La Crosse v. Kernan
| Decision Date | 01 October 1999 |
| Docket Number | No. 97-55085,97-55085 |
| Citation | 244 F.3d 702 |
| Parties | (9th Cir. 2001) DENNIS MARK LA CROSSE,Petitioner-Appellant, v. PEGGY KERNAN, Warden; ATTORNEY GENERALOF THE STATE OFCALIFORNIA, Respondents-Appellees |
| Court | U.S. Court of Appeals — Ninth Circuit |
Dennis Mark La Crosse, Vacaville, California, appellant pro se.
Chung Mar, Deputy Attorney General, Los Angeles, California, for the respondents-appellees.
Appeal from the United States District Court for the Central District of California Laughlin E. Waters, District Judge, Presiding D.C. No.CV-96-04111-LEW
Before: Diarmuid F. O'Scannlain, Ferdinand F. Fernandez and Thomas G. Nelson, Circuit Judges.
Dennis Mark La Crosse appeals the district court's dismissal of his petition for habeas corpus, claiming that the California Supreme Court's denial of his claim in 1996 did not act as a bar to federal habeas review. We have jurisdiction pursuant to 28 U.S.C. S 2253 and we affirm, although on grounds different from those relied upon by the district court.
On April 21, 1983, a Los Angeles County jury convicted Dennis Mark La Crosse of one count of first-degree murder. La Crosse was subsequently sentenced to state prison for a term of twenty-six years to life. On May 31, 1984, the California Court of Appeal affirmed the judgment of conviction.
On April 12, 1996, La Crosse filed a petition for writ of habeas corpus in the California Supreme Court, contending that his right to be present during all critical stages of his trial was violated when testimony was read back to the jury outside of his presence. La Crosse failed to raise this issue on direct appeal in 1984. The California Supreme Court's orderrejecting his 1996 petition stated, in its entirety:"Petition for writ of habeas corpus DENIED on the merits and for lack of diligence."
On June 14, 1996, La Crosse filed a timely petition for writ of habeas corpus in the United States District Court, Central District of California, raising the same claim he had alleged in his state habeas petition.2 The district court denied the petition with prejudice, finding that federal review was barred pursuant to an independent and adequate state procedural rule.
The district court's dismissal of the petition for writ of habeas corpus on the ground of state procedural default presents issues of law that we review de novo. 3
In a federal habeas action brought by a state prisoner, federal courts "will not review a question of federal law decided by a state court if the decision of that court rests on a state law ground that is independent of the federal question and adequate to support the judgment."4 We must decide whether the California Supreme Court's decision denying La Crosse's petition rested on an "independent and adequate state ground" that could bar federal review.5
For a state procedural rule to be "independent," the state law basis for the decision must not be interwoven with federal law.6 "A state law ground is so interwoven if `the state has made application of the procedural bar depend on an antecedent ruling on federal law [such as] the determination of whether federal constitutional error has been committed.' "7 To be "adequate," the state procedural rule must be "strictly or regularly followed" and "consistently applied."8 "[U]nless the state court makes clear that it is resting its decision denying relief on an independent and adequate state ground, it is presumed that the state denial was based at least in part upon federal grounds, and the petitioner may seek relief in federal court."9
The California Supreme Court has, over the years, developed two procedural rules that it applies to post-appeal habeas corpus petitions--the bar of untimeliness 10 and the Dixon default rule.11 The "untimeliness bar" requires that prisoners who do not file their habeas corpus petitions within a specified time frame establish "either (i) absence of substan-tial delay; (ii) good cause for the delay; or (iii) that his claims fall within an exception to the bar of untimeliness."12 The Dixon rule bars California state courts from granting habeas relief to a prisoner who failed to pursue the claims raised in his habeas petition on direct appeal from his conviction, unless his claims fall within an exception to the rule.13
We have previously held that, at least prior to 1993, neither California's Dixon rule nor its untimeliness rule was an adequate and independent state law ground that could bar federal review.14 However, in 1993, the California Supreme Court sought to clarify the exceptions to both the Dixon rule and the bar of untimeliness.15 In Park, we held that Dixon's "fundamental constitutional error" exception, as defined in Harris, involved the application of federal law and therefore a California court's 1996 denial pursuant to Dixon of a habeas petition alleging constitutional error could not bar federal habeas review.16 We are now presented with the issue of whether the 1996 application of California's untimeliness bar to a habeas petition alleging constitutional error can bar federal habeas corpus review.
Although the California Supreme Court's denial cited only "lack of diligence" for denying La Crosse's petition, we believe the district court was correct in concluding that the California Supreme Court was applying the untimeliness bar because La Crosse delayed for nearly twelve years between his direct appeal and his state petition for habeas corpus.17 In Robbins, the California Supreme Court stated: "[W]hen in our orders we impose the bar of untimeliness, this signifies that we . . . have determined that the petitioner has failed to establish the absence of substantial delay or good cause for delay, and that none of the four exceptions set out in Clark apply."18 The four exceptions in Clark are:
(1) that error of constitutional magnitude led to a trial that was so fundamentally unfair that absent the error no reasonable judge or jury would have con victed the petitioner; (2) that the petitioner is actually innocent of the crime or crimes of which the peti tioner was convicted; (3) that the death penalty was imposed by a sentencing authority which had such a grossly misleading profile of the petitioner before it that absent the error or omission no reasonable judge or jury would have imposed a sentence of death; or (4) that the petitioner was convicted or sentenced under an invalid statute.19
In denying La Crosse's petition, the California Supreme Court thus determined that his allegation of constitutional error did not meet the criteria for the error of constitutional magnitudeexception listed in Clark. The question that arises, then, is whether the California Supreme Court solely relied on state constitutional law in making this determination. If it did not, then the California Supreme Court's denial of La Crosse's petition on procedural grounds cannot bar federal review.
We first look to the text of the California Supreme Court's opinion in Clark. In fashioning the four exceptions to the untimeliness bar, the California Supreme Court surveyed the various approaches of state and federal courts in considering successive or delayed habeas petitions.20 It adopted the federal approach of considering the merits of untimely or successive petitions where error of a constitutional magnitude led to a fundamental miscarriage of justice.21 In doing so, the California Supreme Court did not limit its adoption of the federal approach to allow consideration of only state constitutional law. The court also expressly relied on federal constitutional law in concluding that claims of constitutional error, such as ineffective assistance of counsel, required a showing of fundamental unfairness.22 Therefore, from Clark we can conclude that California courts did consider federal constitutional law in considering whether to apply the constitutional error exception to the bar of untimeliness.
Since the denial of La Crosse's habeas petition, however, the California Supreme Court has explicitly addressed the issue of whether it considers state and federal constitutional law or solely state constitutional law in determining whether to apply the error of constitutional magnitude exception to untimely or successive petitions.23 There, the California Supreme Court stated:
Although the exception is phrased in terms of error of constitutional magnitude -which obviously may include federal constitutional claims -in applying this exception and finding it inapplicable we shall, in this case and in the future, adopt the following approach as our standard practice: We need not and will not decide whether the alleged error actually constitutes a federal constitutional violation. 24
We have held that this language is clearly prospective, and this new approach would not have applied to the denial of La Crosse's petition.25 We have noted that this language indicates an acknowledgment by the California Supreme Court that, prior to 1998, it did make an antecedent ruling on federal law before finding the constitutional error exception to be inapplicable.26
Finally, one additional source for guidance is the California Supreme Court's approach to its denials pursuant to Dixon.27 Where a petitioner fails to pursue a claim on direct appeal and subsequently raises the claim in a state habeas petition, a Cali-fornia court will apply the Dixon default rule unless the court finds one of four exceptions apply, including "fundamental constitutional error."28 We have noted that this exception to the Dixon rule is analogous to the constitutional error exception to the Clark procedural bar.29
In Park, we held that, in cases before Robbins was decided in August 1998 and where the habeas petition...
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