Odle v. Calderon, No. C-88-4280-CAL.

• Court: United States District Courts. 9th Circuit. United States District Courts. 9th Circuit. Northern District of California
• Writing for the Court: Dane R. Gillette, State of Cal., Office of Atty. Gen., San Francisco, CA, for respondent
• Citation: 884 F. Supp. 1404
• Parties: James Richard ODLE, Petitioner, v. Arthur CALDERON, in his capacity as Warden of California State Prison at San Quentin, Respondent.
• Docket Number: No. C-88-4280-CAL.
• Decision Date: 29 March 1995

884 F. Supp. 1404

James Richard ODLE, Petitioner,
v.
Arthur CALDERON, in his capacity as Warden of California State Prison at San Quentin, Respondent.

No. C-88-4280-CAL.

United States District Court, N.D. California.

March 29, 1995.

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Walter T. Johnson, Warren W. Wilson, Lillick & Charles, San Francisco, CA, for petitioner

Dane R. Gillette, State of Cal., Office of Atty. Gen., San Francisco, CA, for respondent.

ORDER GRANTING PARTIAL SUMMARY JUDGMENT

LEGGE, District Judge.

DEATH PENALTY CASE

I

Petitioner James Richard Odle is a prisoner of the State of California, in state custody under sentence of death. He first sought habeas relief in this court in 1988. After briefing, argument and review of the state-court record and the applicable legal authorities, the court denied the seven claims in his original petition. See Odle v. Vasquez, 754 F.Supp. 749 (N.D.Cal.1990).

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Odle moved for reconsideration. Before this court ruled on that motion, the United States Supreme Court decided McCleskey v. Zant, 499 U.S. 467, 111 S.Ct. 1454, 113 L.Ed.2d 517 (1991), which substantially limited the ability of habeas petitioners to raise new claims in a subsequent petition. In light of McCleskey, the court allowed Odle to amend his then-pending first petition, which had not become final. Odle then took several years to exhaust his new claims in state court, and then returned to this court with an amended petition raising 56 claims.¹ This order is the first to rule on the merits of the claims in the amended petition.²

II

The case is now before the court on a motion by respondent for summary judgment as to petitioner's claims. The court held a hearing on April 28, 1994, and orally granted summary judgment on claims M, N, R, T, V, X, Y, Z, AA, CC, EE, FF, GG, LL, WW, XX, ZZ and AAA.³

Following that hearing, the parties agreed that certain additional issues could be submitted for decision on the record without oral argument. The court has now considered those issues and grants summary judgment on claims U, W, BB, DD, II, JJ, MM, NN, OO, QQ, RR, SS, TT, UU and BBB as well.

This order states the reasons for this court's decisions.

III

The state asserts, as a basis for summary judgment on numerous claims, that Teague v. Lane, 489 U.S. 288, 109 S.Ct. 1060, 103 L.Ed.2d 334 (1989), precludes federal habeas relief. Specifically, respondent argues that Odle seeks relief that is barred by Teague because it would require this court to apply a new rule of criminal procedure. Odle responds that the state has not met its burden on summary judgment of showing that Teague bars relief on his claims as a matter of law.

The United States Supreme Court held in Teague that new rules of criminal procedure generally may not be announced or applied on federal habeas corpus review. Teague, 489 U.S. at 307, 109 S.Ct. at 1073-74. The Court has developed a three-step analysis to determine whether a petitioner's claim seeks to apply a new rule retroactively. See Caspari v. Bohlen, ___ U.S. ___, ___, 114 S.Ct. 948, 953, 127 L.Ed.2d 236 (1994). First the date on which petitioner's conviction and sentence became final must be determined. Second, the state of the law must be surveyed to determine whether, at the time the conviction became final, a state court "would have felt compelled by existing precedent to conclude that the rule petitioner seeks was required by the Constitution." Saffle v. Parks, 494 U.S. 484, 488, 110 S.Ct. 1257, 1260, 108 L.Ed.2d 415 (1990). Third, if the petitioner seeks to apply a new rule, it must be determined whether the rule comes within either of two narrow exceptions to Teague. It is clear from a review of the cases that have addressed retroactivity that the Teague analysis is complex. See, e.g., Graham v. Collins, ___ U.S. ___, 113 S.Ct. 892, 122 L.Ed.2d 260 (1993); Stringer v. Black, 503 U.S. 222, 112 S.Ct. 1130, 117 L.Ed.2d 367 (1992); Penry v. Lynaugh, 492 U.S. 302, 109 S.Ct. 2934, 106 L.Ed.2d 256 (1989).

Because respondent seeks summary judgment, it carries the burden of proof. To prevail, it must "show that it is entitled to a judgment as a matter of law" on the basis of Teague. Fed.R.Civ.P. 56(c). To make the requisite showing, respondent must conduct the analysis set forth in Caspari and other Supreme Court cases following Teague.

Respondent has determined when Odle's judgment became final for purposes of Teague. See Memorandum of Points and Authorities

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in Support of Motion for Summary Judgment at 11. Beyond that, respondent raises Teague in one or two sentences after discussing the merits of many of Odle's claims.⁴ See e.g., Memorandum of Points and Authorities in Support of Motion for Summary Judgment at 23, 52, 53, 56, 63, 68, 72-77, 93-95. Respondent has not outlined the state of the law relevant to Odle's claims at the relevant time. It has not analyzed the claims it seeks to bar in light of the applicable law at that time. Respondent has not discussed whether Odle's claims fall within either Teague exception

Because respondent has not satisfied this court of its analysis required by Caspari, the state has not met its burden on summary judgment. Its motion on Teague grounds is therefore DENIED without prejudice.

IV

Respondent argues that Odle has procedurally defaulted many of the claims presented in his amended petition. Odle maintains that the claims are not procedurally defaulted and, alternatively, that the procedural rules relied upon by the state do not preclude federal habeas review.

A state procedural rule cannot bar federal habeas review unless it constitutes an independent and adequate basis for the state court's decision. Coleman v. Thompson, 501 U.S. 722, 729, 111 S.Ct. 2546, 2553-54, 115 L.Ed.2d 640 (1991). Whether a state rule satisfies the independent and adequate requirement is a question of federal law. Johnson v. Mississippi, 486 U.S. 578, 587, 108 S.Ct. 1981, 1987, 100 L.Ed.2d 575 (1988).

The California Supreme Court order denying Odle's third habeas petition relied both on the merits and on procedural rules. The order stated, "The court has considered each of the 46 claims raised in the third post-appeal petition in this matter (filed May 8, 1992), and denies the entire petition (i.e., claims "A" through "TT")⁵ on the merits." In re Odle on Habeas Corpus, No. S026511, 1992 Cal. LEXIS 5330 (California Supreme Court, October 28, 1992). In the next four paragraphs of the order, the court issued an alternative procedural ruling, beginning with the statement, "In addition, the court denies claims ..." and concluding with citations to state case law.

Under Coleman, this court may not review the merits of Odle's habeas claims if the state court's alternative procedural holdings set forth an adequate and independent basis for its decision.

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).

(1) Reliance on State Procedural Rules

A federal habeas court may review a claim on the merits unless the state court made a "`clear and express' statement that it relied upon procedural grounds as an alternative holding." Carriger v. Lewis, 971 F.2d 329, 333 (9th Cir.1992) (en banc) (citing Thomas v. Lewis, 945 F.2d 1119, 1122-23 (9th Cir.1991)). When the order denying state habeas relief is ambiguous, a federal court will presume that the decision relied on federal law if it fairly appears to rest primarily on federal law or to be interwoven with federal law. Coleman, 501 U.S. at 735, 111 S.Ct. at 2557; Thomas, 945 F.2d at 1122.

Ninth Circuit law on the independence of alternative procedural holdings, like those at issue in Odle, is still evolving. The circuit has held that the California Supreme

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Court's denial of a habeas petition without comment or citation is a decision on the merits of the federal claims. A federal court may thus review the merits of habeas claims that the California court denies without comment. Hunter v. Aispuro, 982 F.2d 344, 347-48 (9th Cir.1992) (citing Harris v. Superior Court, 500 F.2d 1124, 1128 (9th Cir.1974) (en banc)). On the other hand, when the California Supreme Court denies a habeas petition with a citation to a state procedural rule, it denies the petition on an independent state ground. Hunter, 982 F.2d at 348; Harris at 1128. See also Thomas, 945 F.2d at 1123 (procedural ground is independent when state court discussed Arizona procedural bar then stated, "Even if Thomas' claims were not waived, relief would be denied" and considered claim on merits). But cf. Karis v. Vasquez, 828 F.Supp. 1449, 1459 (E.D.Cal. 1993) (state grounds not independent when the order gave reasons, supported by state-law citations, for the default and addressed claims on the merits)

Following Hunter and Harris, this court concludes that the California Supreme Court's denial of Odle's habeas petition rested on state procedural grounds. As the discussion below indicates, however, the state procedural rule relied upon does not preclude federal habeas review on the merits because the California Supreme Court has not applied the rule in a consistent and uniform manner.

(2) Adequacy of State Procedural Rules

Adequacy requires that the state procedural rule must be clearly applicable, firmly established...