Opinion
Case No. CV 14-8070 R (AFM)
03-16-2016
JOHNNY WILLIS, Petitioner, v. WILLIAM L. MUNIZ, Warden, Respondent.
ORDER ACCEPTING FINDINGS AND RECOMMENDATIONS OF UNITED STATES MAGISTRATE JUDGE
Pursuant to 28 U.S.C. § 636, the Court has reviewed the Petition, records on file and the Amended Report and Recommendation of United States Magistrate Judge. Further, the Court has engaged in a de novo review of those portions of the Report to which objections have been made.
In the Objections, respondent reiterates her position that Ground Two (Eighth Amendment violation) is procedurally defaulted because the state court rejected this claim under the rule of In re Dixon, 41 Cal. 2d 756, 759 (1953) ("[H]abeas corpus cannot serve as a substitute for an appeal."). When respondent first raised this defense, however, she did not account for the Ninth Circuit's decision in Lee v. Jacquez, 788 F.3d 1124, 1134 (9th Cir. 2015), which held that the state had failed to prove the adequacy of the Dixon rule. Therefore, respondent failed to adequately plead the existence of an independent and adequate state procedural ground, and petitioner was relieved of his burden of placing that defense in issue. See Bennett v. Mueller, 322 F.3d 573, 586 (9th Cir. 2003); see also McKinney v. Chappell, 610 F. App'x 630, 631 (9th Cir. 2015) (noting that California "has never shown Dixon's adequate application" and finding that after Lee, it was not petitioner's burden to prove Dixon's inadequacy).
IT THEREFORE IS ORDERED that (1) the Amended Report and Recommendation of the Magistrate Judge is accepted and adopted; and (2) Judgment shall be entered denying the Second Amended Petition and dismissing this action with prejudice. DATED: March 16, 2016
/s/_________
MANUEL L. REAL
UNITED STATES DISTRICT JUDGE