Karis v. Vasquez, No. Civ. S-89-0527 LKK JFM.

• Decision Date: 05 August 1993
• Docket Number: No. Civ. S-89-0527 LKK JFM.
• Citation: 828 F. Supp. 1449
• Court: U.S. District Court — Eastern District of California
• Parties: James Leslie KARIS, Petitioner, v. Daniel VASQUEZ, Warden of the California State Prison at San Quentin; and James Gomez, Director of the California Department of Corrections, Respondents.

828 F. Supp. 1449

James Leslie KARIS, Petitioner, v. Daniel VASQUEZ, Warden of the California State Prison at San Quentin; and James Gomez, Director of the California Department of Corrections, Respondents.

No. Civ. S-89-0527 LKK JFM.

United States District Court, E.D. California.

August 5, 1993.

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Norman C. Hile, Orrick, Herrington & Sutcliffe, Sacramento, CA and Thomas W. Condit, Sallisaw, OK, for petitioner.

Daniel E. Lungren, Atty. Gen. of State of Cal. and William G. Prahl, and James T. McNally, Deputy Attys. Gen., Sacramento, CA, for respondents.

ORDER

KARLTON, Chief Judge Emeritus.

DEATH PENALTY CASE

Petitioner JAMES L. KARIS was convicted and sentenced to death in the El Dorado County Superior Court. He has filed a petition with this court seeking federal habeas corpus, see generally 28 U.S.C. § 2254, which pursuant to Local Rule 191(f) was referred to Chief Magistrate Judge John F. Moulds. The respondents moved to dismiss. They noted that petitioner had sought habeas relief from the California Supreme Court raising the same claims and asserted that the petition was denied on independent and adequate state procedural grounds.

In due course, the magistrate judge filed findings and recommendations concluding that the respondents' motion to dismiss should be denied. The respondents filed objections to the magistrate judge's recommendations, and the petitioner replied. The court disposes of the motion herein. The court believes that the magistrate judge's recommendations are fully supported by the record and the law and, accordingly, will adopt them for the reasons which are explained below.

Because the court believes that Magistrate Judge Moulds' findings and recommendations constitute a detailed and accurate determination of the applicable law, this order adopting them reproduces much of the analysis and even some of the language employed therein.

I PROCEDURAL HISTORY

Subsequent to petitioner's conviction and the entry of a judgment of death, he appealed, through the State Public Defender, to the California Supreme Court. He also simultaneously filed a single issue petition for writ of habeas corpus with that court. The California Supreme Court affirmed the trial court's judgment and denied petitioner's habeas petition. See People v. Karis, 46 Cal.3d 612, 250 Cal.Rptr. 659, 758 P.2d 1189 (1988), cert. denied, 490 U.S. 1012, 109 S.Ct. 1658, 104 L.Ed.2d 172 (1989). After the United States Supreme Court denied his petition for writ of certiorari, petitioner's appellate counsel withdrew from the case.

Petitioner moved this court for appointment of counsel. The court granted the motion and petitioner's new counsels' application for a 120-day stay of execution. See Local Rule 191(h)(2), and see Brown v. Vasquez, 952 F.2d 1164 (9th Cir.1991), cert. denied, ___ U.S. ___, 112 S.Ct. 1778, 118 L.Ed.2d 435 (1992). On March 26, 1990, petitioner filed a petition for writ of habeas corpus and an application for a stay of execution. In an order dated May 1, 1990, the court stayed petitioner's execution until further order of the court. That stay of execution remains in effect. On August 27, 1990, petitioner filed an amended petition.

On August 31, 1990, the magistrate judge held a hearing, attended by petitioner and all counsel, to inquire into the existence of any claims not contained in the amended petition. See Neuschafer v. Whitley, 860 F.2d 1470, 1477-82 (9th Cir.1988), cert. denied, 493 U.S. 906, 110 S.Ct. 264, 107 L.Ed.2d 214 (1989) (Alarcon, J., concurring); see also Ainsworth v. Vasquez, 759 F.Supp. 1467 (E.D.Cal.1991) (en banc). Thereafter, the parties agreed upon the identity of the unexhausted claims in the amended petition. On September 27, 1990, the court stayed these proceedings pending the exhaustion of petitioner's state remedies. See Local Rule 191(h)(5).

Petitioner's first habeas petition was consolidated with his appeal in 1986. State court record ("SCR") at N.¹ According to documents lodged with the court,² petitioner filed his second state habeas petition with the California Supreme Court in July 1991. That court ordered informal briefing on the second petition. After respondents submitted a brief, petitioner filed an amended petition which included a short explanation of the proceedings in this court and added one claim. Without explanation, the California Supreme Court treated this petition as a new, and thus, third petition.³

On October 16, 1991, the California Supreme Court denied petitioner's second state habeas petition with a nine-paragraph minute order (the "October Order"). Respondents' Mem. in Supp. of Mot. to Dismiss, Attach. 1. On February 19, 1992, the court summarily denied the third petition in two lines (the "February Order"). Id., Attach. 2.

On March 2, 1992, petitioner informed the magistrate judge that he had exhausted his state remedies and the federal case was then reopened. Petitioner filed a second amended federal petition on April 3, 1992. On April 30, 1992, respondents filed this motion to dismiss, and on May 8, 1992, filed their answer. As noted above, respondents assert that all of the claims contained in petitioner's second and third state petitions are not cognizable by this court because the California Supreme Court denied those claims on independent and adequate state procedural grounds.

II

STANDARD OF REVIEW OF MAGISTRATE

JUDGE'S FINDINGS AND RECOMMENDATIONS⁴

This court reviews de novo those portions of the proposed findings of fact to which objection has been made. 28 U.S.C. § 636(b)(1); McDonnell Douglas Corp. v. Commodore Business Machines, Inc., 656 F.2d 1309, 1313 (9th Cir.1981), cert. denied, 455 U.S. 920, 102 S.Ct. 1277, 71 L.Ed.2d 461 (1982). As to any portion of the proposed findings of fact to which no objection has been made, the court assumes its correctness and decides the motions on the applicable law. See Orand v. United States, 602 F.2d 207, 208 (9th Cir.1979). All of the magistrate's conclusions of law are reviewed de novo. See Barilla v. Ervin, 886 F.2d 1514, 1518 (9th Cir.1989) (citing Britt v. Simi Valley Unified School Dist., 708 F.2d 452, 454 (9th Cir.1983)).

The court is not bound to adopt the magistrate's findings and recommendations; on the contrary, the court will exercise "sound judicial discretion" in making its own determination on the record. United States v. Raddatz, 447 U.S. 667, 675-76, 100 S.Ct. 2406, 2412-13, 65 L.Ed.2d 424 (1980). The court may accept, reject, or modify, in whole or in part, the magistrate judge's findings or recommendations. 28 U.S.C. § 636(b)(1).

III STANDARDS APPLICABLE TO THE MOTION TO DISMISS

Based on concerns of comity and federalism, federal courts ordinarily will not review a habeas petitioner's claims if a state court decision denying relief premised on those claims rests on a state law ground that is independent of federal law and adequate to support the judgment. Coleman v. Thompson, ___ U.S. ___, ___-___, 111 S.Ct. 2546, 2553-54, 115 L.Ed.2d 640 (1991); Harris v. Reed, 489 U.S. 255, 260-62, 109 S.Ct. 1038, 1041-43, 103 L.Ed.2d 308 (1989). Generally, the only state law grounds meeting these requirements are state procedural rules.⁵

The Ninth Circuit recently addressed the independent and adequate state ground requirement, explaining:

A procedural default is not "independent" if, for example, the state procedural bar depends upon an antecedent determination of federal law. Similarly, the procedural default is not "adequate" if the state courts themselves bypass the petitioner's default and consider his claims on the merits, if the procedural rule appears to be discretionary, or, ordinarily, if the state fails to assert an interest in compliance with its procedural rules in the petitioner's federal habeas proceedings.

Harmon v. Ryan, 959 F.2d 1457, 1461 (9th Cir.1992) (citations omitted). The court went on to note that if a defendant cannot reasonably comply with a state procedural requirement, his noncompliance will not bar federal review:

For example, if under state procedures a criminal defendant cannot obtain a review of his conviction without purchasing a transcript, then an indigent criminal defendant who cannot reasonably afford to pay for his trial transcript will be able to obtain federal habeas relief notwithstanding his failure to seek direct review of his conviction. The basic principle is that failure to follow state procedures will warrant withdrawal of a federal remedy only if those procedures provided the habeas petitioner with a fair opportunity to seek relief in state court.

Id. at 1461-62 (citations omitted); see also Kim v. Villalobos, 799 F.2d 1317, 1321 (9th Cir.1986) (pro se petitioner's inability to comply with state rule requiring claims to be pleaded with particularity does not bar federal review).

Since respondents have asserted procedural default, the court must determine whether the state court decision on each claim rests on state grounds that are independent of federal law and adequate to bar federal review before it may consider petitioner's claims on the merits.⁶

Respondents assert that this court should not consider claims 1, 2, 5-9, 11-14, 17, 18, 22, 25, 26, 28, and 30-33 of the second amended petition because the California Supreme Court relied on state procedural grounds in denying those claims.⁷ Specifically, respondents argue that these claims are barred because: (1) the state court's October Order declares that petitioner failed to explain or justify his delay or his failure to include these claims in his first habeas petition; (2) the October Order bars claims that petitioner should have, but did not, raise on appeal; and (3) the cases cited in the state court's February 1992 Order make clear that the court denied the third petition on the same grounds as the second petition.

Petitioner claims that the February Order was a...