Opinion
No. CIV S-03-1433 ALA HC.
February 4, 2008
ORDER
Pending before the court is Petitioner Tout Saechao's pro se application for a writ of habeas corpus under 28 U.S.C. § 2254.
The parties have not addressed the question of whether the doctrine of adequate and independent state grounds bars our review of Petitioner's challenge to the jury instructions in his State trial, as stated in Grounds I III of his petition. However, a federal court may raise the issue of procedural default sua sponte if doing so furthers the interests of comity, federalism, and judicial efficiency. Boyd v. Thompson, 147 F.3d 1124, 1127 (9th Cir. 1998). Here, Petitioner failed to make a contemporaneous objection to the jury instructions challenged in his federal habeas petition. Petitioner's failure to object may have resulted in a procedural default of any challenge relating to the alleged instructional error, unless the error affects the Petitioner's substantial rights. Cal. Penal Code § 1259; People v. Anderson, 152 Cal. App. 4th 919, 927 (2007) (citing People v. Flood, 18 Cal. 4th 470, 482 n. 7 (1997)). A Petitioner's substantial rights are affected when an instructional error leads to a miscarriage of justice under People v. Watson. People v. Anderson, 152 Cal. App. 4th 919, 927 (Cal.Ct.App. 2007). A miscarriage of justice occurs when the court, after an examination of the entire case, including the evidence, feels that it is reasonably probable that a result more favorable to the appealing party would have been reached in the absence of the error. People v. Watson, 46 Cal. 2d 818, 836 (1956).
CONCLUSION
In accordance with the above, The parties are directed to file, on or before March 3, 2008, simultaneous briefs of no more than ten pages, discussing whether Grounds I and III of Petitioner's petition are procedurally defaulted under the standards discussed above.