Dennis v. Brown, No. C 98 21027 JF.

CourtUnited States District Courts. 9th Circuit. United States District Courts. 9th Circuit. Northern District of California
Writing for the CourtFogel
Citation361 F.Supp.2d 1124
PartiesWilliam Michael DENNIS, Petitioner, v. Jill L. BROWN, Warden of San Quentin State Prison, Respondent.
Docket NumberNo. C 98 21027 JF.
Decision Date10 March 2005

Page 1124

361 F.Supp.2d 1124
William Michael DENNIS, Petitioner,
v.
Jill L. BROWN, Warden of San Quentin State Prison, Respondent.
No. C 98 21027 JF.
United States District Court, N.D. California. San Jose Division.
March 10, 2005.

Page 1125

Peter Giannini, Los Angeles, CA, for Petitioner.

Ronald Matthias, San Franciso, CA, for Respondent.

ORDER GRANTING PETITIONER'S MOTION FOR RECONSIDERATION REGARDING ADEQUACY OF STATE PROCEDURAL BARS

FOGEL, District Judge.


On March 31, 2004, this Court granted Respondent's motion to dismiss as procedurally defaulted several claims contained in Petitioner's second amended petition for a writ of habeas corpus. At the same time, the Court granted Petitioner leave to file a motion for reconsideration to determine whether certain procedural bars applied by the California Supreme Court should be found adequate to support the state superior court's judgment against Petitioner under the burden-shifting test for analyzing adequacy announced in Bennett v. Mueller, 322 F.3d 573, 585-86 (9th Cir.2003). Because this Court finds that Respondent has not met her burden under that test of establishing the adequacy of the procedural bars, it necessarily concludes that Respondent has not shown that the affirmative defense of procedural default may be applied to the claims at issue. Accordingly, Petitioner's motion for reconsideration will be granted.

I. BACKGROUND

The factual and procedural history of this case is set forth in Dennis v. Woodford, 65 F.Supp.2d 1093 (N.D.Cal.1999), and People v. Dennis, 17 Cal.4th 468, 71 Cal.Rptr.2d 680, 950 P.2d 1035 (1998). That history therefore is discussed herein only to the extent that it is pertinent to the present motion.

Having been sentenced to death, Petitioner filed his automatic direct appeal to the California Supreme Court on June 19, 1995; he filed his reply brief on direct appeal on May 10, 1996. On August 8, 1996, Petitioner filed his first state petition for a writ of habeas corpus with that court. The court rejected his appeal on February 19, 1998, and denied his first state habeas petition on November 4, 1998.

Petitioner's initial federal petition was filed on May 2, 2001. Because that petition contained both exhausted and unexhausted claims, this Court dismissed it as required by Rose v. Lundy, 455 U.S. 509, 102 S.Ct. 1198, 71 L.Ed.2d 379 (1982). Petitioner then filed a first amended petition that contained only exhausted claims on August 3, 2001.

Petitioner also filed a second state habeas petition as an exhaustion petition with the California Supreme Court on August 2, 2001. That court denied the exhaustion petition on November 26, 2002.1 In its order denying the exhaustion petition, the court denied each claim or subclaim "on the merits" and, "separately and independently," deemed many of the claims and

Page 1126

subclaims to be procedurally barred as untimely,2 successive,3 pretermitted,4 or repetitive.5

Having exhausted the claims that were deleted from his initial federal petition, Petitioner was granted leave on May 21, 2003, to file a second amended petition that was identical to the initial petition. Respondent then moved for — and obtained — dismissal of those claims that the California Supreme Court had deemed untimely, successive, or pretermitted, arguing that they were procedurally defaulted. Bennett was decided after a substantial portion of the briefing of Respondent's motion to dismiss had been completed. Thus, in its order dismissing the claims, the Court sua sponte granted Petitioner leave to file a motion for reconsideration as to whether in light of Bennett the relevant state procedural rules are adequate to support the state's judgment against Petitioner. That motion, which Respondent opposes, is now before the Court.

II. DISCUSSION

As a matter of comity and federalism, a state prisoner must fairly present habeas claims that raise federal questions to the highest state court so as to provide the state with an opportunity to rule on the merits of the claims before the prisoner seeks federal habeas relief. Picard v. Connor, 404 U.S. 270, 278, 92 S.Ct. 509, 30 L.Ed.2d 438 (1971). However, "[w]hatever springes [sic] the State may set for those who are endeavoring to assert rights that the State confers, the assertion of Federal rights, when plainly and reasonably made, is not to be defeated under the name of local practice." Davis v. Wechsler, 263 U.S. 22, 24, 44 S.Ct. 13, 68 L.Ed. 143 (1923) (Holmes, J.).6 In light of these

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competing considerations, a federal court generally "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," Coleman v. Thompson, 501 U.S. 722, 729, 111 S.Ct. 2546, 115 L.Ed.2d 640 (1991), "unless the prisoner can demonstrate cause for the default and actual prejudice as a result of the violation of federal law, or demonstrate that failure to consider the claims will result in a fundamental miscarriage of justice," id. at 750, 111 S.Ct. 2546.

A. Independence

"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). "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.'" Park v. California, 202 F.3d 1146, 1152 (9th Cir.2000) (quoting Ake v. Oklahoma, 470 U.S. 68, 75, 105 S.Ct. 1087, 84 L.Ed.2d 53 (1985) (brackets in original)). To determine whether a state-court decision is independent of federal law, a federal court must examine the decision itself in which the state court invoked the procedural bar, as distinguished from other state-court decisions issued at or prior to the time that the purported procedural defaults occurred. See, e.g., Park, 202 F.3d at 1151-53; Bennett, 322 F.3d at 582-83; La Crosse, 244 F.3d at 707.

The California Supreme Court's order denying Petitioner's exhaustion petition, which was issued in 2002, is a so-called "postcard denial" that does not indicate on its face whether or not the court considered federal law when it invoked procedural bars. However, in 1998 the California Supreme Court declared that it would no longer consider federal law when denying a habeas claim as procedurally barred for untimeliness, with one exception not at issue here. In re Robbins, 18 Cal.4th 770, 77 Cal.Rptr.2d 153, 959 P.2d 311, 338-41 (1998).

In Bennett, the Ninth Circuit stated that

we respect the California Supreme Court's sovereign right to interpret its state constitution independent of the federal law. Applying Robbins prospectively, we [conclude] that the California Supreme Court's post-Robbins denial of [a] state petition for lack of diligence (untimeliness) was not interwoven with federal law and therefore is an independent procedural ground.

322 F.3d at 582-83.

As this Court noted in its prior order regarding procedural default, even though the holding in Bennett involved only the untimeliness bar, Bennett's analysis, as explained in dicta, compels the same result for claims barred as successive or pretermitted because the pre-Robbins consideration of federal law in connection with all three of these bars was equivalent: i.e., it involved the same "constitutional error" exception to the application of all three bars. 322 F.3d at 581-82; see Park, 202 F.3d at 1151-53 (discussing application of Robbins to claims barred as pretermitted); La Crosse, 244 F.3d at 707 (noting that consideration of federal law in barring claims as pretermitted is "analogous" to consideration of federal law in barring claims as untimely); Fields v. Calderon, 125 F.3d 757, 763 (9th Cir.1997) (discussing consideration of federal law in barring claims as pretermitted); In re Clark, 5 Cal.4th 750, 21 Cal.Rptr.2d 509, 855 P.2d 729 (1993) (discussing, inter alia, consideration of federal law in barring claims as untimely, successive, and pretermitted).

Page 1128

This Court therefore followed Bennett in applying Robbins prospectively and concluded that the California Supreme Court's determination of whether claims are procedurally barred as successive or pretermitted, like its determination of whether claims are procedurally barred as untimely, became independent of federal law post-Robbins; thus, that court's post-Robbins decision denying Petitioner's exhaustion petition "rests on... state law ground[s] that [are] independent of the federal question," Coleman, 501 U.S. at 729, 111 S.Ct. 2546. Accord Protsman v. Pliler, 318 F.Supp.2d 1004, 1007-08 (S.D.Cal.2004).

B. Adequacy

A state procedural bar is inadequate to support a state-court judgment if it is not "clear, consistently applied, and well-established at the time of the petitioner's purported default." Wells v. Maass, 28 F.3d 1005, 1010 (9th Cir.1994); see also Lee v. Kemna, 534 U.S. 362, 389, 122 S.Ct. 877, 151 L.Ed.2d 820 (2002).7 A federal court "should not insist upon a petitioner, as a procedural prerequisite to obtaining federal relief, complying with a rule the state itself does not consistently enforce." Siripongs v. Calderon, 35 F.3d 1308, 1318 (9th Cir.1994). Nor should a federal court enforce a bar grounded in a rule that is

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unclear or uncertain. See Morales v. Calderon, 85 F.3d 1387, 1390-93 (9th Cir.1996). The question of whether a state procedural bar is clear, consistently applied, and well-established is determined as of the time the purported default occurred and not when a state court actually applies the bar to a claim. Fields, 125 F.3d at 760-61.

In Bennett, the Ninth Circuit adopted a new burden-shifting test for determining whether a state procedural bar is adequate. The Ninth Circuit held that

the ultimate burden of proving the adequacy...

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18 practice notes
  • Cornwell v. Warden, No. 2:06-cv-00705 TLN-KJN
    • United States
    • United States District Courts. 9th Circuit. United States District Courts. 9th Circuit. Eastern District of California
    • February 14, 2018
    ...Circuit continued to hold California's timeliness bar inadequate, based on its inconsistent application. See, e.g., Dennis v. Brown, 361 F. Supp. 2d 1124, 1130-34 (N.D. Cal. 2005). In Martin, the United States Supreme Court held that California's timeliness rule is adequate to bar federal h......
  • Roybal v. Davis, Case No. 99cv2152–JM (KSC)
    • United States
    • United States District Courts. 9th Circuit. United States District Court (Southern District of California)
    • December 2, 2015
    ...“Dixon was not being followed in the vast majority of cases at the time of Petitioner's alleged default,” and cites Dennis v. Brown , 361 F.Supp.2d 1124, 1130–31 (N.D.Cal.2005), which in turn noted 200 cases demonstrating inconsistent application of state procedural bars, including Dixon . ......
  • Carpenter v. Ayers, No. C 98-2444 MJJ.
    • United States
    • United States District Courts. 9th Circuit. United States District Courts. 9th Circuit. Northern District of California
    • March 5, 2008
    ...to Clark, the California Supreme Court has not applied the untimeliness bar consistently in capital cases. See, e.g., Dennis v. Brown, 361 F.Supp.2d 1124, 1130-34 (N.D.Cal.2005). Therefore, the bar is inadequate and does not preclude petitioner from pursuing in federal court his claims deni......
  • Lee v. Jacquez, No. 12–56258.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (9th Circuit)
    • June 9, 2015
    ...authority demonstrating inconsistent application of the rule.” Id. The petitioner's burden at this stage is “modest,” Dennis v. Brown, 361 F.Supp.2d 1124, 1130 (N.D.Cal.2005), and the use of unpublished decisions to show the state's 788 F.3d 1129“actual practice” is encouraged, Powell v. La......
  • Request a trial to view additional results
18 cases
  • Cornwell v. Warden, No. 2:06-cv-00705 TLN-KJN
    • United States
    • United States District Courts. 9th Circuit. United States District Courts. 9th Circuit. Eastern District of California
    • February 14, 2018
    ...Circuit continued to hold California's timeliness bar inadequate, based on its inconsistent application. See, e.g., Dennis v. Brown, 361 F. Supp. 2d 1124, 1130-34 (N.D. Cal. 2005). In Martin, the United States Supreme Court held that California's timeliness rule is adequate to bar federal h......
  • Roybal v. Davis, Case No. 99cv2152–JM (KSC)
    • United States
    • United States District Courts. 9th Circuit. United States District Court (Southern District of California)
    • December 2, 2015
    ...“Dixon was not being followed in the vast majority of cases at the time of Petitioner's alleged default,” and cites Dennis v. Brown , 361 F.Supp.2d 1124, 1130–31 (N.D.Cal.2005), which in turn noted 200 cases demonstrating inconsistent application of state procedural bars, including Dixon . ......
  • Carpenter v. Ayers, No. C 98-2444 MJJ.
    • United States
    • United States District Courts. 9th Circuit. United States District Courts. 9th Circuit. Northern District of California
    • March 5, 2008
    ...to Clark, the California Supreme Court has not applied the untimeliness bar consistently in capital cases. See, e.g., Dennis v. Brown, 361 F.Supp.2d 1124, 1130-34 (N.D.Cal.2005). Therefore, the bar is inadequate and does not preclude petitioner from pursuing in federal court his claims deni......
  • Lee v. Jacquez, No. 12–56258.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (9th Circuit)
    • June 9, 2015
    ...authority demonstrating inconsistent application of the rule.” Id. The petitioner's burden at this stage is “modest,” Dennis v. Brown, 361 F.Supp.2d 1124, 1130 (N.D.Cal.2005), and the use of unpublished decisions to show the state's 788 F.3d 1129“actual practice” is encouraged, Powell v. La......
  • Request a trial to view additional results

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