Ching Lee v. Harris

226 F.Supp.3d 992

CHING LEE, Plaintiff,

v.Kamala D. HARRIS, Defendant.

Case No. 15–cv–05316–BLF

United States District Court, N.D. California, San Jose Division .

Signed December 22, 2016

Kiran Shenoy, Law Office of Kiran Shenoy, Emeryville, CA, for Plaintiff.

Michele Joette Swanson, CA State Attorney General's Office, San Francisco, CA, for Defendant.

ORDER GRANTING MOTION TO DISMISS

[Re: ECF 23]

BETH LABSON FREEMAN, United States District Judge

Before the Court is Respondent's motion to dismiss the amended petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254. Mot., ECF 23. For the reasons stated below, the Court GRANTS the motion to dismiss and DISMISSES with prejudice Petitioner's petition for writ of habeas corpus.

I. BACKGROUND

On November 16, 2012, Petitioner was found guilty in Contra Costa County Superior Court of inflicting corporal injury on a spouse. Am. Pet. 6, ECF 22. Petitioner was sentenced to three years of probation, and required to serve one day in jail, attend a fifty-two week domestic violence class, and perform twenty hours of community service. Clerk's Tr. On Appeal 66, ECF 22–2.

The Contra Costa County Superior Court denied Petitioner's direct appeal on September 19, 2014. Am. Pet. 7. On May 26, 2015, Petitioner filed for a writ of habeas corpus in the Appellate Division of Contra Costa County Superior Court, which was denied on July 17, 2015. Ex. E to Am. Pet., ECF 22–6; Mot. 2. On November 18, 2015, Petitioner filed a petition of writ of habeas corpus in the California Supreme Court. Ex. 1 to Mot. Petitioner's probation ended two days later on November 20, 2015. Resp. to Mot. ("Resp.") 5, ECF 24. The California Supreme Court denied the petition on March 23, 2016, citing to People v. Villa , 45 Cal.4th 1063, 90 Cal.Rptr.3d 344, 202 P.3d 427 (2009) and In re Wessley W. , 124 Cal.App.3d 243, 246, 181 Cal.Rptr. 401 (1981). Ex. F to Am. Pet.

On November 19, 2015, Petitioner filed a petition in this Court before his state claim was exhausted, but given the California Supreme Court's later decision denying his petition, his claim has become wholly exhausted. ECF 20. On May 4, 2016, Petitioner filed an amended petition, to which Respondent now moves to dismiss. Am. Pet.; Mot.

II. LEGAL STANDARD

This Court may entertain a petition for a writ of habeas corpus on "behalf of a person in custody pursuant to the judgment of a State court only on the ground that he is in custody in violation of the Constitution or laws or treaties of the United States." 28 U.S.C. § 2254(a) ; Rose v. Hodges , 423 U.S. 19, 21, 96 S.Ct. 175, 46 L.Ed.2d 162 (1975). Prisoners in state custody who wish to challenge collaterally in federal habeas proceedings either the fact or length of their confinement are first required to exhaust state judicial remedies, either on direct appeal or through collateral proceedings, by presenting the highest state court available with a fair opportunity to rule on the merits of each and every claim they seek to raise in federal court. 28 U.S.C. § 2254(b), (c) ; Rose v. Lundy , 455 U.S. 509, 515–16, 102 S.Ct. 1198, 71 L.Ed.2d 379 (1982) ; Duckworth v. Serrano , 454 U.S. 1, 3, 102 S.Ct. 18, 70 L.Ed.2d 1 (1981) ; McNeeley v. Arave , 842 F.2d 230, 231 (9th Cir. 1988). The state's highest court must be given an opportunity to rule on the claims even if review is discretionary. See O'Sullivan v. Boerckel , 526 U.S. 838, 845, 119 S.Ct. 1728, 144 L.Ed.2d 1 (1999) (petitioner must invoke "one complete round of the State's established appellate review process.").

However, 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, 111 S.Ct. 2546, 115 L.Ed.2d 640 (1991). In the context of direct review of a state court judgment by a federal court, the "adequate and independent state ground" doctrine goes to jurisdiction; in federal habeas cases, it is also grounded in comity and federalism. Id. The procedural default rule is a specific instance of the more general "adequate and independent state grounds" doctrine. Wells v. Maass , 28 F.3d 1005, 1008 (9th Cir. 1994).

In cases in which a state prisoner has defaulted his federal claims in state court pursuant to an independent and adequate state procedural rule, federal habeas review of the 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.

Coleman , 501 U.S. at 750, 111 S.Ct. 2546. Where petitioner's claims were not fairly presented to the state courts, but an independent and adequate state procedural rule exists which bars their review, claims are procedurally barred in federal habeas review. Cooper v. Neven , 641 F.3d 322, 327 (9th Cir. 2011). A petitioner must establish factual innocence in order to show that a fundamental miscarriage of justice would result from application of procedural default. See Gandarela v. Johnson , 286 F.3d 1080, 1085 (9th Cir. 2002) ; Wildman v. Johnson , 261 F.3d 832, 842–43 (9th Cir. 2001).

III. DISCUSSION

Respondent argues that the amended petition should be dismissed as procedurally defaulted. Mot. 3. According to Respondent, Petitioner raised the same two claims of ineffective assistance of trial counsel in state habeas review to the California Supreme Court as those in his federal petition here. Ex. 1 to Mot.; Mot. 4. The California Supreme Court denied the petition citing to People v. Villa , 45 Cal.4th 1063, 90 Cal.Rptr.3d 344, 202 P.3d 427 (2009) and In re Wessley W. , 124 Cal.App.3d 243, 246, 181 Cal.Rptr. 401 (1981). The California courts in these two cited cases held that California Penal Code section 1473(a) only makes habeas relief available to petitioners in constructive custody, and not those out of custody. Mot. 4. Given that Petitioner's probation ended just two days after he petitioned the California Supreme Court, Respondent argues that the California Supreme Court rightly barred his claims under Villa . Id. Respondent further claims that the imposition of the Villa bar was "adequate," because it is "firmly established" and "regularly followed." Id. at 4–5.

Petitioner disputes that the California Supreme Court's denial of his petition rested on "an adequate and independent state law basis." Resp. 3. Specifically, Petitioner argues that references to federal law were interwoven throughout Villa . Id. at 4. Petitioner also argues that the instant case differs from Villa , in that he filed his state habeas petition when he was still on probation. Id. Separately, Petitioner contends that jurisdiction has already attached to this Court because an expired sentence does not render the federal petition moot as long as the petitioner was in custody "at the time his petition was filed." Id. at 5–6 (citing Maleng v. Cook , 490 U.S. 488, 490–91, 109 S.Ct. 1923, 104 L.Ed.2d 540 (1989) ). Lastly, Petitioner claims that even if there were an independent and adequate state procedural ground, he can demonstrate cause and prejudice. Id. at 6.

A. Whether the California Supreme Court's Denial Rests on an Independent State Ground

The California Supreme Court issued a denial of the state habeas claim, stating only that "[t]he petition for writ of habeas corpus is denied. (See People v. Villa (2009) 45 Cal.4th 1063, 90 Cal.Rptr.3d 344, 202 P.3d 427 and In re Wessley W. (1981) 124 Cal.App.3d 243, 246, 181 Cal.Rptr. 401.)" Harris v. Superior Court of State of Cal., Los Angeles Cty. , 500 F.2d 1124, 1125 (9th Cir. 1974) (noting the practice of the California Supreme Court in entering a "very brief order" denying a petition for a writ of habeas corpus). Here, Petitioner does not dispute that the California Supreme Court's denial of his petition rests on Villa or that the Villa bar is "firmly established" or "regularly followed." Walker v. Martin , 562 U.S. 307, 316, 131 S.Ct. 1120, 179 L.Ed.2d 62 (2011) ; Reply 2. Rather, the main thrust of Petitioner's argument is that Villa is interwoven with federal law, and thus is not an independent state ground to qualify as a procedural default. Id. at 3–4. The Court now reviews Villa in detail below to evaluate whether the Villa bar is an independent state ground.

Avelino Villa, the petitioner in Villa , pled guilty to possession of cocaine for sale in 1989 and was sentenced to three years of probation. 45 Cal.4th at 1066, 90 Cal.Rptr.3d 344, 202 P.3d 427. One year after his conviction, he obtained lawful permanent resident status in United States. Id. at 1066–67, 90 Cal.Rptr.3d 344, 202 P.3d 427. In 2005, when Villa applied to renew his permanent resident status, the Immigration and Naturalization Service ("INS") arrested him for deportation based on his 1989 conviction. Id. at 1067, 90 Cal.Rptr.3d 344, 202 P.3d 427. Villa then petitioned for writ of habeas corpus to overturn his 1989 conviction, alleging ineffective trial counsel among other claims. Id. The California Supreme Court first noted that availability of the writ of habeas corpus in California is implemented by Penal Code section 1473, subdivision (a), which provides: "Every person unlawfully imprisoned or restrained ... may prosecute a writ of habeas corpus." Id. at 1068, 90 Cal.Rptr.3d 344, 202 P.3d 427 (emphasis in original) (citing Cal. Penal Code § 1473(a) ). The court then concluded that "a necessary prerequisite for issuance of the writ is the custody or restraint of the petitioner," where custody can include constructive custody, such as parole or probation. Id. at 1068–69, 90 Cal.Rptr.3d 344, 202 P.3d 427. The court then found that Villa was no longer in the custody of the state of California, the sovereign responsible for the 1989 conviction, but in the custody of INS. Id. at 1072, 90 Cal.Rptr.3d 344, 202 P.3d 427. As such, his...