally barred. / / / / / /
I.
SUMMARY OF PROCEEDINGS
A. PROCEEDINGS PRIOR TO PETITIONER'S APPEAL TO NINTH CIRCUIT
On March 23, 1998, a Los Angeles County Superior Court jury convicted petitioner of two counts of first degree murder. The jury also found true the allegations that petitioner personally used a knife in committing both murders, and found true the special circumstances of multiple murders, lying in wait, and murder for financial gain. Cal. Penal Code §§ 12022(b), 190.2(a)(3), 190.2(a)(15), 190.2(a)(1). (See respondent's Motion to Dismiss ("Motion"), Ex. A). Petitioner was sentenced to life in state prison without the possibility of parole, plus an additional two years for her use of a knife. (See Motion, Ex. B).
In her Opening Brief on direct appeal to the California Court of Appeal, filed on June 10, 1999 (see Appellant's Ninth Circuit Opening Brief ("Opening Brief"), at 33), petitioner raised four claims: (1) her right to present a defense was violated when the trial court excluded evidence of her sexual relationship with her co-defendant, along with expert testimony that she suffered from battered women's syndrome ("BWS"); (2) the trial court's refusal to sever petitioner's trial from that of her co-defendant resulted in a joint trial with mutually antagonistic defenses and the exclusion of evidence critical to petitioner's defense; (3) the trial court erred in refusing to instruct the jury that provocation could reduce the degree of the murders; and (4) the lying-in-wait special circumstance allegation was unconstitutionally vague and overbroad. On August 28, 2000, in an unpublished decision, the California Court of Appeal affirmed the conviction. (See Motion, Ex. C).
Petitioner filed a petition for review in the California Supreme Court, raising the same grounds she had raised in the Court of Appeal. (See Motion, Ex. D). On December 13, 2000, the California Supreme Court denied review. (See Motion, Ex. E).
Petitioner filed her original federal habeas petition ("Petition") herein on December 13, 2001, raising fourteen claims. On February 15, 2002, respondent filed a Motion to Dismiss contending that the Petition must be dismissed as unexhausted. In response, on March 20, 2002, petitioner filed a First Amended Petition ("FAP"), raising only the four claims she had raised in the California Supreme Court on direct review. Respondent filed an Answer and Return to the FAP on July 5, 2002. Petitioner filed a Traverse thereto on September 3, 2002.
On January 13, 2003, petitioner filed a "Motion to Stay the Procedures with Leave of the Court to Exhaust State Remedies." The Court initially denied petitioner's Motion to Stay, but after consideration of subsequent case law, the Court granted petitioner's renewed request on December 8, 2003.
Meanwhile, petitioner filed a petition for writ of habeas corpus in the Los Angeles County Superior Court on November 3, 2003. That petition was denied on December 2, 2003, in an opinion finding that petitioner had failed to explain or justify her delay in seeking habeas relief and citing the following cases: In re Harris, 5 Cal. 4th 813, 829 (1993); In re Dixon, 41 Cal. 2d 756 (1953); In re Clark, 5 Cal. 4th 750, 779 (1993); People v. Karis, 46 Cal. 3d 612, 656 (1988); and In re Terry, 4 Cal. 3d 911, 926 (1971). (See Return to Second Amended Petition ("Return to SAP"), Ex. A). Petitioner then filed a habeas petition in the California Court of Appeal on December 15, 2003, raising the same grounds. That petition was denied on January 8, 2004, as follows:
Contentions raised and rejected on appeal may not be renewed in petitions for writ relief. (See In re Terry (1971) 4 Cal. 3d 911, 927; In re Waltreus (1965) 62 Cal. 2d 218, 225). Further, with regard to any issues not raised on appeal, petitioner has not stated facts sufficient to support relief (In re Clark (1993) 5 Cal. 4th 750, 763-787; In re Swain (1949) 34 Cal. 2d 300, 303-304) and has not submitted a record adequate for review (Sherwood v. Superior Court (1979) 24 Cal. 3d 183, 186-187).(See Return to SAP, Ex. B).
On January 26, 2004, petitioner filed a petition for writ of habeas corpus in the California Supreme Court raising the following eleven claims: (1) petitioner's due process rights were violated because she was "never properly placed under arrest nor mirandized [sic]"; (2) petitioner's due process rights were violated by the systematic exclusion of "all female jurors"; (3) petitioner's due process rights and right to an impartial jury were violated when a juror committed misconduct by exclaiming, "What . . . he killed his mother?"; (4) petitioner's due process rights were violated when the trial court excluded evidence relevant to petitioner's defense as too prejudicial to her co- defendant and because the admission of her co-defendant's "almost confession spilled over onto petitioner and denied petitioner a defense"; (5) petitioner's due process rights were violated because her initial trial counsel worked from the same office as that of her co-defendant; (6) petitioner's due process rights were violated when she was forced to testify in order to allow petitioner to present expert testimony on BWS; (7) petitioner's due process rights were violated when she was punished more harshly after she rejected various plea offers and chose to proceed to trial; (8) the prosecutor committed misconduct by introducing evidence of aiding and abetting when petitioner was not charged as an aider and abettor; (9) petitioner was sexually assaulted by a sheriff's deputy in a holding cell; (10) petitioner's rights to a fair trial and an impartial jury were violated when a juror "nodded off several times during trial"; and (11) petitioner's right to an impartial jury was violated when two jurors, on separate occasions, were questioned in a public restroom about which case they were sitting on. (See Return to SAP, Ex. C). The petition was denied on December 1, 2004, with the following statement: "Petition for writ of habeas corpus is DENIED. (See In re Waltreus (1965) 62 Cal. 2d 218; In re Dixon (1953) 41 Cal. 2d 756; In re Seaton (2004) 34 Cal.4th 193)." (See Return to SAP, Ex. D).
On January 3, 2005, petitioner filed a Motion to Amend herein along with a proposed Second Amended Petition ("SAP"). In the SAP, petitioner raised the same four grounds she had raised in her FAP herein as her Grounds 1 to 4 and, as her Grounds 5 to 11, the correspondingly-numbered claims she had raised in her habeas petition to the California Supreme Court. The Court granted petitioner's Motion to Amend. On June 6, 2005, respondent filed a Return to Second Amended Petition ("Return to SAP") accompanied by a supporting Memorandum of Points and Authorities ("Return to SAP, Mem."), contending, inter alia, that petitioner's formerly unexhausted claims are procedurally barred. Respondent also addressed petitioner's claims on the merits. (Return to SAP, Mem. at 3-6).
On September 8, 2005, petitioner filed a Traverse to Return to Second Amended Petition ("Trav. to SAP"). At the same time, petitioner filed a Motion to Stay Traverse to Return to Second Amended Petition in which she sought leave to supplement the SAP with four additional grounds ("Supplemental" or "Sup. Grounds"). The four Supplemental Grounds correspond to the first four claims that petitioner had raised in her habeas petition to the California Supreme Court. (See "Petitioner Makes this Request to Add Four Exhausted Grounds to her Second Amended Petition"). Respondent filed an opposition thereto on October 12, 2005, contending that, while three of the proposed supplemental grounds are substantially similar to grounds raised in the Petition, petitioner's Supplemental Ground 2 had never been brought in a federal habeas petition and, consequently, was time-barred. (See Opp. to Motion to Stay at 3-4). Petitioner filed a response to respondent's opposition on November 2, 2005. On November 3, 2005, the Court granted petitioner's request to amend her SAP to add the four Supplemental Grounds.
On April 4, 2006, respondent filed a Supplemental Return to Second Amended Petition ("Sup. Return to SAP") accompanied by a supporting Memorandum of Points and Authorities, contending, inter alia, that petitioner's supplemental claims are procedurally defaulted and that her Supplemental Ground 2 is time-barred. Respondent also addressed the supplemental claims on the merits. Petitioner filed a Traverse thereto ("Trav. to Sup. Return") on June 16, 2006.
On June 19, 2007, the Court issued a Report and Recommendation recommending that petitioner's Grounds 1 through 4 of the SAP be denied on the merits and that petitioner's Grounds 5-11 of the SAP and her Supplemental Grounds 1-4 be dismissed as procedurally barred. After the Court responded to petitioner's Objections to Report and Recommendation, in an Order issued on July 26, 2007, the District Judge adopted this Court's recommendation in its Final Report and Recommendation ("R&R") that judgment be entered denying the Petition and dismissing the action with prejudice.
B. PROCEEDINGS IN CONNECTION WITH PETITIONER'S APPEAL TO THE NINTH CIRCUIT
Petitioner's Request for a Certificate of Appealability was granted by the District Court only with respect to the finding that Grounds 5-11 of the SAP and Supplemental Grounds 1-4 are procedurally defaulted. Petitioner appealed the judgment to the Ninth Circuit. The Ninth Circuit ordered that counsel be appointed and requested that, "if new counsel identifies uncertified issues that should be raised on appeal, counsel shall include them in the opening brief." (Ninth Cir. Order of October 17, 2008). Petitioner's counsel submitted an opening brief ("Opening Brief") on June 22, 2009, which raised the following issues:
The Court notes that, in her Opening Brief, after arguing that the relevant claims are not procedurally barred, petitioner then incorrectly asserted that: "Given that the District Court also denied [petitioner's] claims on the merits after finding them procedurally barred, this court should review the following uncertified claims on the merits as well." (Opening Brief at 39). In its R&R, the Court found that Grounds 5-11 of the SAP and Supplemental Grounds 1-4 were procedurally defaulted (R&R at 16-21), did not address any of those claims on the merits, and recommended that only petitioner's Grounds 1-4 of the SAP be denied on the merits (R&R at 16-38).
(1) whether Grounds 5-11 of the SAP and Supplemental Grounds 1-4 are procedural defaulted when the default rests on "state court rules that have not been consistently applied and are not independent of federal law" (Opening Brief at 1);
(2) whether petitioner was denied her right to a fair trial when the trial court refused to sever her case from that of her co-defendant (id. at 2);
(3) whether petitioner's right "to put on an adequate defense and her right to a fair trial" were violated when she was prevented from presenting evidence on BWS during the guilt phase of the trial (id.); and
(4) whether petitioner was denied her right to a fair trial when one of the jurors repeatedly fell asleep during the trial (id.).
Respondent submitted an answering brief on December 21, 2009, addressing only the procedural default issue that had been certified by the District Court ("Respondent's Brief on Appeal"). Petitioner submitted a reply thereto on February 5, 2010. The Ninth Circuit then ordered respondent to file a supplemental brief responding to the three uncertified issues raised in petitioner's Opening Brief. Respondent submitted a supplemental brief on November 17, 2010, and petitioner filed a supplemental brief in reply on November 24, 2010.
On December 15, 2010, the Ninth Circuit filed an unpublished Memorandum Disposition ("Memorandum"), affirming in part, and reversing and remanding in part. The Ninth Circuit held:
(1) "[t]he California Court of Appeal's conclusion that [petitioner's] severance motion was properly denied by the trial court was not objectively unreasonable," and petitioner failed to point to "any specific trial rights that were violated as a result of the joint trial" (Memorandum at 2);
(2) "[t]he California Court of Appeal's determination that the trial court's exclusion of battered women's syndrome evidence under California Evidence Code § 352 did not violate [petitioner's] due process rights was not objectively unreasonable," and the "Court of Appeal did not act objectively unreasonably by concluding that
[petitioner] was not deprived of the opportunity to present a defense" (id. at 2-3); and
(3) in concluding that petitioner's Grounds 5-11 in the SAP and Supplemental Grounds 1-4 were procedurally barred, the District Court "relied on a report and recommendation that erroneously concluded that the Ninth Circuit had found the Dixon rule to be an independent and adequate state law ground," and "[o]n appeal, [petitioner] presented evidence challenging the independence and adequacy of In re Dixon at the time of [petitioner's] procedural default" (id. at 3).
The Ninth Circuit then remanded the case to "permit [respondent] to submit evidence to the contrary, and for consideration by the district court in the first instance." The Ninth Circuit did not address the sleeping juror claim. (Memorandum at 3-4).
C. PROCEEDINGS POST-REMAND
Following receipt of the mandate filed on January 6, 2011, the Court ordered respondent to respond to petitioner's "evidence challenging the independence and adequacy of In re Dixon at the time of [petitioner's] procedural default;" petitioner was ordered to file a reply to that response. After numerous extensions of time, respondent filed its Response Re Independence and Adequacy of In re Dixon ("Response") on May 9, 2011, and petitioner filed her Reply to Response Re Independence and Adequacy of In re Dixon ("Reply") on August 5, 2011. Respondent also filed a Notice of Lodging ("Lodging re Dixon") with the Court, consisting of the evidence that petitioner first filed with the Ninth Circuit Court of Appeal on June 22, 2009 ("Lodgment 1") and "Minutes of the California Supreme Court reflecting habeas corpus petition denials issued between August 3, 1998, and June 10, 2000" ("Lodgment 2").
Thus, the matter is deemed submitted and ready for a decision. / / / / / /
II.
PETITIONER'S CONTENTIONS
A detailed Statement of Facts summarizing the evidence presented during petitioner's trial was contained in the Court's R&R and is included herein by reference.
1. The exclusion of evidence of petitioner's sexual relationship with her co-defendant, as well as expert testimony that she was a battered woman, violated her right to present a defense. (SAP ¶ 10(a)).
2. Petitioner's rights to due process and a fair trial were violated when the trial court refused to sever petitioner's trial from that of her co-defendant. (SAP ¶ 10(b)).
3. The trial court's refusal to instruct the jury that provocation could reduce the degree of murder was prejudicial error. (SAP ¶ 10(c)).
4. California's lying-in-wait special circumstance statute is unconstitutionally vague and overbroad. (SAP ¶ 10(d)).
5. Petitioner's due process rights were violated because her attorney prior to trial had a conflict of interest arising from that counsel's prior representation of her co-defendant. (SAP at 6a; Trav. to SAP at 4-6).
6. Petitioner's due process rights were violated when she was "forced to testify" because her counsel had an "agreement" with the trial judge that the judge would permit an expert witness on BWS to testify only if petitioner had testified. (SAP at 6a; Trav. to SAP at 6-8).
7. Petitioner's due process rights were violated because she was sentenced to life without the possibility of parole after not accepting an offered plea deal. (SAP at 6a; Trav. to SAP at 8-9).
8. The prosecutor committed misconduct by introducing evidence, and arguing that petitioner was guilty, of "aiding and abetting" when petitioner was not charged under this theory. Petitioner contends that she was "found guilty of an uncharged act." (SAP at 6a; Trav. to SAP at 9-10).
9. Petitioner's "right to be free of cruel and unusual punishment were [sic] violated when she was sexually assaulted by a deputy sheriff at the court house" "minutes" after the verdict. (SAP at 6a; Trav. to SAP at 10-12). Petitioner asserts that "an in-camera proceeding was held with the judge" the following day. (SAP at 6a). "[T]he judge asked [her] to be alone with this officer again, so that they could tape us together." (Trav. to SAP at 10). Petitioner also asserts that "two interviews" were conducted about her contacts with the officer prior to her sentencing. (Trav. to SAP at 11). Petitioner states that "she believes the jury was not aware of the court hearing about what happened." (Trav. to SAP at 11-12).
10. One of the jurors "nodded off several times during trial," violating her right to due process and a fair trial. Petitioner asserts that it was brought to the attention of the trial judge, who questioned the juror about her health and allowed the juror to retrieve some medication from her car. (SAP at 6a; Trav. to SAP at 12-13).
11. Petitioner claims that "jury misconduct" occurred when "two jurors were accosted in the restroom" and asked which trial they were working on. Petitioner claims that the incidents placed "additional pressure on them to perform," although the jurors reported that they did not answer the questions. Petitioner contends this violated her right to a trial by an impartial jury. (SAP at 6a; Trav. to SAP at 13-14).
Sup. Ground 1. Petitioner's federal due process rights and her right to remain silent were violated when petitioner "was never properly placed under arrest" and was not advised of her Miranda rights. (SAP Sup. at 3; Trav. to SAP Sup. at 4-6).
Sup. Ground 2. The prosecution systematically excluded "all female jurors," violating petitioner's federal due process rights and her right to an impartial jury. (SAP Sup. at 4; Trav. to SAP Sup. at 6-7).
Sup. Ground 3. An alternate juror committed misconduct by "tainting" the jury with an exclamation. (SAP Sup. at 5; Trav. to SAP Sup. at 8-9).
Sup. Ground 4. Petitioner's federal due process rights were violated by the exclusion of evidence relevant to petitioner's defense, which was found to be unduly prejudicial to her co-defendant, and by the introduction at the joint trial of the "almost confession" of her co-defendant. (SAP Sup. at 6; Trav. to SAP Sup. at 9-11).
III.
DISCUSSION
A. SCOPE OF THE MANDATE
For the reasons explained below, the Court finds that the scope of the mandate is as follows: Whether In re Dixon was an adequate and independent state law basis on which to find that petitioner's Grounds 5-11 of the SAP and Supplemental Grounds 1-4 are procedurally barred.
In her appeal to the Ninth Circuit, petitioner raised four issues: (1) whether Grounds 5-11 of the SAP and Supplemental Grounds 1-4 are procedurally defaulted; (2) whether the trial court's refusal to sever the trial deprived her of a fair trial; (3) whether her right to present a defense was violated concerning the BWS evidence; and (4) whether her right to a fair trial was violated because a juror fell asleep. Of these, only Issue (1) was certified on appeal, and Issues (2), (3), and (4) fell outside the Certificate of Appealability.
In its remand order, with respect to Issue (1) concerning the procedural default bar, the Ninth Circuit stated that, "[o]n appeal, [petitioner] presented evidence challenging the independence and adequacy of In re Dixon at the time of [petitioner's] procedural default," and remanded with instructions to "permit [respondent] to submit evidence to the contrary, and for consideration by the district court in the first instance." (Memorandum at 3-4).
The Ninth Circuit decided petitioner's Issue (2) and Issue (3) on the merits. The Ninth Circuit did not reach the merits of Issue (4) regarding the sleeping juror. However, as discussed herein, because this Court previously found that Issue (4) -- which corresponds to Ground 10 of the SAP -- was procedurally barred, Issue (4) falls within the scope of the mandate concerning the dismissal of the procedurally barred claims.
Issue (2) corresponds to Ground 2 of the SAP, while Issue (3) corresponds in part to Ground 1 of the SAP. The Ninth Circuit in its mandate affirmed the judgment of the District Court in denying Grounds 1 and 2 of the SAP on the merits.
Accordingly, the threshold question before the Court is whether Grounds 5-11 of the SAP and Supplemental Grounds 1-4 are procedurally barred. Because, as set forth below, the Court finds that California's Dixon rule is an independent and adequate state procedural rule, and continues to recommend that petitioner's Grounds 5-11 of the SAP and Supplemental Grounds 1-4 be dismissed as procedurally barred, the Court need not reach the merits of Issue (4), or any of the barred claims.
B. FEDERAL LAW ON PROCEDURAL DEFAULT
In order for a claim to be procedurally defaulted for federal habeas corpus purposes, the opinion of the last state court rendering a judgment must "clearly and expressly" state that its judgment rests on a state procedural bar. See Harris v. Reed, 489 U.S. 255, 263, 109 S. Ct. 1038, 103 L. Ed. 2d 308 (1989). Further, "the application of the state procedural rule must provide 'an adequate and independent state law basis' on which the state court can deny relief." Park v. California, 202 F.3d 1146, 1151 (9th Cir.), cert. denied, 531 U.S. 918 (2000), quoting Coleman v. Thompson, 501 U.S. 722, 729-30, 111 S. Ct. 2546, 115 L. Ed. 2d 640 (1991). "For a state procedural rule to be 'independent,' the state law basis for the decision must not be interwoven with federal law." La Crosse v. Kernan, 244 F.3d 702, 704 (9th Cir. 2001); see Morales v. Calderon, 85 F.3d 1387, 1393 (9th Cir. 1996). In order for a procedural bar to be adequate, state courts must employ a "firmly established and regularly followed state practice." Ford v. Georgia, 498 U.S. 411, 423-24, 111 S. Ct. 850, 112 L. Ed. 2d 935 (1991).
In determining whether a rule is adequate to bar federal review, courts utilize a burden-shifting analysis. In Bennett v. Mueller, 322 F.3d 573, 585-86 (9th Cir. 2003) (en banc), the Ninth Circuit held that, "once the state has adequately pled the existence of an independent and adequate state procedural ground as an affirmative defense, the burden to place that defense in issue shifts to the petitioner." The Ninth Circuit observed that a petitioner could satisfy this burden "by asserting specific factual allegations that demonstrate the inadequacy of the state procedure, including citation to authority demonstrating inconsistent application of the rule." Id. Once the petitioner has placed a procedural rule in issue, "the ultimate burden of proving the adequacy of the [rule] is upon the [s]tate." See id. at 585-86.
If a state procedural ground is found to be independent and adequate, federal habeas review of the claim is barred unless petitioner can demonstrate cause for her procedural default and actual prejudice as a result of the alleged violation of federal law. See Coleman, 501 U.S. at 750; Smith v. Baldwin, 510 F.3d 1127, 1146 (9th Cir. 2007), cert. denied sub nom., Smith v. Mills, 555 U.S. 830 (2008); Bennett, 322 F.3d at 580; Park, 202 F.3d at 1150. To satisfy her burden of demonstrating "cause" for the procedural default, petitioner must show "that some objective factor external to the defense impeded counsel's efforts to comply with the State's procedural rule." Murray v. Carrier, 477 U.S. 478, 488, 106 S. Ct. 2639, 91 L. Ed. 2d 397 (1986).
The Supreme Court has recognized an exception to the requirement that petitioner demonstrate both "cause" and "prejudice," where petitioner can demonstrate that failure to consider the procedurally defaulted claims will result in a fundamental miscarriage of justice because she is actually innocent of the crimes of which she was convicted. See, e.g., Murray, 477 U.S. at 496; Noltie v. Peterson, 9 F.3d 802, 806 (9th Cir. 1993). In order to qualify for this "miscarriage of justice" exception, however, petitioner must "support [her] allegations of constitutional error with new reliable evidence -- whether it be exculpatory scientific evidence, trustworthy eyewitness accounts, or critical physical evidence -- that was not presented at trial." Schlup v. Delo, 513 U.S. 298, 324, 115 S. Ct. 851, 130 L. Ed. 2d 808 (1995) (recognizing that such evidence "is obviously unavailable in the vast majority of cases"). Further, to meet the requisite standard that a constitutional violation probably has resulted in the conviction of one who is actually innocent, "the petitioner must show that it is more likely than not that no reasonable juror would have convicted [her] in light of the new evidence." 513 U.S. at 327.
C. APPLICABILITY OF THE DIXON RULE
1. California's Dixon rule
At issue in this case is whether the procedural rule from In re Dixon bars federal review of petitioner's claims (i.e., Grounds 5-11 of the SAP and Supplemental Grounds 1-4). The Dixon rule is applied by California courts to bar claims "raised on habeas corpus if they should have been, but were not, raised on appeal." Seaton, 34 Cal. 4th at 201 n.4 (discussing the application of Waltreus, Dixon, and Harris). The bar is applied, with certain exceptions, when it is "apparent from the record as a whole that the matters of which petitioner complains were before the trial court." Dixon, 41 Cal. 2d at 762. The California Supreme Court in Dixon held that a petitioner "is not entitled in [a habeas] proceeding to a consideration of claims which are based upon his version of the conflicting evidence and which could have been, but were not, raised on appeal." Id. In a later proceeding, the California Supreme Court, in In re Robbins, 18 Cal.4th 770, 814 n.34, 77 Cal. Rptr. 2d 153, 959 P.2d 311 (1998), explained that:
When a petitioner attempts to avoid the bars of Dixon ... or Waltreus ... by relying upon an exhibit (in the form of a declaration or other information) from outside the appellate record, we nevertheless apply the bar if the exhibit contains nothing of substance not already in the appellate record.
2. Petitioner's claims to which the Dixon rule applies
Preliminarily, the Court must determine to which of petitioner's claims the Dixon rule applies.
As stated above, in order for a claim to be procedurally defaulted, the last state court to have considered the claim must "clearly and expressly" indicate that its judgment rests on a state procedural rule. See Harris, 489 U.S. at 263. Here, the California Supreme Court denied petitioner's habeas petition on December 1, 2004, with citations to Waltreus, Dixon and Seaton. The judgment of the District Court from which petitioner appealed adopted this Court's R&R, which found (R&R at 18):
The Court concurs with respondent that petitioner's formerly unexhausted claims (her Grounds 5-11 and her Sup. Grounds 1-4) were readily apparent from the appellate record. Further, petitioner did not raise any of these claims in her direct appeal. (Compare Motion, Ex. D, with Return to SAP, Ex. C). Therefore, these claims fall squarely within the scope of California's Dixon rule.
On appeal to the Ninth Circuit, petitioner argued that the California Supreme Court's order denying her state court habeas petition is ambiguous because it cited three cases, Waltreus, Dixon, and Seaton. Petitioner contended that the citation to "Waltreus is not on point" because none of the claims in her state court habeas petition had even been raised on appeal. (Opening Brief at 19-21). Further, petitioner argued that the Supreme Court's order is ambiguous because Seaton "stands for the proposition that a petitioner should not be able to raise on habeas appeal [sic] claims that could have been presented at trial." But petitioner did not argue which of her claims she contended are subject to Seaton but not Dixon. (Opening Brief at 22). Petitioner then argued that, while some of her claims could have been raised on direct appeal (but as petitioner concedes were not), the Dixon rule was not consistently applied at the relevant time. (Opening Brief at 22-23). In response to petitioner's Opening Brief, respondent argued to the Ninth Circuit that the Dixon rule applied to petitioner's claims previously found by this Court to be procedurally barred because they all "arose during [her] trial and were apparent from the record." (Respondent's Brief on Appeal at 14). In its Memorandum, the Ninth Circuit observed that the District Court had found that petitioner's claims were procedurally barred under the Dixon rule. As set forth above, the Ninth Circuit remanded the case to this Court only for a consideration of evidence of "the independence and adequacy of In re Dixon at the time of [petitioner's] procedural default." (Memorandum at 3).
Notwithstanding the limitations of the Ninth Circuit's remand, in its Response re Independence and Adequacy of In re Dixon, respondent now contends herein for the first time that the California Supreme Court's reference in its summary denial to Waltreus "pertained to only two of petitioner's fourteen state habeas grounds," and that all of petitioner's other claims were "barred by the Dixon rule." (Response at 3 n.2; see Return to SAP, Ex. D). Specifically, respondent asserts that the California Supreme Court's citation to Waltreus arguably could have been applicable to petitioner's Ground 6 (claiming that an agreement between counsel and the trial court forced petitioner to testify in order to permit expert testimony on BWS) because the Court of Appeal on direct appeal held that the trial court did not improperly exclude evidence pertaining to BWS. (Response at 9-10). Respondent also argues that the citation to Waltreus arguably was applicable to petitioner's Supplemental Ground 4 (claiming that petitioner's due process rights were violated by the exclusion of evidence prejudicial to her co-defendant and by the admission of a statement by her co-defendant) because the Court of Appeal held on direct appeal that the denial of petitioner's severance motion was not improper. (Response at 10). Additionally, respondent now asserts in two separate footnotes that, with respect to petitioner's Ground 9 and apparently with respect to her Supplemental Ground 1, "[t]o the extent that this claim was not apparent from the record, it would not be barred by Dixon," but that the California Court of Appeal rejected those claims on other procedural grounds when they were raised in petitioner's state court habeas petition to that court. (Response at 11 n.4, at 12 n.5). Finally, respondent asks this Court to "deem[] petitioner's Grounds 5, 7, 8, 10, and 11 and Supplemental Grounds 2, 3, and 4 to be procedurally defaulted" under Dixon. (Response at 22).
In its initial briefing herein, respondent previously contended that all of the claims raised in petitioner's SAP were "known to petitioner at the time of trial" and "were readily discoverable from the trial record." In addition, respondent previously contended that the Dixon rule "adheres when the claims arise during trial and are apparent from the record." (Return to SAP, Mem. at 5-6; Supplemental Return to SAP at 3).
It is not clear what respondent is asking this Court to find concerning Ground 6, Ground 9, and Supplemental Ground 1. Respondent asserts that Supplemental Ground 4 was arguably barred by Waltreus, but then asks the Court to find the claim to be procedurally barred by Dixon. It offers no explanation as to why it does not raise this same Dixon bar argument for Ground 6, the other claim that respondent asserts was arguably barred by Waltreus. In any event, as discussed herein, the Dixon bar is applicable to all of these claims.
In her Reply, petitioner now asserts that, as "acknowledged" by respondent, the "Dixon bar clearly does not apply to at least two of [petitioner's] claims dismissed on procedural grounds. As briefing herein is limited to the adequacy and independence of Dixon, the merits of those claims will be addressed in any further briefing this Court allows." (Reply at 6 n.4). The Court notes that petitioner fails to specify which of the claims she now asserts the Dixon bar does not apply to. Further, the Court notes that petitioner previously has addressed the merits of all of her claims raised in the SAP as well as her four Supplemental Grounds. (See Trav. to SAP and Trav. to Sup. Return).
As noted above, in its R&R, the Court concurred with respondent's previous contention that petitioner's Grounds 5-11 and her Supplemental Grounds 1-4 were readily apparent from the appellate record, and that the California Supreme Court's citation to Dixon in its rejection of petitioner's state court habeas petition was applicable to all of the claims that petitioner raised in her habeas petition to the California Supreme Court. (R&R at 17-18). As the Court herein interprets the Memorandum of the Ninth Circuit to have rejected petitioner's argument raised on appeal that the California Supreme Court's procedural bar was ambiguous and was not clearly and expressly stated with respect to these claims, the Court will address the four claims to which respondent now points as possibly falling outside the scope of the Dixon bar, i.e., Ground 6, Ground 9, Supplemental Ground 1 and Supplemental Ground 4.
The Dixon rule is applied by California courts when it is "apparent from the record as a whole that the matters of which petitioner complains were before the trial court." Dixon, 41 Cal. 2d at 762. In this case, petitioner's relevant habeas petition to the California Supreme Court raising the claims that the Court found to procedurally barred does not reference any evidence outside of the record on appeal. (See Return to SAP, Ex. C). Similarly, petitioner does not reference any evidence outside of the record on appeal in the corresponding claims raised herein. Examining the record as a whole at the time that petitioner's appeal was filed, the Court finds that all of the claims in question, petitioner's Grounds 5-11 and her Supplemental Grounds 1-4, were apparent from the record and could have been raised on appeal.
Specifically, with respect to the four claims to which respondent points, in Ground 6, petitioner claims that she was "forced" to testify because her counsel told her that her expert would not be permitted to testify about BWS if petitioner did not first testify. Petitioner also claims that her counsel did not advise her that she had the right to refuse to testify. (Trav. to SAP at 6-7). As set forth in the R&R, the trial record reflects that petitioner's counsel sought to introduce evidence of BWS prior to trial, but the trial court ruled that the evidence was not admissible. During petitioner's testimony, petitioner's trial counsel again sought to introduce evidence that petitioner was a battered woman to explain why petitioner met her co-defendant on the night of the murders, and why she stayed with him following the murders. The trial court found that the evidence was not relevant and ruled that "[i]f the theory of [petitioner's defense] is 'I had nothing to do with the killings of those two women,' what you're talking about is not relevant." Petitioner's trial counsel made subsequent attempts to introduce evidence of BWS to rebut evidence that petitioner was in control of the relationship, and to rebut evidence suggesting that her memory loss was selective, but these attempts also were rejected by the trial court. (See R&R at 22 (citing RT at 9458)). Therefore, the record reflects that the issue of the relevancy of expert testimony on BWS to petitioner's possible defense, as well as the potential admissibility of that testimony if petitioner testified, was apparent from the record. Petitioner has never cited any evidence outside of the record at the time of her direct appeal to support the existence of any agreement between the trial judge and her counsel. Nor does petitioner point to any evidence outside the record that she was not advised regarding her right not to testify. Accordingly, because it is clear that petitioner's Ground 6 is based on facts that were apparent from the record as a whole and that the matters of which petitioner complains in this claim were before the trial court, this claim could have been raised on direct appeal.
With respect to petitioner's Ground 9, the claim arises from an assault by a sheriff's deputy that petitioner alleges took place in the courthouse after the verdict was reached. Petitioner asserts that her counsel brought the assault to the attention of the trial court and a proceeding was held with the trial judge the day after the assault allegedly occurred. (SAP at 6a; Trav. to SAP at 10-12). Again, the record reflects that the matters of which petitioner complains in this claim were before the trial court and were known at the time of her direct appeal. To the extent that petitioner may be contending that the facts were not apparent in the record on appeal, petitioner has failed to point to any substantive evidence outside the record that she alleges is relevant to this claim. Moreover, petitioner has acknowledged that "she believes the jury was not aware of the court hearing about what happened." (Trav. at 11-12). Federal habeas relief only is available if petitioner contends that she is in custody in violation of the Constitution or laws or treaties of the United States. See 28 U.S.C. § 2254(a); see also Estelle v. McGuire, 502 U.S. 62, 67-68, 112 S. Ct. 475, 116 L. Ed. 2d 385 (1991) ("In conducting habeas review, a federal court is limited to deciding whether a conviction violated the Constitution, laws, or treaties of the United States."); Smith v. Phillips, 455 U.S. 209, 221, 102 S. Ct. 940, 71 L. Ed. 2d 78 (1982) ("A federally issued writ of habeas corpus, of course, reaches only convictions obtained in violation of some provision of the United States Constitution."). Here, as set forth in her SAP, petitioner's Ground 9 does not pertain to any aspect of her trial, the jury's verdict, or her sentence, and, as such, it does not even purport to state a claim that is cognizable on habeas review. Accordingly, to the extent that Ground 9 potentially could give rise to a federal habeas claim, the facts from which such a claim would arise were contained in the record at the time of petitioner's appeal and such a claim could have been raised on direct appeal.
With respect to petitioner's Supplemental Ground 1, petitioner's claim pertains to the circumstances surrounding her arrest. Once again, petitioner points to nothing outside the record on appeal in support of this claim, the facts of which were known to petitioner prior to the time of her direct appeal. Accordingly, facts from which this claim arose were contained in the record at the time of petitioner's appeal and the claim could have been raised on direct appeal.
With respect to petitioner's Supplemental Ground 4, petitioner claims that her federal due process rights were violated by the exclusion of evidence relevant to petitioner's defense and by the introduction at the joint trial of the "almost confession" of her co-defendant. (SAP Sup. at 6; Trav. to SAP Sup. at 9-11). Petitioner appears to argue that she was unable to cross examine her co-defendant because he did not testify and that she was prevented from introducing some evidence in her own defense because it was found to be too prejudicial to her co-defendant. (Trav. to SAP Sup. at 10-11). On direct appeal, petitioner argued that the trial court's denial of petitioner's repeated severance motions during trial resulted in the admission of highly prejudicial evidence against petitioner, that the two defendants had "mutually antagonistic defenses," and that evidence favorable to petitioner was excluded because it was found to be unduly prejudicial to petitioner's co-defendant. (Appellant's Opening Brief on direct appeal at 56-61). Once again, petitioner does not point to any evidence supporting this claim that was not contained within the record on appeal. Accordingly, because petitioner's Supplemental Ground 4 is based on facts that were apparent from the record as a whole at the time of petitioner's direct appeal, and the matters of which petitioner complains in this claim were before the trial court, this claim could have been raised on appeal.
Therefore, the Court once again finds that petitioner's Grounds 5-11 and her Supplemental Grounds 1-4 all fall within the scope of California's Dixon rule because all of her claims arise from facts that were apparent from the record as a whole and the "matters of which petitioner complains were before the trial court." Dixon, 41 Cal. 2d at 762. D. BENNETT'S BURDEN-SHIFTING SCHEME
The Court reject's respondent's unsupported assertions in its Response that the Supreme Court in Walker v. Martin, 131 S. Ct. 1120, 179 L. Ed. 2d 62 (2011), "implicitly overruled Bennett's three-step burden-shifting process," and that respondents no longer bear the ultimate burden of proving the adequacy of a procedural bar. (Response at 7). The Supreme Court's decision in Martin on February 23, 2011, did not address the burdens applicable to such an analysis. Further, the Supreme Court in Martin cited Bennett on the "independence" of California's timeliness rule without any indication of disapproval. See Martin, 131 S. Ct. at 1127 ("Martin does not here dispute that the time limitation is an 'independent' state ground." (citing Bennett, 322 F.3d at 582-83)). Finally, the Ninth Circuit has referenced Bennett's burden-shifting approach in a case decided after the Supreme Court's decision in Martin. See Ybarra v. McDaniel, 656 F.3d 984, 991 n.2 (9th Cir. 2011) (in an opinion filed Sept. 6, 2011, noting that, pursuant to Bennett, "the State has the ultimate burden of proving the adequacy of a procedural rule once a petitioner puts the rule at issue"); see also Corbray v. Miller-Stout, 2012 WL 605692, at *1 (9th Cir. Feb. 27, 2012) (citing Bennett for its "reasoning that '[o]nce the state has adequately pled the existence of an independent and adequate state procedural ground' the remaining issues shift to the petitioner") (now citable for its persuasive value pursuant to Ninth Circuit Rule 36-3); Foster v. Evans, 426 Fed. Appx. 523, 524 (9th Cir. 2011) (in an unpublished opinion filed April 11, 2011, finding that petitioner "did not meet his burden of 'asserting specific factual allegations that demonstrate the inadequacy of the state procedure.'" (citing Bennett)) (now citable for its persuasive value pursuant to Ninth Circuit Rule 36-3). This Court is bound by the Ninth Circuit's holding in Bennett in the absence of an intervening contrary Supreme Court decision or an en banc Ninth Circuit decision on point and to the contrary.
As discussed supra, under Bennett's burden-shifting scheme, once respondent "has adequately pled the existence of an independent and adequate state procedural ground as an affirmative defense," the burden shifts to petitioner to "demonstrate the inadequacy of the state procedure." Bennett, 322 F.3d at 585-86. The ultimate burden of proving the adequacy of the procedural rule, however, rests upon respondent. Id.
1. Petitioner's initial burden
Petitioner contends that the Ninth Circuit "implicitly found that petitioner had made sufficient specific allegations challenging Dixon's adequacy and independence when it remanded the case with the burden on Respondent to prove the bar." (Reply at 3 n.2).
In its Memorandum, the Ninth Circuit acknowledged that petitioner had "presented evidence challenging the independence and adequacy" of Dixon and directed the "district court to permit [respondent] to submit evidence to the contrary, and for consideration by the district court in the first instance." (Memorandum at 3-4). Giving petitioner the benefit of any doubt, the Court will assume without deciding that the Ninth Circuit found petitioner's evidence pertaining to the independence and adequacy of the Dixon rule sufficient to meet her burden under Bennett to place that defense in issue.
a. petitioner's evidence challenging Dixon's adequacy
Petitioner contends that the Dixon rule was not "firmly established and regularly followed on the date of [petitioner's] default." (Reply at 15 (internal quotation marks omitted)). Petitioner argues that "there is evidence that clearly shows that Dixon was not being applied in the vast majority of cases at the time of [petitioner's] alleged default." (Id. at 8). Petitioner then contends:
In an order list issued by the California Supreme Court on December 21, 1999 -- six months after [petitioner's] default -- the California Supreme Court denied approximately 210 habeas corpus petitions and only invoked the Dixon bar in about nineteen of them, less than ten percent of its habeas denials. Because a much, much larger percentage of primarily non-capital habeas petitions would likely have included record-based claims, the sparsity of citation to Dixon reveals clear lack of consistency and regularity in the application of the bar.(Id. at 9 (emphasis added, internal citations omitted)). Although petitioner acknowledges that the relevant period in which the adequacy of Dixon must be evaluated is the time "leading up to [petitioner's] filing of her direct appeal," which was filed on June 10, 1999 (Reply at 8), petitioner presents evidence only for one random day six months after the relevant default date without providing any explanation of the significance of the day that she selected for her analysis.
In addition, petitioner presents more detailed information from what she characterizes as a "small sample of cases from" the list of 210 habeas cases denied by the California Supreme Court on December 21, 1999. Within the nine cases that petitioner cites, without explaining her sampling methodology, petitioner contends that "there are many cases where the state court did not invoke the Dixon bar even though the petitions presented record-based claims that could have been raised on direct appeal but were not." (Id. at 11-12). Petitioner argues that her evidence that these nine cases she selected were "denied on the merits amply demonstrates that, in actual practice, the California Supreme Court did not apply the Dixon bar between August of 1998 and December of 1999 with the consistency required to bar federal" habeas review. (Id. at 12).
Petitioner additionally argues that the Dixon bar is inadequate because "federal courts that have examined the practices of the California courts have found that the Dixon bar was not being applied in the 'vast majority of cases' in the years following the California Supreme Court's latest attempt (i.e., in Robbins) to establish the rule's parameters and give it effect." (Reply at 13). Petitioner then cites two cases, both of which concern relevant dates of default that were before the California Supreme Court's 1998 decision in Robbins (id.). See Carpenter v. Ayers, 548 F. Supp. 2d 736, 756 (N.D. Cal. 2008) (the applicable default date was 1996 or early 1997, either of which pre-dates the decision in Robbins); Dennis v. Brown, 361 F. Supp. 2d 1124, 1126, n.4,1130, 1135 (N.D. Cal. 2005) (The case involves claims that were allegedly defaulted as untimely, successive, pretermitted, or repetitive; the claims denied as "pretermitted" were denied with a citation to Dixon. Those claims were purportedly defaulted on May 10, 1996, and the district court concluded that the claims were not procedurally defaulted: "Because the underpinnings of the determinations reflected in such denials cannot be ascertained with any certainty on the record now before it, and because it must follow Bennett.").
In Robbins, the California Supreme Court explicitly held that it would no longer evaluate whether an error alleged in a state habeas petition constituted a federal constitutional violation. In other words, the California Supreme Court held that, when finding a claim to be procedurally defaulted subsequent to Robbins, it would do so solely upon state law grounds. Id. Thereafter, in Bennett, the Ninth Circuit applied the California Supreme Court's holding in Robbins "prospectively," and held that "the California Supreme Court's post-Robbins denial of [petitioner's] state petition for lack of diligence (untimeliness) was not interwoven with federal law and therefore is an independent procedural ground." Bennett, 322 F.3d at 582-83.
Petitioner next argues: "Notably, when federal courts have examined California's application of Dixon in the post-Robbins era on the basis of evidence from both the petitioner and the respondent, they have invariably found the rule inadequate to bar federal habeas review." (Reply at 13-14 (emphasis added)). But the cases that petitioner cites do not support this assertion. Petitioner cites Dennis, 361 F. Supp. 2d at 1130 (as noted above, the relevant default date was pre-Robbins), and five other district court cases. See Reply at 13 n.9 (citing Rowland v. Lamarque, 2009 WL 1668584, at *3 (E.D. Cal. June 15, 2009) (concluding that Dixon was not an adequate and independent rule because respondent "has not met his burden of demonstrating that the Dixon bar is 'adequate,'" without citing any evidence put forth by either party); Gibbs v. Runnels, 2009 WL 30296, at *3 (E.D. Cal. Jan. 6, 2009) (again finding that respondent had not met its burden of demonstrating the adequacy of Dixon without citing any evidence put forth by either party); Rodriguez v. Scribner, 2008 WL 1365785, at *13 (E.D. Cal. Apr. 9, 2008) (same); Wyrick v. Newland, 2007 WL 760529, at *6 (N.D. Cal. Mar. 9, 2007) ("After Robbins, the question of whether the Dixon bar constitutes a bar to federal review is unsettled. Nevertheless, it is unnecessary to resolve this question in this case since the state has failed to meet its burden of proof in establishing the procedural bar in this case." (again without citing any evidence by either party)); Monarrez v. Alameda, 2005 WL 2333462, at *5-6 (C.D. Cal. Sept. 22, 2005) (the independence of the Dixon bar was not contested, but the court found that petitioner had met his "modest" burden of placing the adequacy of the rule in issue with evidence of "his own survey of 210 non-capital habeas corpus petitions decided on December 21, 1999, just a month before the date of the purported default, showing inconsistent application of the Dixon rule by the California Supreme Court in that the Dixon bar was applied in only 19 cases, less than 10 per cent of those decided"; respondent then "did nothing to affirmatively demonstrate the adequacy of the Dixon rule," and the court found that respondent had failed to meet its burden of proving the adequacy of the procedural bar)). Notably, in only one of the cases cited by petitioner, Monarrez, did a petitioner put forward any evidence of the inadequacy of Dixon, and the respondent in Monarrez "did nothing," as that court stated. Further, the court in Monarrez added a footnote stating: "This is not to say that the Dixon bar could not be shown to be adequate for procedural default purposes. It simply has not been done in this case." Monarrez, 2005 WL 2333462, at *6 n.7. / / /
Petitioner here apparently used the same evidence as was presented in Monarrez.
b. petitioner's evidence challenging Dixon's independence
Petitioner contends that the Dixon rule is not independent of federal law because, even subsequent to the California Supreme Court's decision in Robbins, it is "clear that Dixon still lacks independence from federal law." (Reply at 16). Petitioner argues that the California Supreme Court in Robbins set forth the four exceptions it would consider to that bar, but did not state that it would make such determinations without considering federal law. Further, when the California Supreme Court later discussed the application of the Waltreus and Dixon rules in Seaton, it again failed to specify that the determination of whether a claim raised a constitutional error would be made without consideration of federal law. (Id. at 17-18). Petitioner contends that the Ninth Circuit's decision in Park, 202 F.3d at 1152-52, declined to decide whether the Dixon bar was independent post-Robbins. (Id. at 16). Petitioner asserts that, because the California Supreme Court has "failed to make clear that the Dixon rule's application is independent," this Court "must presume that [application of the rule] was based partially on federal grounds." (Id. at 18-19).
The Court concurs with petitioner that respondent is incorrect that petitioner "implicitly concedes" the independence of the Dixon bar. (See Response at 12). In her Opening Brief to the Ninth Circuit, petitioner framed her Issue (1) as whether the Dixon rule was "consistently applied" and "independent of federal law." (See Opening Brief at 1, 26, 32; see also petitioner's Reply, at 7 n.5). The Ninth Circuit then remanded the case finding: "On appeal, [petitioner] presented evidence challenging the independence and adequacy of In re Dixon at the time of [petitioner's] procedural default." (Memorandum at 3). Accordingly, the Court finds that petitioner has not waived her claim that the Dixon rule is not independent of federal law.
2. Respondent's ultimate burden
In its Response, respondent first argues that, "under Martin, respondent does not bear the ultimate burden of proving the [procedural] bar." (Response at 7). As discussed supra, fn 6, the Court disagrees. Respondent, however, goes on to argue that it has satisfied its burden under Bennett by showing that the Dixon bar was independent, firmly established, and regularly followed at the time of petitioner's default. (Id. at 7-8).
a. respondent's evidence showing Dixon's adequacy
Respondent contends that the United States Supreme Court's recent decision in Walker v. Martin holding that a "state procedural rule can adequately bar federal habeas review even if the state court exercises its discretion at times to disregard the rule and decide a habeas claim on its merits," is applicable to the Dixon rule. (Response at 6-7 (emphasis in original)). Respondent argues that the Dixon rule has been applied for over sixty years by California courts. Since 1993, respondent continues, when the California Supreme Court "reestablished" the application of its procedural bars in its decisions in Clark and Harris, the Dixon rule had been well-established and consistently applied by California Courts. See Fields v. Calderon, 125 F.3d 757, 760 (9th Cir. 1997) (discussing the Dixon bar), cert. denied, 523 U.S. 1132 (1998); (Response at 13). Federal district courts have found that Dixon is an adequate state procedural bar since that time, which was six years prior to petitioner's failure to raise her claims. See, e.g., Protsman v. Pliler, 318 F. Supp. 2d 1004, 1007-08 (S.D. Cal. 2004) (finding Dixon bar applied post-1998 to be both adequate and independent of federal law); Ngoun v. Adams, 2006 WL 707406, at *9-11 (E.D. Cal. Mar. 21, 2006) (finding the Dixon bar was adequate on May 14, 1999); (Response at 13-14).
Further, respondent contends that the evidence that petitioner presented "in an effort to demonstrate the inadequacy of the Dixon bar actually illustrates its consistency and regularity." (Response at 14). As held by the Supreme Court in Martin, "a state procedural rule is no less firmly established simply because it is sometimes not applied." Martin, 131 S. Ct. at 1128; (Response at 14). It is only when a state court has "exercised its discretion in a surprising or unfair manner" that a state procedural ground should be found inadequate to preclude federal habeas relief. (Response at 14) (citing Martin, 131 S. Ct. at 1130).
Finally, respondent argues, consideration of petitioner's evidence together with that adduced by respondent demonstrates that the California courts regularly applied the Dixon bar at the time of petitioner's default. Petitioner's evidence pertaining to the allegedly inconsistent application of the Dixon bar on one selected day, December 21, 1999, supports the fact that the procedural rule was consistently applied in the relevant time period. Petitioner's data reflect that approximately ten percent of the habeas petitions decided by the California Supreme Court on that day referenced Dixon, but a majority of the habeas petitions (57%) were decided without citation of any procedural rule. (Response at 15-16). The additional data provided by respondent illustrate that, during a period of nearly two years, from August 3, 1998 (when the California Supreme Court decided Robbins), until June 10, 2000 (one year after petitioner had filed her appellate brief), the majority of habeas petitions decided by the California Supreme Court were denied without citation to any procedural rule and the Dixon bar was applied "on a predictable basis -- in roughly ten to fifteen percent of all denied habeas petitions." The average rate of denials citing Dixon during the entire period examined by respondent was slightly over twelve percent, which is consistent with the data adduced by petitioner for the one day that she selected. (Response at 19-20). Respondent contends that the data show that, in the over 4,700 habeas petitions denied by the California Supreme Court during the period examined, the Dixon bar was firmly established and regularly followed. Petitioner's small sampling of specific cases is not to the contrary because the nine cases that she "hand-selected" include several petitions raising claims of ineffective assistance of counsel, which is more appropriately raised in a habeas petition rather than on direct appeal, and three of the petitioners had pleaded guilty, which significantly restricted their right to appeal under California law. (Response at 16-18, 20).
Respondent notes that petitioner's day for which she provided data -- which appears to be arbitrarily selected -- actually falls six months after petitioner's relevant default date of June 10, 1999, the day on which she filed her appellate brief on direct review and should have raised the claims to which the Dixon bar was later applied. (Response at 15).
In her Reply, petitioner objects to respondent's application of the Supreme Court's holding in Martin on the basis that the Dixon rule is "mandatory" and not discretionary, and because the decision in Martin "explicitly limited the scope [of the holding] to the adequacy of California's discretionary timeliness rule." (Reply at 2-4). Petitioner argues that "[f]or mandatory rules the analysis remains unaltered from that in the previous case law, as is shown by the post-Martin application of traditional adequacy-and-independence analysis in other courts." (Reply at 5 (citing only Lark v. Secretary Pa. Department of Corr., 645 F.3d 596 (3rd Cir. 2011)). Accordingly, petitioner asserts, Martin did not mandate a "new method of analysis of adequacy on [sic] every procedural bar, including the Dixon bar," and the "burden remains on respondent to prove Dixon's adequacy at the time of [petitioner's] alleged default." (Reply at 6).
b. respondent's evidence showing Dixon's independence
Respondent contends that, since the California Supreme Court's decision in Robbins on August 3, 1998, a California court's determination of whether an exception applies to the Dixon bar is independent of federal law. Respondent cites Park and several district court cases holding that the application of Dixon is independent of federal law. (Response at 12-13).
c. petitioner makes no showing of cause and prejudice to excuse her default
Respondent contends that this Court previously determined that petitioner neither showed cause for her procedural default nor demonstrated that barring the defaulted claims would create a fundamental miscarriage of justice. Accordingly, respondent argues that the Court should once again find that the claims are procedurally barred. (Response at 21-22).
E. ANALYSIS
1. The Dixon rule is an adequate state law ground
First, the Court rejects petitioner's argument that the Supreme Court's decision in Martin has no relevance to a Dixon bar. Rather, the Court concurs with respondent that the Supreme Court's holding in Martin is not narrowly confined to California's timeliness rule. Prior to Martin, the Supreme Court held that "a discretionary rule can serve as an adequate ground to bar federal habeas review," and that a rule may be adequate "even if the appropriate exercise of discretion may permit consideration of a federal claim in some cases but not others." Beard v. Kindler, ___ U.S. ___, 130 S. Ct. 612, 618, 175 L. Ed. 2d 417 (2009); see also Martin, 131 S. Ct. at 1128-29. As the Supreme Court recently observed in Martin, 131 S. Ct. at 1130, "[d]iscretion enables a court to home in on case-specific considerations and to avoid the harsh results that sometimes attend consistent application of an unyielding rule." Such discretion is applicable to the Dixon rule because a state court may find that special circumstances excuse a petitioner's failure to raise a ground on appeal. See, e.g., Fleeman v. Castro, 2009 WL 33241, at *7 (E.D. Cal. Jan. 6, 2009) (the Dixon rule is "discretionary in that it admits of the possibility of exceptions for 'special circumstances constituting an excuse' for failure to raise a claim by way of direct appeal and when such circumstances are found, the California Supreme Court may entertain the claim"); Jones v. Ayers, 2008 WL 906302, at *28 (E.D. Cal. Mar. 31, 2008) (finding the Dixon rule to be discretionary because, as set forth in Park, 202 F.3d at 1152, the California Supreme Court explained in Harris that exceptions are applicable to the Dixon rule that admit the possibility that the California Supreme Court may entertain a claim not raised on direct appeal). Accordingly, the Court may look to the Supreme Court's recent decision in Martin for guidance in evaluating the adequacy of the state courts' application of the Dixon rule. See, e.g., Jensen v. Hernandez, 2012 WL 1130599, at *11-12 (E.D. Cal. Mar. 30, 2012) (citing Martin in considering, in part, a Dixon bar); Peyton v. Lopez, 2012 WL 1203484, at *7 (C.D. Cal. Feb. 22, 2012) (same).
Second, to be "adequate," the procedural rule in question must be "firmly established and regularly followed." Martin, 131 S.Ct. at 1127 (citing Kindler, 130 S.Ct. at 618). "In determining the adequacy of the procedural bar, state cases applying the procedural bar after the time of the petitioner's default are irrelevant." Bennett v. Mueller, 364 F. Supp. 2d 1160, 1167 (C.D. Cal. 2005) (on remand, citing Cockett v. Ray, 333 F.3d 938, 943 (9th Cir. 2003)) (emphasis added). Here, petitioner's only evidence of purported inadequacy pertains to a day that falls six months after petitioner's default. Respondent, however, has adduced evidence for the six-month period up to and including June 1999, the month in which petitioner filed her brief on direct appeal. According to respondent's evidence for these six months, the California Supreme Court denied 1,513 habeas petitions, of which 178, or approximately 12 percent, were denied with citations to Dixon. (Response at 20).
Petitioner claims that the Dixon bar is not adequate because, on the one day for which she presents evidence, only about 10% of the habeas denials cited Dixon. Petitioner adduces no evidence to support her speculation that "a much, much larger percentage of primarily non-capital habeas petitioners would likely have included record-based claims." Petitioner argues that "[l]ogically, convicts untrained in the law would have thrown into a petition any claim that seemed potentially meritorious, with little thought or understanding as to whether the claim was record-based." From this unsupported speculation, petitioner concludes that the fact that the Dixon bar was cited only "one time out of ten indicates a distinct lack of thoroughness in the court's review and a lack of regularity and consistency in the bar's application," rendering the Dixon rule inadequate. (Reply at 10-11). Petitioner's conclusion, however, is unsupported by any facts or evidence. No lack of thoroughness or inconsistency can be inferred from the number of times that the California Supreme Court cited Dixon on this one day absent some evidence of the number of times that claims to which the Dixon rule could apply were instead rejected on the merits on that same day. The Dixon rule is only applicable to "claimed errors [that] could have been, but were not, raised upon a timely appeal" (Dixon, 41 Cal. 2d at 759), and petitioner does not even purport to make a factual showing that more than ten percent of the habeas petitions denied on the day to which she points involved claims that could have fallen under the Dixon rule. Rather, taking into account the evidence provided by respondent pertaining to the relevant time period prior to petitioner's default, the California Supreme Court cited the Dixon rule in a consistent and regular percentage of the habeas petitions that it denied. The United States Supreme Court has made it clear that a state procedural rule can serve as an adequate bar to federal habeas review "even if the appropriate exercise of discretion may permit consideration of a federal claim in some cases but not others." Kindler, 130 S. Ct. at 618; see also Martin, 131 S. Ct. at 1128, 1129 ("We see no reason to reject California's time bar simply because a court may opt to bypass the [untimeliness] assessment and summarily dismiss a petition on the merits, if that is the easier path."). Moreover, as Judge Kozinski recently noted, there is no "existing Ninth Circuit precedent holding that the Dixon rule is inadequate." Cree v. Sisto, 2011 WL 66253, at *2 (E.D. Cal. Jan 7, 2011) (Kozinski, J., sitting by designation).
Finally, as in Martin, petitioner does not contend that "the California Supreme Court exercised its discretion in a surprising or unfair manner." See Martin, 131 S. Ct. at 1130. Nor is such a conclusion implied by the evidence adduced by petitioner and respondent of the California Supreme Court's application of the Dixon rule. Accordingly, the Court concurs with respondent that the evidence reflects that the Dixon rule was well established and regularly followed in a consistent percentage of the California Supreme Court's summary denials of habeas petitions in the time leading up to petitioner's default.
2. The Dixon rule is an independent state law ground
The Court rejects petitioner's argument that, even subsequent to the California Supreme Court's decision in Robbins, the application of Dixon "lacks independence from federal law," as well as petitioner's contention that the Court should "presume" the application of Dixon is based on federal grounds despite the assertion of the California Supreme Court to the contrary. (Reply at 16, 18-19). Rather, as the Ninth Circuit noted in Bennett, the Court must "respect the California Supreme Court's sovereign right to interpret its state constitution independent of federal law." Bennett, 322 F.3d at 582.
In Park, the Ninth Circuit stated that: "We do not decide here whether Robbins establishes the independence of California's Dixon rule for the future," because the default in question in that case occurred prior to the decision in Robbins. Park, 202 F.3d at 1153. But the Ninth Circuit noted that "[t]he California Supreme Court has adopted in Robbins a stance from which it will now decline to consider federal law when deciding whether claims are procedurally defaulted." 202 F.3d at 1152. Subsequently, in Bennett, the Ninth Circuit discussed the California Supreme Court's decision in Robbins with respect to both the Dixon bar and California's untimeliness rule. The Ninth Circuit then held that a post-Robbins denial of a state habeas petition for untimeliness "was not interwoven with federal law and therefore is an independent procedural ground." Bennett, 322 F.3d at 581-83. Several district court cases have subsequently found that the Ninth Circuit's reasoning in Bennett is equally applicable to Dixon. See, e.g., Milligan v. Ahlin, 2011 WL 5040716, at *9 (E.D. Cal. Oct. 21, 2011) (applying the reasoning of Bennett to the invocation of the Dixon rule after Robbins); Gaddy v. Hedgpeth, 2011 WL 2433673, at *10 (E.D. Cal. Jun. 14, 2011) (finding that a post-Robbins invocation of the Dixon rule is independent: "[a]lthough Bennett did not involve the Dixon rule per se, its rationale applies with equal force to a post-Robbins application of the Dixon bar because the Dixon bar and the untimeliness bar are both subject to analogous constitutional error exceptions and state court consideration of post-Robbins applications of these bars no longer involves federal law"); Cree, 2011 WL 66253, at *2 (holding that the "Dixon rule is independent, because it is applied without any consideration of federal law," and citing Protsman, 318 F.Supp.2d at 1006-08); Jones v. Ayers, 2008 WL 4472888, at *27 (E.D. Cal. Sept. 30, 2008) (concluding that Dixon is an independent bar subsequent to Robbins because "the logic of Bennett, which is based on Robbins, applies equally to Dixon defaults as it does to timeliness defaults"); Protsman, 318 F.Supp.2d at 1007-08 (citing the Ninth Circuit's decision in Bennett that the California Supreme Court's assertion in Robbins that it would no longer consider federal law in determining whether to apply a state procedural rule was sufficient to render California's timeliness rule independent post-Robbins, finding that the reasoning applied by the Ninth Circuit in Bennett "also applies to the application of the Dixon bar," and holding that the Dixon rule is an independent procedural bar post-Robbins); see also Rhodes v. Uribe, 2012 WL 928434, at *4 (C.D. Cal. Feb. 10, 2012) (finding that the Dixon rule was independent and adequate); Cantrell v. Evans, 2010 WL 1170063, at *13-14 (E.D. Cal. Mar. 24, 2010) (finding Dixon to be independent and adequate state procedural ground) (McKeown, J., sitting by designation).
Accordingly, the Court finds that respondent has carried its burden of showing that the Dixon rule was independent of federal law at the time the California Supreme Court applied it to petitioner's Grounds 5-11 in the SAP and her Sup. Grounds 1-4.
3. Petitioner has failed to show cause and prejudice
The Court previously found in its R&R that petitioner had not even purported to assert that any objective factor prevented her from raising her claims in accordance with the state's procedural rules. Because petitioner must demonstrate both cause and prejudice, once petitioner failed to show cause, the Court had no need to reach the issue of whether petitioner had satisfied her burden of demonstrating the requisite "prejudice." See Murray, 477 U.S. at 494; Thomas v. Lewis, 945 F.2d 1119, 1123 n.10 (9th Cir. 1991); (R&R at 20-21). Once again, post-remand, petitioner does not even purport to argue that any objective factor prevented her from raising her claims in accordance with the state's procedural rules, nor does she argue herein that the failure to consider the procedurally defaulted claims will result in a fundamental miscarriage of justice. As the Court previously found, to meet the requisite standard that a constitutional violation probably has resulted in the conviction of one who is actually innocent, "the petitioner must show that it is more likely than not that no reasonable juror would have convicted [her] in light of the new evidence." Schlup, 513 U.S. at 327. Once again, petitioner has not presented the kind of new reliable evidence described in Schlup, nor has she attempted to make the requisite showing of actual innocence sufficient to meet the Schlup standard.
On appeal to the Ninth Circuit, petitioner first argued that a showing of "cause and prejudice is not necessary" because the claims at issue were not procedurally barred. Petitioner then asserted that, should such a showing be necessary, she could show a fundamental miscarriage of justice would occur. However, the only "showing" that petitioner purported to make to the Ninth Circuit was to argue that she was "improperly convicted of two counts of first-degree murder" and that the "convictions were unsupported by the facts." (Opening Brief at 37-39). --------
4. Petitioner's claims should be dismissed as procedurally barred
The California Supreme Court's denial of petitioner's claims raised herein as her Grounds 5-11 in the SAP and Sup. Grounds 1-4 was based on a procedural rule that was an adequate and independent state law ground at the time of petitioner's default. Because petitioner has made no showing that the failure to consider the procedurally defaulted claims will result in a fundamental miscarriage of justice of someone who is actually innocent of the crimes of which petitioner was convicted, the Court once again recommends that petitioner's Grounds 5-11 in the SAP and Supplemental Grounds 1-4 be dismissed as procedurally barred. / / / / / /
IV.
RECOMMENDATION
It is recommended that the District Court issue an Order: (1) adopting this Report and Recommendation; (2) dismissing petitioner's Grounds 5-11 in the SAP and Supplemental Grounds 1-4 as procedurally barred; and (3) directing that judgment be entered denying the Petition and dismissing this action with prejudice. DATED: May 1, 2012
/s/_________
PAUL L. ABRAMS
UNITED STATES MAGISTRATE JUDGE
NOTICE
Reports and Recommendations are not appealable to the Court of Appeals, but are subject to the right of any party to file Objections as provided in the Local Rules Governing Duties of Magistrate Judges, and review by the District Judge whose initials appear in the docket number. No Notice of Appeal pursuant to the Federal Rules of Appellate Procedure should be filed until entry of the Judgment of the District Court.