Protsman v. Pliler

• Citation: 318 F.Supp.2d 1004
• Decision Date: 13 April 2004
• Docket Number: No. 02-CV-1601 W(POR).,02-CV-1601 W(POR).
• Court: U.S. District Court — Southern District of California
• Parties: Eugene PROTSMAN, Petitioner, v. Cheryl K. PLILER, Warden, Respondent.

318 F.Supp.2d 1004

Eugene PROTSMAN, Petitioner, v. Cheryl K. PLILER, Warden, Respondent.

No. 02-CV-1601 W(POR).

United States District Court, S.D. California.

April 13, 2004.

Eugene Protsman, Lancaster, CA, pro se.

Attorney General, State of California Office of the Attorney General, San Diego, CA, for Respondents.

ORDER ADOPTING REPORT AND RECOMMENDATION

WHELAN, District Judge.

On August 9, 2002 Petitioner Eugene Protsman ("Petitioner"), a state prisoner proceeding pro se, commenced 28 U.S.C. § 2254 habeas proceedings. On November 20, 2002 Respondent Cheryl K. Pliler ("Respondent") moved to dismiss the Petition as unexhausted and procedurally barred.

On October 14, 2003 United States Magistrate Judge Louisa S. Porter issued a Report and Recommendation ("Report"), recommending that Respondent's motion to dismiss Claim One as unexhausted be denied, but that the Court dismiss Claim Two as procedurally barred. On December 30, 2003 Petitioner filed objections to the Report.

The Court decides the matter on the papers submitted and without oral argument. See Civil Local Rule 7.1(d.1). For the reasons outlined below, the Court adopts the Report and DENIES Respondent's motion to dismiss for failing to exhaust state remedies, and GRANTS Respondent's motion to dismiss Claim Two as procedurally barred.

I. BACKGROUND

A jury found Petitioner guilty of first degree murder. The jury also found present the special circumstance of robbery and a deadly weapon enhancement. On May 24, 1999 Petitioner received life in prison without parole. Petitioner appealed on the sole basis that the trial court improperly excluded expert testimony. On March 13, 2001 the Court of Appeal affirmed. Petitioner then filed a petition for review with the California Supreme Court, raising the same issue. On June 13, 2001 the California Supreme Court denied the petition for review.

On January 16, 2002 Petitioner sought habeas relief in the California Supreme Court. In the petition, Petitioner claimed that the admission of incriminating statements violated the Fifth and Fourteenth Amendments. On May 1, 2002 the Court denied the petition without comment, "[the] Petition for writ of habeas corpus is DENIED. (In re Dixon (1953) 41 Cal.2d 756, 759, 264 P.2d 513)." On August 9, 2002 Petitioner commenced these federal habeas proceedings. The government now seeks to dismiss.

II. LEGAL STANDARD

The duties of the district court in connection with a magistrate judge's report and recommendation are set forth in Rule 72(b) of the Federal Rules of Civil Procedure and 28 U.S.C. § 636(b)(1). The district court "must make a de novo determination of those portions of the report ... to which objection is made," and "may accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate." 28 U.S.C. § 636(b)(1)(C); see also United States v. Remsing, 874 F.2d 614, 617 (9th Cir.1989); United States v. Raddatz, 447 U.S. 667, 676, 100 S.Ct. 2406, 65 L.Ed.2d 424 (1980). If neither party contests the magistrate's findings of fact, "the district court may assume their correctness and decide the matter on the applicable law." Remsing, 874 F.2d at 617.

III. ANALYSIS

Having read and considered the papers submitted, including Petitioner's objections, the Court concludes that the Report presents a well-reasoned analysis of the issues raised. The Report correctly determined that Petitioner has exhausted state remedies with respect to Claim One. Neither Petitioner nor Respondent have filed objections contesting this conclusion, and the Court adopts the Report's finding. thereon. Accordingly, the Court denies Respondent's motion to dismiss Claim One. However, the Court further agrees with the Report's conclusion that Claim Two is procedurally barred such that dismissal is warranted.

Petitioner' second claim for relief is that incriminating statements were admitted as evidence against him in violation of the Fifth and Fourteenth Amendments. The Report determined this claim is procedurally barred based on the California Supreme Court's citation to In re Dixon, 41 Cal.2d 756, 264 P.2d 513 (1953) in its postcard denial.

The procedural default doctrine provides that "[w]hen a state prisoner has defaulted a claim by violating a state procedural rule which would constitute adequate and independent grounds to bar direct review in the U.S. Supreme Court, he may not raise the claim in federal habeas" absent a showing of cause and prejudice. Wells v. Maass, 28 F.3d 1005, 1008 (9th Cir.1994). Accordingly, a state prisoner who does not satisfy the state procedural requirements gives up his right to present his federal claim in federal habeas. Murray v. Carrier, 477 U.S. 478, 485-92, 106 S.Ct. 2639, 91 L.Ed.2d 397 (1986). 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 claim and adequate to support the judgment.

A. INDEPENDENT STATE LAW GROUNDS

First, this Court must determine whether the California Supreme Court's decision denying Petitioner's habeas petition rested solely on state law grounds. For a state procedural rule to be "independent," the state law ground must not be "interwoven with the federal law." Michigan v. Long, 463 U.S. 1032, 1040-41, 103 S.Ct. 3469, 77 L.Ed.2d 1201 (1983). If the state ground is interwoven with federal law, then it may fairly be said that the state examined the federal claim. Park v. California, 202 F.3d 1146, 1152 (9th Cir.2000). A state law ground is interwoven with federal law if the state has made the application of the procedural bar dependant on an antecedent ruling of federal law. Id. An example of such an antecedent ruling would be the determination of whether federal constitutional error has been committed. Id.

Here, when denying Petitioner's writ of habeas corpus, the California Supreme Court cited to In re Dixon, 41 Cal.2d 756, 759, 264 P.2d 513 (1953). The Court specifically provided a pinpoint cite which provides that "[t]he general rule is that habeas corpus cannot serve as a substitute for an appeal, and, in the absence of special circumstances constituting an excuse for failure to employ that remedy, the writ will not lie where the claimed errors could have been, but were not, raised upon a timely appeal from a judgment of conviction." Id. at 759, 264 P.2d 513. Thus, the state procedural bar lies when a petitioner fails to raise the habeas issue in his or her direct appeal. Subsequently, the California Supreme Court identified four exceptions to the Dixon rule, one of which applies when there is a "fundamental constitutional error." In re Harris, 5 Cal.4th 813, 829-30, 21 Cal.Rptr.2d 373, 855 P.2d 391 (1993).

Prior to the California Supreme Court's In re Robbins decision, 18 Cal.4th 770, 77 Cal.Rptr.2d 153, 959 P.2d 311 (1998), the Ninth Circuit consistently held that in determining whether Dixon's "fundamental constitutional error" exception applies, the state must necessarily look to federal law. Park, 202 F.3d at 1152. In fact, Harris held that fundamental constitutional error implicates "the individual's right ... to a fair trial under both the state and federal Constitutions." In a later case, the California Supreme Court stated, "[w]hen, in our orders, we impose the bars of Dixon ... this signifies that we have concluded that none of the four exceptions set out in In re Harris apply." Robbins, 18 Cal.4th at 815, 77 Cal.Rptr.2d 153, 959 P.2d 311. Therefore, in deciding whether "fundamental constitutional rights" include federal-law issues, the denial of a habeas petition citing to Dixon is not independent of federal law and does not preclude federal habeas review.

However, this does not end the inquiry. In 1998, the California Supreme Court clarified that it now declines to consider federal law when determining whether claims are procedurally defaulted. Robbins, 18 Cal.4th at 811-12, 77 Cal.Rptr.2d 153, 959 P.2d 311. The Court stated that if it finds a claim is procedurally defaulted, it will do so solely upon state law grounds. Id. After reaching this holding the Court went on to say, "[w]e are aware that federal courts will not honor bars that rest `primarily' on resolution of the merits of federal claims, or that are `interwoven' with such claims." Id. at n. 32. Thus, the California Supreme Court made it explicitly clear that it will deny habeas claims as procedurally defaulted independent of federal law.

The Ninth Circuit has yet to decide whether a post-Robbins application of the Dixon rule is independent of federal law. See Park, 202 F.3d at 1153. However, the Ninth Circuit recently held that after Robbins, California's untimeliness procedural bar was independent of federal law. Bennett v. Mueller, 322 F.3d 573 (9th Cir.2003). Like the Dixon rule prior to Robbins, California courts had routinely considered the federal constitutional merits of claims when deciding whether to apply exceptions to the untimeliness bar. The Bennett court noted that after Robbins, California courts can no longer consider federal law in making an untimeliness determination. Id. Thus, the Ninth Circuit concluded that a post-Robbins application of the untimeliness rule is now independent of federal law. Id. at 581-82.

This Court agrees that the rationale employed in Bennett also applies to the application of the Dixon bar. Like the untimeliness bar, Robbins held that California courts can no longer consider federal law when determining if the Dixon bar applies. It follows that California's procedural bar now rests on independent state law grounds unless noted otherwise. Because Petitioner was convicted after Robbins was issued, the California Supreme Court must have only looked to state law in deciding that Petitioners's claim two was barred by Dixon. The application of the Dixon bar in this case was not "interwoven with federal law" and accordingly, the Court finds that the ...