Deere v. Calderon

Citation890 F. Supp. 893
Decision Date28 July 1995
Docket NumberNo. CV 92-1684-GLT [TD].,CV 92-1684-GLT [TD].
CourtUnited States District Courts. 9th Circuit. United States District Courts. 9th Circuit. Central District of California
PartiesRonald Lee DEERE, Petitioner, v. Arthur CALDERON, Warden, (San Quentin Prison) Respondent.

COPYRIGHT MATERIAL OMITTED

Diana Samuelson, Serra, Perelson, Lichter, Daar and Bustamante, San Francisco, CA, Michael Satris, Margaret J. Littlefield, Law Offices of Michael Satris, Bolinas, CA, for petitioner.

Daniel E. Lungren, Atty. Gen. of the State of California, George H. Williamson, Chief Asst. Atty. Gen., Gary W. Schons, Sr. Asst. Atty. Gen., William M. Wood, and Frederick R. Millar, Jr., Supervising Deputy Attys. Gen., San Diego, CA, for respondent.

AMENDED ORDER FINDING THAT CERTAIN OF PETITIONER'S CLAIMS ARE PROCEDURALLY BARRED

TAYLOR, District Judge.

The court finds that, since the California Supreme Court's 1993 Clark decision, that court has applied the timeliness procedural bar with consistency in death penalty habeas corpus cases. Therefore, the federal court will now enforce the state court procedural bar.

I. BACKGROUND

Petitioner was convicted in 1982 of three murder counts, and was sentenced to death. The judgment of death was eventually affirmed by the California Supreme Court. He filed his first state habeas corpus petition in January 1991. Respondent did not challenge the merits, but argued the petition should be dismissed because petitioner did not personally verify it and did not adequately explain the delay in filing.1 Petitioner's reply focused only on the two procedural arguments. In June 1991 the California Supreme Court issued an order stating simply, "Petition for writ of habeas corpus DENIED."

Petitioner filed a federal habeas corpus petition, but this court found it contained a number of unexhausted claims, so Petitioner filed a second state habeas petition in December 1993. Respondent again argued the state petition should be dismissed on procedural grounds because it was successive and delayed without justification. On May 25, 1994, the California Supreme Court issued its order:

The petition for writ of habeas corpus filed December 2, 1993 is DENIED as successive and untimely. (In re Clark (1993) 5 Cal.4th 750, 775, 783-787 21 Cal.Rptr.2d 509, 855 P.2d 729.) In addition, claims B, E, G, H, J, O, and P are denied as issues that could have been, but were not, raised in a timely appeal from judgment. (In re Harris, (1993) 5 Cal.4th 813, 829 21 Cal. Rptr.2d 373, 855 P.2d 391; In re Dixon, (1953) 41 Cal.2d 756, 759 264 P.2d 513), and claim I is denied on the ground that it was raised and rejected on appeal. (In re Harris, 5 Cal.4th 813, 829 21 Cal.Rptr.2d 373, 855 P.2d 391; In re Waltreus, (1965) 62 Cal.2d 218, 225 42 Cal.Rptr. 9, 397 P.2d 1001.) The petition is also denied in its entirety on the merits.

Respondent now asks this Court to find the claims petitioner raised in his first and second state habeas petitions are barred from review in this Court because the California Supreme Court denied both petitions on procedural grounds.2

II. DISCUSSION
1. The law concerning Procedural bars

A federal court cannot review a state court judgment that is independent of federal law and adequate to support the result. See Coleman v. Thompson, 501 U.S. 722, 729, 111 S.Ct. 2546, 2553, 115 L.Ed.2d 640 (1991). The federal court takes this position to avoid issuing advisory opinions and to demonstrate respect for the independence of state courts. See Michigan v. Long, 463 U.S. 1032, 1040, 103 S.Ct. 3469, 3476, 77 L.Ed.2d 1201 (1983).

Defining the "independent and adequate" requirement is important because of the potentially profound effect of a state finding of procedural default:

In all cases in which a state prisoner has defaulted his federal claims in state court pursuant to an independent and adequate state procedural rule, federal habeas review of the claims is barred unless the prisoner can demonstrate cause for the default and actual prejudice as a result of the alleged violation of federal law, or demonstrate that failure to consider the claims will result in a fundamental miscarriage of justice.

Coleman, 501 U.S. at 750, 111 S.Ct. at 2565.

An "independent and adequate" state court judgment may be substantive or procedural. Id. at 729, 111 S.Ct. at 2554. A petitioner's failure to comply with a state procedural rule is adequate to bar federal court review of a federal claim if the rule is strictly or regularly followed by the state court. See, e.g., Hathorn v. Lovorn, 457 U.S. 255, 262-63, 102 S.Ct. 2421, 2426, 72 L.Ed.2d 824 (1982); Johnson v. Mississippi, 486 U.S. 578, 587, 108 S.Ct. 1981, 1987, 100 L.Ed.2d 575 (1988). "Strictly or regularly followed" does not mean that the state court must apply the rule in every case where the bar is applicable; a procedural bar will be adequate if it is asserted by the state court in the vast majority of cases. See Dugger v. Adams, 489 U.S. 401, 410 n. 6, 109 S.Ct. 1211, 1217 n. 6, 103 L.Ed.2d 435 (1989).

As a corollary to the requirement of strict or regular compliance, a procedural rule will not bar federal review if it is one that the state can decide whether to assert as a matter of discretion. See Williams v. Georgia, 349 U.S. 375, 383, 75 S.Ct. 814, 819, 99 L.Ed. 1161 (1955) ("a state court may not, in the exercise of its discretion, decline to entertain a constitutional claim while passing upon kindred issues raised in the same manner"); Sullivan v. Little Hunting Park, Inc., 396 U.S. 229, 233-234, 90 S.Ct. 400, 402-403, 24 L.Ed.2d 386 (1969) (a discretionary state procedural rule, as opposed to a jurisdictional rule, does not bar federal review); Harmon v. Ryan, 959 F.2d 1457, 1461 (9th Cir.1992).

In addition to the requirement of strict or regular application, a procedural rule will bar federal court review only if it was firmly established at the time a petitioner violated the rule. See Ford v. Georgia, 498 U.S. 411, 423-424, 111 S.Ct. 850, 857, 112 L.Ed.2d 935 (1991). In other words, a petitioner must have been apprised of the rule's existence at the relevant time.

A state law judgment provides an independent decision ground if it is independent of federal law. Coleman, 501 U.S. at 729, 111 S.Ct. at 2553. A federal court will presume a state court ruling is independent of federal law unless the state ruling appears to rest primarily on federal law or appears to be interwoven with federal law. Id. at 734-35, 111 S.Ct. at 2556-57. Thus, when a state court rejects a claim on an independent and adequate procedural default basis, that ruling is binding on the federal court even if the state court also addresses the merits of the alternative federal claim. See Harris v. Reed, 489 U.S. 255, 264 n. 10, 109 S.Ct. 1038, 1044 n. 10, 103 L.Ed.2d 308 (1989); Fox Film Corp. v. Muller, 296 U.S. 207, 209-10, 56 S.Ct. 183, 183-84, 80 L.Ed. 158 (1935).

2. Timeliness rules in California

States are free to construct rules governing timeliness for raising constitutional claims. See, e.g., Williams v. Georgia, 349 U.S. at 382-383, 75 S.Ct. at 819; Ford v. Georgia, 498 U.S. at 423, 111 S.Ct. at 857.

California has longstanding rules regulating the availability of state habeas relief for state criminal defendants. In In re Stankewitz, 40 Cal.3d 391, 396 n. 1, 220 Cal.Rptr. 382, 708 P.2d 1260 (1985), the California Supreme Court stated:

In a habeas corpus proceeding, it is true, the petitioner must justify any substantial delay in seeking relief.... Hereafter, one who seeks extraordinary relief ... must point to particular circumstances sufficient to justify substantial delay, as we have long required.

In 1989 the California Supreme Court adopted more specific state habeas guidelines for death penalty cases. See Supreme Court Policies Regarding Cases Arising From Judgments of Death, Timeliness Standards 1-1 — 1-3.

Standard 1-1 states:

Appellate counsel in capital cases shall have a duty to investigate factual and legal grounds for the filing of a petition for writ of habeas corpus.... All petitions for writs of habeas corpus should be filed without substantial delay.

Standard 1-1.1 creates a presumption that a habeas petition is filed without substantial delay if it is filed within 90 days of the final due date for the filing of the reply brief in the automatic appeal.3

Standard 1-1.2 allows petitioners who file a habeas petition more than 90 days after the final due date of the reply brief to establish the absence of substantial delay by alleging, with specificity, facts showing that the petition was filed within a reasonable time after petitioner learned of the factual or legal bases for the claim.

Standard 1-1.3 permits petitioners who learned of the factual or legal bases for the claim before the date Stankewitz became final to establish absence of substantial delay by alleging, with specificity, facts showing that the petition was filed within a reasonable time after that date.

Standard 1-2 states:

If a petition is filed after substantial delay, the petitioner must demonstrate good cause for the delay. A petitioner may establish good cause by showing particular circumstances sufficient to justify substantial delay.

Standard 1-3 provides:

Any petition that fails to comply with these requirements may be denied as untimely.

3. California's 1993 Clark case

The California court gave little shape to these standards until it issued a lengthy habeas decision in In re Clark, 5 Cal.4th 750, 21 Cal.Rptr.2d 509, 855 P.2d 729 (1993). Clark, explicitly recognized the California Supreme Court had not previously applied bars to successive petitions with any kind of consistency:

On occasion, the merits of successive petitions have been considered regardless of whether the claim was raised on appeal or in a prior petition, and without consideration of whether the claim could and should have been presented in a prior petition. Citations omitted. Our past decisions have thereby suggested that the rules against piecemeal presentation
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