Simpson v. Marshall

• Decision Date: 01 November 2011
• Docket Number: NO. CV 09-1825-JSL (AGR),CV 09-1825-JSL (AGR)
• Court: U.S. District Court — Central District of California
• Parties: ESSIE SIMPSON III, Petitioner, v. JOHN MARSHALL, Respondent.

ESSIE SIMPSON III, Petitioner,

v.JOHN MARSHALL, Respondent.

NO. CV 09-1825-JSL (AGR)

UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA

DATED: November 1, 2011

ORDER RE EXHAUSTION;

ORDER TO SHOW CAUSE

On May 1, 2009, Petitioner filed a First Amended Petition for Writ of Habeas Corpus by a Person in State Custody pursuant to 28 U.S.C. § 2254 ("Petition"). For the reasons discussed below, it appears that Ground Two is procedurally barred.

The court, therefore, orders Petitioner to show cause, on or before December 1, 2011, why this court should not recommend denial of Ground Two based on procedural bar.

I.SUMMARY OF PROCEEDINGS

On July 6, 2007, Petitioner pled guilty to possession of a controlledsubstance (PCP) and admitted a gang enhancement allegation. (Petition at 2; Answer at 1; Lodged Document ("LD") 1; LD 22 at 910.) The trial court sentenced Petitioner to 3 years, 4 months in prison. (Petition at 2; LD 22 at 912.) The court also advised Petitioner he had to register as a gang member. (LD 22 at 913.)

On August 3, 2007, Petitioner filed a motion to withdraw his plea, which was denied on September 14, 2007. (LD 4, 5.) On August 22, 2008, the California Court of Appeal dismissed the appeal. (LD 6.) On October 28, 2008, the California Supreme Court denied the petition for review. (LD 8.)

Petitioner filed a habeas petition in the California Court of Appeal on September 29, 2008 (LD 9) and a motion to amend the petition on October 8, 2008 (LD 10). The petition was denied on October 23, 2008, without explanation (LD 11). On November 3, 2008, Petitioner filed a petition for review of the Court of Appeal's denial of his habeas petition, which was denied on December 17, 2008, without explanation. (LD 12, 13.)

On May 1, 2009, Petitioner filed the Petition in this court in which he raised three grounds: (1, 3) ineffective assistance of counsel; and (2) prosecutorial error during plea advisements. (Petition at 5-6.)

On September 28, 2009, Respondent filed a motion to dismiss based on failure to exhaust. On February 24, 2010, the court found that Ground Two was unexhausted. (Dkt. No. 28 at 2-3.) On April 20, 2010, the court denied Respondent's motion to dismiss without prejudice based on the petition being mixed and stated that the parties' arguments would be preserved for consideration with the merits. (Dkt. No. 32 at 1.)

On September 29, 2010, Respondent filed an answer. On October 21, 2010, Petitioner filed a reply.

II.EXHAUSTION

In the answer, Respondent renews his argument that Ground Two isunexhausted. (Answer at 14.) Revisiting its earlier ruling, the court finds that Ground Two is exhausted.

In his petition for review on direct appeal, Petitioner argued the trial court erred by failing to advise him of the gang registration requirement before he entered his plea. (LD 7 at 6-11.) Here, he argues the prosecutor erred by failing to make the same advisement. (Petition at 5, Memo at 3.) The distinction is immaterial as the prosecutor took the waivers at the direction of the trial court. (LD 22 at 903.) After the waivers were completed and the prosecutor also took Petitioner's plea, the trial court stated: "The court has heard the defendant questioned concerning his constitutional rights. The court finds that the defendant has expressly, knowingly, understandingly [sic], and intelligently waived his constitutional rights. [¶] The court finds that the defendant's pleas and admissions are freely and voluntarily made with an understanding of the nature and consequences thereof and that there is a factual basis for the plea and admissions, and the court accepts the same." (Id. at 911.) Therefore, the prosecutor was acting at the behest and in the presence of the trial court. See, e.g., In re Williams, 83 Cal. App. 4th 936, 940, 100 Cal. Rptr. 2d 144 (2000) ("The prosecutor then proceeded to take the required waivers from petitioner and petitioner than enter a plea of guilty and admitted one prior."); People v. Chaklader, 24 Cal. App. 4th 407, 410-11, 29 Cal. Rptr. 2d 344 (1994) (same); People v. Hightower, 224 Cal. App. 3d 923, 926-27, 274 Cal. Rptr. 201 (1990) (same). Accordingly, the California Court of Appeal opinion is the last reasoned decision under Davis v. Grigas, 443 F.3d 1155, 1158 (9th Cir. 2006).

III.PROCEDURAL BAR

In Trest v. Cain, 522 U.S. 87, 90, 118 S. Ct. 478, 139 L. Ed.2d 444 (1997), the Supreme Court left open the question "whether, or just when, a habeas court may consider a procedural default that the State at some point has waived, orfailed to raise." In the Ninth Circuit, a district court "has discretion to raise procedural default sua sponte to further the interests of comity, federalism, and judicial efficiency." Boyd v. Thompson, 147 F.3d 1124, 1128 (9th Cir. 1998). "A habeas court must give a petitioner notice of the procedural default and an opportunity to respond to the argument for dismissal." Id.

A. Legal Standard

"A federal court will not review questions of federal law decided by a state court if the decision also rests upon a state law ground that is independent of the federal question and adequate to support the judgment." Melendez v. Pliler, 288 F.3d 1120, 1124 (9th Cir. 2002) (citing Coleman v. Thompson, 501 U.S. 722, 729-30, 111 S. Ct. 2546, 115 L. Ed. 2d 640 (1991)); see also Walker v. Martin, 131 S. Ct. 1120, 1127, 179 L. Ed. 2d 62 (2011). To be "independent," the state rule must not be interwoven with federal law. Coleman, 501 U.S. at 733; see Park v. California, 202 F.3d 1146, 1151 (9th Cir. 2000). The "adequacy of [the state law ground] to foreclose review 'is itself a federal question.'" Melendez, 288 F.3d at 1124 (quoting Douglas v. Alabama, 380 U.S. 415, 422, 85 S. Ct. 1074, 13 L. Ed. 2d 934 (1965)). "To be 'adequate,' the state procedural bar must be 'clear, consistently applied, and well-established at the time of the petitioner's purported default.'" Id. (citation omitted); see also Beard v. Kindler, 130 S. Ct. 612, 617-18, 175 L. Ed. 2d 417 (2009) (a "state procedural ruling is adequate [if it was] firmly established and regularly followed") (citations and quotation marks omitted).

However, a procedural fault may be excused if a petitioner "can demonstrate cause and prejudice for the procedural default" or "demonstrate that failure to consider the claims will result in a fundamental miscarriage of justice." Dretke v. Haley, 541 U.S. 386, 393, 124 S. Ct. 1847, 158 L. Ed. 2d 659 (2004); Coleman v. Thompson, 501 U.S. 722, 750, 111 S. Ct. 2546, 115 L. Ed. 2d 640 (1991).

"'[C]ause' under the cause and prejudice test must be something external to the petitioner, something that cannot fairly be attributed to him." Coleman, 501 U.S. at 753 (emphasis in original).

In United States v. Faraday, 456 U.S. 152, 102 S. Ct. 1584, 71 L. Ed. 2d 816 (1982), the Supreme Court articulated the standard for "actual prejudice" when a defendant seeks collateral relief "based on trial errors to which no contemporaneous objection was made." Id. at 167-68. The petitioner must show "'actual prejudice' resulting from the errors of which he complains." Id. at 168. "[H]e must shoulder the burden of showing, not merely that the errors at his trial created a possibility of prejudice, but that they worked to his actual and substantial disadvantage, infecting his entire trial with error of constitutional dimensions." Id. at 170 (emphases in original); White v. Lewis, 874 F.2d 599, 603 (9th Cir. 1989) (quoting Frady); see also Vansickel v. White, 166 F.3d 953, 961 (9th Cir. 1999) ("in view of his counsel's procedural default . . . to establish prejudice Vansickel must prove that his counsel's error actually affected the outcome of the proceeding").

A "fundamental miscarriage of justice" means that "'a constitutional violation has probably resulted in the conviction of one who is actually innocent.'" Schlup v. Delo, 513 U.S. 298, 321, 115 S. Ct. 851, 130 L. Ed. 2d 808 (1995) (quoting Murray v. Carrier, 477 U.S. 478, 496, 106 S. Ct. 2639, 91 L. Ed. 2d 397 (1986)).

B. Plea and Sentencing

On July 6, 2007, Petitioner pled no contest and was sentenced. (LD 22 at 901 et seq.) The trial court asked the prosecutor to take the waivers. (Id. at 903.) After the prosecutor completed the waivers, he asked the trial court if it "wish[ed] to inquire further." (Id. at 908.) The court asked Petitioner if he had "any questions for your lawyer," and Petitioner said, "Yes." (Id.) An off-the-record discussion then occurred between Petitioner and his counsel. (Id.) The trial courtthen asked Petitioner's counsel if he was ready to proceed, and counsel said he was, but another off-the record discussion then occurred between Petitioner and his counsel. (Id. at 909.) After the second discussion, the court asked Petitioner if he was ready to proceed, and Petitioner said he was. (Id.) The prosecutor then advised Petitioner of the consequences of future strikes. (Id. at 909-10.)

The prosecutor took Petitioner's plea. (Id. at 910 et seq.) Petitioner pled no contest to possession of PCP for sale. (Id. at 910.) Petitioner admitted that he committed the offense "for the benefit of, in connection with, or in association with a criminal street gang." (Id.) Petitioner's counsel joined in the plea and stipulated to a factual basis. (Id.) Petitioner admitted that he was on probation in two other cases, and that as a consequence of his no contest plea, he was in violation of his probation in those cases. (Id. at 910-11.) Counsel joined. (Id. at 911.)

The court accepted the plea and sentenced Petitioner. (Id. at 911 et seq.) The court sentenced Petitioner to 3 years, four months in prison. (Id. at 912.) The court stated that Petitioner was not permitted to "own, use, threaten to use, possess, buy or sell any deadly or dangerous weapons." (Id. at 913.) The court ordered petitioner to register as a controlled substance offender. (Id.) The court ordered Petitioner to register as a gang member. (Id.)¹ The court ordered Petitioner to provide DNA...