Opinion
No. C 00-3851 SI (pr)
November 11, 2002
JUDGMENT
The petition for writ of habeas corpus is denied as procedurally barred.
ORDER DENYING PETITION FOR WRIT OF HABEAS CORPUS INTRODUCTION
This habeas action under 42 U.S.C. § 2254 is now before the court for consideration of Gregory Wayne Williams' petition for writ of habeas corpus. For the reasons discussed below, the petition will be denied as procedurally barred.
BACKGROUND
On January 30, 1997, Williams was stopped by a Mountain View police officer for a traffic violation. When he flunked field sobriety tests, Williams was arrested and taken to the Mountain View Police Department. While Williams was being booked at the police station, a police officer found an off-white rock-like substance that appeared to be cocaine base in William's shoe. The substance was tested and found to contain cocaine base.
Williams pled guilty and was convicted of possession of cocaine base and driving under the influence of alcohol and was found to have suffered prior convictions. In 1997, he was sentenced to a term of 25 years to life imprisonment under California's Three Strikes Law, Cal. Penal Code §§ 667(b)-(i), 1170.12. Williams appealed. The California Court of Appeal affirmed the judgment of conviction. The California Supreme Court denied his petition for review on August 18, 1999.
Williams also filed several unsuccessful state habeas petitions. The timing and contents of the first two state habeas petitions are crucial to resolution of his federal petition.
About three months after his direct appeal concluded, Williams filed a state habeas petition in the Santa Clara County Superior Court on November 10, 1999 in which he asserted that the trial court applied the Three Strikes law in his case in violation of the Ex Post Facto Clause and the Due Process Clause of the Fourteenth Amendment to the U.S. Constitution, and that the state violated his plea agreement. He did not assert a claim for ineffective assistance of trial or appellate counsel in the habeas petition. The superior court denied the habeas petition on November 23, 1999, explaining that habeas corpus would not serve as a second appeal and that habeas relief was not available for claims previously raised and rejected on direct appeal. The court also noted that the claims would have been rejected on the merits even if they had been brought up on appeal.
Williams filed a second petition for writ of habeas corpus in the Santa Clara County Superior Court on February 24, 2000. In the second petition, Williams asserted that he had received ineffective assistance of trial counsel and ineffective assistance of appellate counsel. He attempted to explain his delay by stating that he had been unaware of these issues due to his appellate counsel's failure to present these issues on direct appeal and argued that he was innocent. On February 29, 2000, the Santa Clara County Superior Court denied the habeas petition. The court noted that the judgment of conviction had been affirmed on appeal and that an earlier habeas petition had been denied on the ground that the claims raised in that first habeas petition could have and should have been raised on appeal. The court then dealt with the new ineffective assistance claims:
According to our California Supreme Court in In re Clark (1993) 5 Cal.4th 750: [¶] "It has long been the rule that absent a change in the applicable law or the facts, the court will not consider repeated applications or habeas corpus considering claims previously rejected. [Citations] The court has also refused to consider newly presented grounds for relief which were known to the petitioner at the time of a prior collateral attack on the judgment. [Citation] The rule was stated clearly in In re Connor, supra, 16 Cal.2d 701, 705: "In this state a defendant is not permitted to try out his contentions piecemeal by successive proceedings attacking the validity of the judgment against him." (At pp. 767-768.)
Petitioner's last petition of habeas corpus was filed in or about November, 1999, six months after the Sixth District had affirmed his judgment. Petitioner knew or should have known of he had a claim for ineffective assistance of counsel, of both trial and appellate counsel. Therefore, Petitioner's ineffective assistance of counsel claim raised in this petition for writ of habeas corpus is untimely. Petitioner has not sufficiently explained the reason for the delay or that reason that "these claims [were] unknown to him at the time . . . ." (See p. 5 of current writ petition).
Resp. Exh. P, at 2 (citations omitted and brackets, emphasis and parentheses as in original). In short, the Santa Clara Superior Court imposed the Clark bar against piecemeal habeas petitions and refused to reach the merits of Williams' ineffectiveness claims.
Following the denial of his second habeas petition in the Santa Clara County Superior Court, Williams filed a petition for writ of habeas corpus in the California Court of Appeal, again asserting ineffective assistance of trial and appellate counsel claims. He also claimed actual innocence and new evidence as to appellate counsel's alleged ineffectiveness. The California Court of Appeal on May 1, 2000 denied the petition summarily and without citation to authority.
On May 12, 2000, Williams filed a petition for writ of habeas corpus in the California Supreme Court, again asserting ineffective assistance of trial and appellate counsel claims. He also attempted to excuse the Clark bar imposed by the Santa Clara County Superior Court: he argued that the Santa Clara County Superior Court had abused its discretion in imposing the Clark bar, that he could show cause and prejudice for the delay (apparently ineffective assistance of appellate and trial counsel as well as limited law library access due to prison lockdowns), that there was a miscarriage of justice, that he was innocent and that there was newly discovered evidence relating to the claims. On August 30, 2000, the California Supreme Court denied the habeas petition summarily and without citation to authority.
Williams filed his federal habeas petition on October 18, 2000. He asserted claims for ineffective assistance of trial and appellate counsel. He later unsuccessfully attempted to amend his petition to add an Eighth Amendment claim.
DISCUSSION
A. The Procedural Bar
A federal court will not review questions of federal law decided by a state court if the decision also 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, 729-30 (1991). "The doctrine applies to bar federal habeas when a state court declined to address a prisoner's federal claims because the prisoner had failed to meet a state procedural requirement." Id. Federal habeas review of the procedurally defaulted claims is barred unless the prisoner can demonstrate cause for the default and actual prejudice as a result of the alleged violation of federal law, or demonstrate that failure to consider the claims will result in a fundamental miscarriage of justice. Id. at 750. The state court's rejection of Williams' habeas petition with citation to Clark requires this court to determine whether the procedural bar against piecemeal litigation of habeas claims ought to be honored here. To make that determination, this court considers whether the Clark bar is adequate and independent and, if so, whether there is a reason (e.g., cause and prejudice or a fundamental miscarriage of justice) not to honor that bar.
The California Supreme Court and the California Court of Appeal did not cite Clark or any other authority when they denied Williams' habeas petitions. Their unexplained denial of Williams' petition does not end the matter because there is a presumption that, where the last reasoned opinion on a claim expressly imposed a procedural bar, a later state court decision summarily rejecting the claim did not silently disregard the bar and consider the merits. See Ylst v. Nunnemaker, 501 U.S. 797, 803 (1991). There is no evidence, let alone strong evidence, to rebut the "look through" presumption in Williams' case. See id. at 804. Using the Ylst "look through" presumption in Williams' case brings one to the Santa Clara County Superior Court's rejection of Williams' second habeas petition, because it was the last reasoned opinion on the ineffectiveness claims. The question then is whether the Clark bar imposed by the Santa Clara County Superior Court is adequate and independent to support the judgment.
To be "adequate" the state procedural bar cited must be "clear, consistently applied, and well-established at the time of the petitioner's purported default." Calderon v. United States Dist. Court (Bean), 96 F.3d 1126, 1129 (9th Cir. 1996) (internal quotations and citation omitted), cert. denied, 520 U.S. 1204 (1997).
The Clark bar was adequate because it was clear, consistently applied, and well-established at the time of Williams' default. Clark was decided before Williams even committed his current offense. Although California's rule against piecemeal presentation of claims in successive habeas petitions was not consistently applied before Clark, the Clark decision was "intended to reestablish California's procedural rules governing state habeas petitions and clearly define and limit the applicable exceptions." Fields v. Calderon, 125 F.3d 757, 763-64 (9th Cir. 1997), cert. denied, 523 U.S. 1132 (1998); see also Siripongs v. Calderon, 35 F.3d 1308, 1318 (9th Cir. 1994), cert. denied, 513 U.S. 1183 (1995) (Clark announced strict new standards for California procedural bars). The California Supreme Court made that explicit in In re Robbins, 18 Cal.4th 770, 788 n. 9 (Cal. 1998), when it explained that "Clark serves to notify habeas corpus litigants that we shall apply the successiveness rule when we are faced with a petitioner whose prior petition was filed after the date of finality of Clark." Both Clark and Robbins were on the books before Williams finished his direct appeal and before he filed his first state habeas petition in November 1999 in which he raised other claims but did not assert any ineffective assistance of counsel claims. The Clark bar, as used by the Santa Clara Superior Court in rejecting Williams' second petition, was an adequate state procedural rule for denying relief.
The procedural bar must also be independent to be recognized by a federal habeas corpus court. To be independent, the state law basis for the decision must not be interwoven with federal law. See Bennett v. Mueller, 296 F.3d 752, 758 (9th Cir. 2002). Before the Robbins decision in August 1998, California's procedural bars were not independent of federal law when the state court would allow exceptions to the procedural bar for claims involving "fundamental constitutional error." Park v. California, 202 F.3d 1146, 1152 (9th Cir.), cert. denied, 531 U.S. 981 (2000). The Clark bar was one of those bars where a claim involving fundamental constitutional error could be considered under an exception to the procedural bar. Id. at 1152 n. 3. Before Robbins, the Clark bar was not independent of federal law. But Robbins changed that by determining that thereafter the California court would not decide whether the alleged error actually constituted a federal violation in applying a procedural bar. Robbins. 18 Cal.4th at 811-12. From the Robbins decision forward, whenever California courts apply the first three exceptions to the Clark bar (i.e., error of constitutional magnitude, actual innocence, and imposition of a death sentence based upon a grossly misleading profile of the petitioner), they do so exclusively by reference to state laws. Robbins, 18 Cal.4th at 812 n. 32. Only when state courts apply the fourth exception to the Clark bar (i.e., the petitioner was convicted or sentenced under an invalid statute) do they make their decisions with reference to federal law. Id. Although Clark's holding was based on a timeliness analysis (because the rule against piecemeal litigation had not been enforced consistently before then), the rules applied therein appear to apply equally to rejection of a petition as piecemeal as rejection of a petition as untimely. In Williams' case, there is no suggestion that the state court considered federal law in reaching its decision to impose the Clark bar. The state court's decision rested on an independent and adequate state procedural bar.
Respondent has met his burden of proving the adequacy of a state procedural bar. Bennett v. Mueller, 296 F.3d at 763. He "adequately pled the existence of an independent and adequate state procedural ground as an affirmative defense," and that shifted to the petitioner "the burden to place that defense in issue." Id. Petitioner did not satisfy his burden, which he could have done by making specific factual allegations demonstrating the "the inadequacy of the state procedure, including citation to authority demonstrating inconsistent application of the rule." Id. Because respondent met his burden, and petitioner did not, the procedural bar will be imposed absent an exception to it.
B. Exceptions To The Procedural Bar
The United States Supreme Court has erected various barriers to the federal judiciary's review of the merits of claims that state prisoners previously presented to the federal courts for resolution, failed to raise in their first federal habeas petitions, or failed properly to present to the state courts. As relevant here, unless the habeas petitioner shows cause and prejudice, therefore, the court may not reach the merits of procedurally defaulted claims in which the petitioner failed to follow applicable state procedural rules in raising the claims. See Sawyer v. Whitley, 505 U.S. 333, 338 (1992) (citations omitted). The cause standard requires the petitioner to show that "some objective factor external to the defense" impeded his efforts to comply with the state's procedural rule. See Murray v. Carrier, 477 U.S. 478, 488 (1986). A petitioner may show cause by establishing constitutionally ineffective assistance of counsel, but attorney error short of constitutionally ineffective assistance of counsel does not constitute cause and will not excuse a procedural default. McCleskey v. Zant, 499 U.S. 467, 494 (1991); Murray, 477 U.S. at 486-88. To satisfy the prejudice part of the cause and prejudice test, the petitioner must show actual prejudice resulting from the errors of which he complains. See McCleskey, 499 U.S. at 494.
Williams argues that the ineffectiveness of trial and appellate counsel amounts to cause for the default. The argument fails because Williams does not link the alleged ineffectiveness to his particular default. If one only wanted an excuse for the failure to assert the ineffectiveness claims on direct appeal, Williams' argument would have more force — but that is not the issue here. Rather, to avoid the bar on piecemeal habeas petitions, Williams had to explain why he failed to assert the ineffectiveness claims in his first habeas petition and waited until his second habeas petition to do so. He did not adequately explain that failure. Williams had no constitutional right to counsel after the conclusion of his direct appeal, and therefore cannot blame counsel for his failure to allege their ineffectiveness in his first state habeas. See Ortiz v. Stewart, 149 F.3d 923, 932 (9th Cir. 1998), cert. denied, 526 U.S. 1123 (1999). The alleged ineffectiveness of counsel does not provide cause for Williams' default.
Williams next argues that he was unaware of the ineffectiveness claims until a jailhouse lawyer alerted him to them. He apparently, however, admits to having suspicions about the claims. See Petition, "Standard of Review" attachment at p. 3. Williams does not explain why, with the exercise of reasonable diligence, he could not have discovered the claims sooner and included them in his first state habeas petition. His ignorance is not an "objective factor external to the defense," Murray, 477 U.S. at 488, that impeded his ability to raise his ineffectiveness claims in his first state habeas petition. Williams' ignorance does not provide an excusable cause for the default. See Hughes v. Idaho State Bd. of Corrections, 800 F.2d 905, 909 (9th Cir. 1986) (illiteracy of pro se petitioner not sufficient to meet cause standard of procedural bar); see also Tacho v. Martinez, 862 F.2d 1376, 1381 (9th Cir. 1988) (mental condition of pro se petitioner and reliance upon allegedly incompetent jailhouse lawyers did not constitute cause).
Williams also does not show cause for the default by generally blaming his ignorance on prison lockdowns because he has not provided any particulars about the duration of the lockdowns, how those lockdowns were extraordinary and how they were the proximate cause of his inability to raise his ineffectiveness claims in his first state habeas petition. The fact that he did manage to file a habeas petition during the time period in question, albeit raising claims other than the ineffectiveness claims, makes his lockdown argument particularly unpersuasive.
Williams also contends that there is newly discovered evidence. He does not identify the newly discovered evidence, but it appears that he means that he newly discovered the legal significance of counsel's deficiencies of which he already was aware. The failure to discover the legal significance of known facts does not provide legal cause for the delayed presentation of the ineffectiveness claims. Cf. Sperling v. White, 30 F. Supp.2d 1246, 1254 (C.D. Cal. 1998).
Because Williams cannot be helped by the cause and prejudice exception to the procedural default rule, the court considers whether the ineffectiveness claims ought to be considered under the miscarriage of justice exception to the procedural default rule. That exception allows a federal court to hear the merits of the procedurally defaulted claims if the failure to hear the claims would constitute a "miscarriage of justice." See Sawyer, 505 U.S. at 339-40 (citations omitted). In the federal habeas context, the "miscarriage of justice" exception is limited to-habeas petitioners who can show that "a constitutional violation has probably resulted in the conviction of one who is actually innocent." Schlup v. Delo, 513 U.S. 298, 327 (1995) (citing Murray v. Carrier, 477 U.S. at 496). The required evidence must create a colorable claim of actual innocence, that the petitioner is innocent of the charge for which he is incarcerated, as opposed to legal innocence as a result of legal error. Id. at 321. It is not enough that the evidence show the existence of reasonable doubt, petitioner must show "that it is more likely than not that no `reasonable juror' would have convicted him." Id. at 329.
Williams does not even come close to showing actual innocence. His mere assertion of innocence without any supporting evidence does not overcome the procedural default. "To be credible, such a claim requires petitioner to support his allegations of constitutional error with new reliable evidence — whether it be exculpatory scientific evidence, trustworthy eyewitness accounts, or critical physical evidence — that was not presented at trial." Schlup, 513 U.S. at 324. Although most of the authorities cited contemplate the existence of a first trial for the petitioner later claiming to be actually innocent, the court need not dwell on the particulars of how such authority should be adjusted to cases where (as here) the petitioner pled no contest and did not have a trial because under any interpretation of the cases, Williams loses because of the complete absence of factual support of any sort to show he is innocent. He has not pointed to any particular evidence (or absence of evidence) that would lead reasonable jurors to acquit him or to find the allegations of his prior convictions untrue. He argues at one point that counsel should have made the government prove that the white rock substance found in his shoe was crack cocaine and not base cocaine, but that would not establish innocence of drug possession. See Petition, "Continues of Ground E (Attached Argument)" at p. 8. He also argues that the 1986 prior robbery conviction should have been stricken because the gun use allegation was incorrect in that the prosecution failed to prove personal use of the weapon and the 1975 robbery with a knife was not a serious violent felony, but those arguments, too, would not show innocence of an allegation that one suffered prior robbery convictions. See Petition, "Continues of Points And Authorities (Ground 5)" attachment at p. 13. Williams simply has not shown the actual innocence that must exist for the miscarriage of justice exception to apply. Williams' procedural default will not be excused under the miscarriage of justice exception.
CONCLUSION
Williams' ineffective assistance of counsel claims were rejected by the state court because they were presented in a piecemeal fashion, in violation of California's procedural rule against piecemeal habeas petitions. There is no reason not to honor the procedural bar imposed by the state court. Accordingly, the court will not reach the merits of the claims. The petition for writ of habeas corpus is DENIED as procedurally barred. The clerk shall close the file.
JUDGMENT IN A CIVIL CASE
[ ] Jury Verdict. This action came before the Court for a trial by jury. The issues have been tried and the jury has rendered its verdict.
[X] Decision by Court. This action came to trial or hearing before the Court. The issues have been tried or heard and a decision has been rendered.
IT IS ORDERED AND ADJUDGED
1. Plaintiff's motion for summary judgment is hereby GRANTED.
2. Defendant's cross-motion for summary judgment is hereby DENIED.
3. This matter is hereby REMANDED for further administrative proceedings consistent with this decision.