Bush v. Matteson

Opinion

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 ANTHONY ARTHUR BUSH, Case No. 23cv0490-LL (JLB)

12 Petitioner, ORDER: 13 v. (1) GRANTING IN PART AND DENYING IN PART MOTION TO 14 G. MATTESON, Warden, et al., DISMISS PETITION FOR WRIT 15 Respondents. OF HABEAS CORPUS;

16 (2) DISMISSING CLAIMS ONE 17 AND TWO; and

18 (3) DIRECTING RESPONDENT 19 TO ANSWER PETITION

20 [ECF No. 6] 21 22 I. INTRODUCTION 23 Petitioner Anthony Arthur Bush, a state prisoner serving a sentence of life without 24 parole following a 1995 San Diego County Superior Court conviction for murder during 25 the commission of a robbery, is proceeding pro se with a Petition for Writ of Habeas Corpus 26 pursuant to 28 U.S.C. § 2254. ECF No. 1. Petitioner claims the state court erred in 27 determining that California’s Racial Justice Act does not apply to him (claim one), the 28 racial demographic of his jury pool did not reflect the racial demographic of San Diego 1 County in violation of the Fourteenth Amendment (claim two), and the prosecutor used a 2 racially motivated peremptory strike and referred to Petitioner as a racist gang member in 3 closing argument in violation of the Sixth and Fourteenth Amendments (claim three). Id. 4 at 16-29. This is the seventh federal habeas petition Petitioner has filed in this Court 5 challenging his 1995 conviction. Petitioner acknowledges he previously sought and was 6 denied federal habeas relief on claims two and three, but contends this action is not second 7 or successive because a recent correction of his presentence custody credits has resulted in 8 a new sentence and a new intervening criminal judgment. Id. at 16-20. 9 Respondent has filed a Motion to Dismiss the Petition along with a Notice of 10 Lodgment of the state court record. ECF Nos. 6-7. Respondent contends the alteration of 11 presentence custody credits by the state court was a ministerial act which did not result in 12 a new sentence or criminal judgment, and therefore this Court lacks jurisdiction because 13 Petitioner has not received permission from the Ninth Circuit Court of Appeals to proceed 14 with a second or successive petition. ECF No. 6-1 at 10-14. Respondent alternately argues 15 claim one is not cognizable and claim two is procedurally defaulted. Id. at 14-18. Petitioner 16 has filed an Opposition and a Notice of Lodgment. ECF Nos. 10, 12. He states claim one 17 is merely an argument that the state court erred in finding there was no new judgment and 18 is not a separate claim, claim two is not procedurally defaulted, and his Petition is not 19 second or successive. ECF No. 10 at 10-21. 20 For the following reasons, the Court grants in part and denies in part the motion to 21 dismiss, dismisses claims one and two, and directs Respondent to answer as to claim three. 22 II. FACTUAL AND PROCEDURAL BACKGROUND 23 On September 22, 1995, a San Diego County Superior Court jury found Petitioner 24 guilty of one count of murder and one count of attempted robbery. Lodgment No. 11, ECF 25 No. 7-11 at 28. They found true a special circumstance allegation that the murder was 26 committed during a robbery, and found Petitioner had personally used a firearm during 27 both crimes. Id. On November 8, 1995, he was sentenced to life in prison without the 28 possibility of parole plus four years. Id. The judgment was affirmed in the state appellate 1 court on June 12, 1997. Id. at 29. Petitioner filed a habeas petition in the California Supreme 2 Court rather than a petition for review, raising the claims presented on appeal. See R&R 3 filed 8/3/01 at 3-4 [ECF No. 9] in Bush v. Pliler, No. 01cv0142-BEN-NLS (S.D. Cal.). The 4 petition was denied on December 23, 1997, as procedurally barred by a state rule 5 precluding using habeas as a substitute for appeal. Id. Petitioner filed a second habeas 6 petition in the state supreme court on January 23, 1998, raising the same claims, which was 7 denied on May 27, 1998, for the same reason. Id. at 4. 8 Petitioner filed his first federal habeas petition in this Court on May 18, 1999, which 9 he voluntarily dismissed on August 31, 1999, to exhaust state remedies. See Pet. filed 10 5/18/99 [ECF No. 1] and Order filed 8/31/99 [ECF No. 6] in Bush v. Pliler, No. 99cv1019- 11 J-LAB (S.D. Cal.)) He filed a habeas petition in the state appellate court on July 19, 1999, 12 containing a new claim, which was denied on the merits on September 9, 1999. See R&R 13 filed 8/3/01 at 4 [ECF No. 9] in Bush v. Pliler, No. 01cv0142-BEN-NLS (S.D. Cal.). On 14 October 28, 1999, Petitioner filed a habeas petition in the state supreme court raising that 15 claim, which was denied on January 25, 2000, as procedurally barred for raising a claim 16 which could have been but was not raised on appeal. Id. at 4-5. Petitioner filed another 17 habeas petition in the state supreme court with yet another new claim, which was denied 18 on June 28, 2000, as procedurally barred under several state procedural rules. Id. at 5. 19 On January 25, 2001, Petitioner filed his second petition for a writ of habeas corpus 20 pursuant to 28 U.S.C. § 2254 in this Court challenging his 1995 conviction. See Pet. filed 21 1/25/01 [ECF No. 1] in Bush v. Pliler, No. 01cv0142-BEN-NLS (S.D. Cal.). That petition 22 raised, among others, claim three presented here, and this Court held an evidentiary hearing 23 as to that claim on December 1, 2008. See Order filed 3/3/09 at 1 [ECF No. 90] in Bush v. 24 Pliler, No. 01cv0142-BEN-NLS (S.D. Cal.). The Court denied the petition on March 3, 25 2009 [id. at 13], and later issued a certificate of appealability [See Order filed 3/20/09 at 3 26 [ECF No. 94] in Bush v. Pliler, No. 01cv0142-BEN-NLS (S.D. Cal.)]. The judgment was 27 affirmed on February 16, 2011. See Order filed 2/16/11 [ECF No. 101] in Bush v. Pliler, 28 No. 01cv0142-BEN-NLS (S.D. Cal.). 1 On September 4, 2015, the state appellate court denied a habeas petition raising 2 claim two presented here. See People v. Bush, No. D079990, 2022 WL 15229545, at *1 3 (Cal. Ct. App. Oct. 27, 2022) (“We determined his petition, filed nearly 20 years after 4 sentencing, was barred as untimely and Bush had not shown good cause for substantial 5 delay to justify consideration of his claims. We concluded his claims were also 6 procedurally barred because the facts and arguments were available at the time of trial but 7 were not raised either in his prior appeal or in his subsequent petition for writ of habeas 8 corpus.”) (citing In re Anthony Arthur Bush, No. D068752 (Sept. 4, 2015) (unpublished 9 order)). On January 19, 2016, Petitioner filed a Rule 60(b) motion for relief from judgment 10 in this Court for the purpose of raising claim two. See id.; see also Motion filed 1/19/16 11 [ECF No. 103] in Bush v. Pliler, No. 01cv0142-BEN-NLS (S.D. Cal.)). That motion was 12 denied on June 22, 2016, as an attempt to file a second or successive petition, his third 13 federal habeas petition. See Order filed 6/22/16 [ECF No. 108] in Bush v. Pliler, No. 14 01cv0142-BEN-NLS (S.D. Cal.). The appeal of that denial was dismissed as untimely on 15 March 8, 2017. See Order filed 3/8/17 [ECF No. 115] in Bush v. Pliler, No. 01cv0142- 16 BEN-NLS (S.D. Cal.). 17 On August 9, 2019, Petitioner filed a fourth habeas petition in this Court challenging 18 his 1995 conviction. See Pet. filed 8/9/19 [ECF No. 1] in Bush v. Neuschmid, No. 19 19cv1508-CAB-NLS (S.D. Cal.). That petition was dismissed as second or successive, and 20 a Rule 60(b) motion in that case was denied as an attempt to file a second or successive 21 fifth petition. See Order filed 9/16/19 [ECF No. 2] and Order filed 12/05/19 [ECF No. 9] 22 in Bush v. Neuschmid, No. 19cv1508-CAB-NLS (S.D. Cal.). The dismissal of that petition 23 and the denial of the Rule 60(b) motion were affirmed on appeal. See Order filed 12/14/20 24 [ECF No. 11] in Bush v. Neuschmid, No. 19cv1508-CAB-NLS (S.D. Cal.). While the 25 appeal in that case was pending, Petitioner filed a sixth habeas petition in this Court 26 challenging his 1995 conviction. See Pet. filed 1/28/20 [ECF No.1] in Bush v. Matteson, 27 No. 20cv180-LAB-KSC (S.D. Cal.). That petition was dismissed as second or successive 28 on February 6, 2020. See Order filed 2/6/20 [ECF No. 3] in Bush v. Matteson, No. 20cv180- 1 LAB-KSC (S.D. Cal.). 2 In 2019, Petitioner filed a motion in the state trial court requesting a hearing to 3 present youth related mitigation evidence for an eventual youth offender parole hearing, 4 and on February 26, 2021, the state appellate court upheld the denial of that motion on the 5 basis it did not apply to prisoners serving a term of life without the possibility of parole. 6 See People v. Bush, 2022 WL 15229545, at *2, citing People v. Bush, No. D077085 (Feb. 7 26, 2021) (unpublished opinion). While the appeal was pending in that case, Petitioner’s 8 appointed counsel brought to the court’s attention an error concerning the calculation of 9 pretrial custody credits, indicating he received 54 days of worktime credits at the time of 10 sentencing in 1995 but should have received only 46 days of credits. Id. On January 22, 11 2022, the state trial court determined that Petitioner’s pretrial custody credits had been 12 incorrectly calculated as 54 days of worktime credits rather than 46, and stated: “This court 13 finds that the defendant is entitled to receive the credits stated above and amends the 14 sentence imposed on 11/8/95 nunc pro tunc to that date. The Abstract of Judgment of that 15 sentence, which was prepared on 11/8/95, is also corrected by virtue of this minute order 16 to reflect the above credits.” See ECF No. 1 at 44. 17 Petitioner appealed that determination to the state appellate court and raised claim 18 one presented here, arguing that California’s Racial Justice Act, which applied only to to 19 convictions and sentences imposed after January 1, 2021, should apply to him because his 20 judgment of conviction had been reopened by the amended judgment. See People v. Bush, 21 2022 WL 15229545, at *2. The appellate court found that the superior court had merely 22 “corrected a clerical error in the calculation of custody credits” which “did not recall his 23 sentence” or reopen the judgment to allow him the benefit of the new state law. Id. 24 Petitioner then filed a petition for review in the state supreme court raising all three claims 25 presented here, which was summarily denied. Lodgment Nos. 23-25, ECF Nos. 7-25, 7-26, 26 7-27. 27 On March 16, 2023, Petitioner filed the instant Petition, his seventh federal habeas 28 petition filed in this Court challenging his 1995 conviction and sentence of life without the 1 possibility of parole. ECF No. 1. 2 III. ANALYSIS 3 Respondent contends the instant Petition is second or successive because a new 4 judgment was not entered on January 22, 2022, merely a clerical correction to pretrial 5 sentence credits nunc pro tunc to the original sentencing date. ECF No. 6-1 at 10-14. 6 Respondent alternately argues claim one is not cognizable because it relies solely on state 7 law and claim two is procedurally defaulted because it was denied by the state court as 8 untimely and as an improper attempt at piecemeal litigation. Id. at 14-18. Petitioner argues 9 that the instant Petition is not second or successive because he is challenging a new 10 judgment of conviction entered by the state trial court on January 22, 2022, which replaced 11 an invalid sentence with a valid sentence. ECF No. 10 at 10-19. He states that he did not 12 intend his argument that the state court erred in finding there was no new intervening 13 judgment of conviction to be construed as a separate claim one in the Petition and is only 14 presenting two claims here. Id. at 19. He argues that claim two, alleging the racial 15 demographic of his jury pool did not reflect the racial demographic of San Diego County, 16 is not procedurally defaulted because it has never been addressed on the merits in this 17 Court, as it was brought in a Rule 60(b) motion and dismissed as second or successive, but 18 his new intervening judgment means the claim is no longer second or successive. Id. at 19- 19 21. Respondent does not seek dismissal of claim three which, as noted above, was denied 20 in 2009 following an evidentiary hearing and affirmed on appeal. 21 A. Second or Successive 22 When a petitioner is seeking to challenge the same conviction challenged in a prior 23 federal habeas petition, the petitioner must show he or she has obtained an order from the 24 appropriate court of appeals authorizing the district court to consider a successive petition. 25 See 28 U.S.C. § 2244(b)(3)(A) (“Before a second or successive application permitted by 26 this section is filed in the district court, the applicant shall move in the appropriate court of 27 appeals for an order authorizing the district court to consider the application.”). A petition 28 is second or successive when it challenges “the same custody imposed by the same 1 judgment of a state court” as a prior petition. Burton v. Stewart, 549 U.S. 147, 153 (2007). 2 Failure to obtain appellate court authorization acts as a jurisdictional bar to the district 3 court. See Rishor v. Ferguson, 822 F.3d 482, 490 (9th Cir. 2016) (citation omitted). 4 However, a federal petition is not second or successive if there has been a “new 5 judgment intervening between the two habeas petitions.” Magwood v. Patterson, 561 U.S. 6 320, 341-42 (2010) (citing Burton, 549 U.S. at 156); Wentzell v. Neven, 674 F.3d 1124, 7 1127 (9th Cir. 2012) (“[W]e conclude, as a matter of first impression, that the basic holding 8 of Magwood applies here: the latter of two petitions is not ‘second or successive’ if there 9 is a ‘new judgment intervening between the two habeas petitions.’”) (quoting Magwood, 10 561 U.S. at 339). The Ninth Circuit has stated that: “Applying the reasoning of Magwood 11 and Wentzell, we hold that in California, a court’s recalculation and alteration of the 12 number of time-served or other similar credits awarded to a petitioner constitutes a new 13 judgment.” Gonzalez v. Sherman, 873 F.3d 763, 769 (9th Cir. 2017). “[U]nder the law of 14 this circuit and the Supreme Court, a petition is not second or successive when there is an 15 amended judgment and the petition is the first one following that amended judgment.” Id. 16 at 768; see also Morales v. Sherman, 949 F.3d 474, 475-76 (9th Cir. 2020) (per curiam) 17 (federal habeas petition raising the same claims raised in an earlier federal habeas petition 18 was not barred as second or successive when there was a new, intervening judgment 19 between the filing of the petitions). The parties agree this is the first federal habeas petition 20 Petitioner has filed following the January 20, 2022, correction of his pretrial custody 21 credits. They disagree whether there is a new intervening criminal judgment. 22 The Gonzalez court found that an adjustment to presentence custody credits, as here, 23 constituted a new sentence and a new judgment of conviction precluding a finding of 24 second or successive within the meaning of 28 U.S.C. § 2244(b) because, unlike a mere 25 scrivener’s error indicating a discrepancy between the oral pronouncement of a sentence 26 and its written form, a miscalculation of pretrial custody credits results in pronouncement 27 of an illegal and invalid sentence. Gonzalez, 873 F.3d at 769-70 (“[T]he state trial court’s 28 alteration of the number of presentence credits to which a prisoner is entitled is a legally 1 significant act: it replaces an invalid sentence with a valid one.”) Thus, its correction 2 changed an illegal sentence into a legal sentence and resulted in a new and valid intervening 3 judgment of conviction. Id. at 770. The Gonzalez court noted that California law controls 4 the determination of whether there is a new criminal judgment for purposes of 28 U.S.C. 5 § 2244(b), relying on the Supreme Court’s holding in Magwood that it is “‘[t]he 6 requirement of custody pursuant to a state-court judgment’ included in AEDPA’s text, 7 which ‘distinguishes § 2254 from other statutory provisions authorizing relief from 8 constitutional violations.”’ Id. (quoting Magwood, 561 U.S. at 333). The Gonzalez court 9 further found that the district court had erred in determining that alteration of a sentence 10 nunc pro tunc to the date it was initially imposed, as also happened here, did not result in 11 an amended intervening judgment, because such use of the state court’s nunc pro tunc 12 authority would violate California law. Id. at 772-73. 13 Respondent attempts to distinguish Gonzalez by arguing that (1) more recent state 14 appellate court decisions reveal that Gonzalez misapplied California law in reaching its 15 conclusion that state law prohibits a state court from ordering a recalculation of custody 16 credits nunc pro tunc to the original sentencing date, (2) unlike Gonzalez this case involves 17 the state appellate court’s pronouncement that no new intervening judgment was imposed, 18 albeit in the context of a state criminal statute, and (3) unlike Gonzalez, Petitioner here is 19 serving a sentence of life without the possibility of parole, so the recalculation of his pretrial 20 custody credits did not result in a new sentence. ECF No. 6-1 at 10-14. This Court is bound 21 by Ninth Circuit authority that the alteration of pretrial custody credits, even when applied 22 nunc pro tunc to the original sentencing date, transforms an invalid sentence into a valid 23 sentence under California law and therefore constitutes a new intervening criminal 24 sentence and judgment for purposes of determining if a petition is second or successive in 25 federal court. See, e.g., Johnson v. Barlow, No. 06cv1150-WBS (GG), 2007 WL 1723617, 26 at *3 (E.D. Cal. June 11, 2007) (“[B]arring a clear holding to the contrary by California’s 27 highest court, it is not this court’s prerogative to second guess” the Ninth Circuit’s 28 interpretation of California law notwithstanding a conflicting California appellate court 1 decision) (citing Dimidowich v. Bell & Howell, 803 F.2d 1473, 1482 (9th Cir. 1986)). 2 Respondent fails to distinguish Gonzalez by arguing that the duration of Petitioner’s 3 sentence, unlike in Gonzalez, was not affected by the change in custody credits since the 4 number of custody credits to which Petitioner is entitled is irrelevant to his sentence of life 5 without parole. See Gonzalez, 873 F.3d at 769 (“Under California law, custody credits are 6 part of [a defendant’s] sentence and a court’s alteration of the number of credits awarded 7 to a defendant changes both the duration and legality of his sentence. Because the relevant 8 sentence under Magwood is the one ‘pursuant to’ which an individual is held ‘in custody,’ 9 such an alteration constitutes a new, intervening judgment.”) (emphasis added). 10 Respondent’s concern of allowing Petitioner to proceed with a new federal habeas petition 11 challenging a nearly 30 year-old state conviction which has already been the subject of 12 numerous federal habeas proceedings was also addressed by Gonzalez, which reiterated 13 the comments by the Supreme Court in Magwood that the “procedural default rule will 14 continue to limit what claims may be brought in a federal petition,” and when a “petitioner 15 files a new petition reraising all of the arguments previously rejected by a federal court, 16 ‘[i]t will not take a court long to dispose of such claims where the court has already 17 analyzed the legal issues.’” Id. at 773-74 (quoting Magwood, 561 U.S. at 340, n.15). Those 18 predictions are realized here because claim one is dismissed as not cognizable, claim two 19 is dismissed as procedurally defaulted, and claim three, the only claim left in the Petition, 20 has already been denied on the merits by this Court following an evidentiary hearing. See 21 id.; see also Wentzell, 674 F.3d at 1127 (“The Supreme Court’s discussion in Magwood 22 indicates that procedural default rules-rather than the rules governing ‘second or 23 successive’ petitions-are the more appropriate tools for sorting out new claims from the 24 old.”). 25 Accordingly, the Court DENIES Respondent’s Motion to Dismiss the Petition as 26 second or successive. 27 B. Claim One 28 Petitioner contends in claim one that he is entitled to application of California’s 1 Racial Justice Act, which became effective on January 1, 2021, and which provides that 2 the “state shall not seek or obtain a criminal conviction or seek, obtain, or impose a sentence 3 on the basis of race, ethnicity or national origin.” Young v. Superior Court, 294 Cal. Rptr. 4 3d 513, 518 (Ct. App. 2022). The state supreme court denied this claim on January 11, 5 2023, stating in full: “The petition for review is denied.” Lodgment No. 25, ECF No. 7-27. 6 This Court will “look through” that summary denial to the last reasoned state court decision 7 denying this claim. See Ylst v. Nunnemaker, 501 U.S. 797, 805-06 (1991). Here, that is the 8 state appellate court’s opinion, which stated: 9 Bush’s supplemental brief focuses entirely on his claim, which he has unsuccessfully raised previously in both state and federal courts, that the 10 prosecutor improperly exercised a peremptory challenge to the sole remaining 11 African American prospective juror and made comments in closing statements that Bush was a racist gang member. By its terms, however, the Racial Justice 12 Act applies prospectively only to judgments not entered before January 1, 13 2020. (§§ 745, subd. (j); 1473, subd. (f).) The court’s order of January 20, 2022 did not recall his sentence; it corrected a clerical error in the calculation 14 of custody credits. Therefore, his judgment is final and he is not entitled to the 15 benefit of subsequent ameliorative changes to the law. (People v. Humphrey (2020) 44 Cal.App.5th 371, 380; People v. Magana (2021) 63 Cal.App.5th 16 1120, 1126-1127.) 17 18 People v. Bush, 2022 WL 15229545, at *2. 19 Respondent contends claim one does not present a cognizable claim because it relies 20 only on the application of state law. ECF No. 6-1 at 15-16. Petitioner replies that he did 21 not intend to raise this as a separate claim, but merely to argue that the state court erred in 22 finding there was no intervening amended judgment. ECF No. 10 at 19. 23 A claim raised in a federal habeas petition is not cognizable on federal habeas if it 24 relies solely on state law. See Estelle v. McGuire, 502 U.S. 62, 68 (1991) (“In conducting 25 habeas review, a federal court is limited to deciding whether a conviction violated the 26 Constitution, laws, or treaties of the United States.”) There is an exception that a federal 27 claim can arise from a state court sentencing decision involving an arbitrary application of 28 state law or an erroneous factual finding amounting to fundamental unfairness. See 1 Richmond v. Lewis, 506 U.S. 40, 50 (1992) (holding that a state court’s application of state 2 law does not rise to the level of a federal due process violation unless it was so arbitrary or 3 capricious as to constitute an independent federal constitutional violation); Fetterly v. 4 Paskett, 997 F.2d 1295, 1300 (9th Cir. 1993) (“[T]he failure of a state to abide by its own 5 statutory commands may implicate a liberty interest protected by the Fourteenth 6 Amendment against arbitrary deprivation by a state.”). 7 Petitioner does not, nor could he, argue that the state court acted arbitrarily or was 8 fundamentally unfair in rejecting a claim based entirely on an underlying claim which has 9 been previously rejected by the state and federal courts, particularly after an evidentiary 10 hearing was held in this Court on the merits of the underlying claim. In sum, Petitioner 11 indicates he did not intend to present such a claim in his Petition which is in any case reliant 12 solely on state law and not cognizable on federal habeas. 13 Accordingly, the Court GRANTS Respondent’s Motion to Dismiss claim one and 14 DISMISSES claim one from the Petition. 15 C. Claim Two 16 Respondent argues that assuming the Court has jurisdiction over the Petition, claim 17 two, alleging that the racial composition of Petitioner’s jury pool was not representative of 18 the racial composition of San Diego County in violation of the Fourteenth Amendment, 19 must be dismissed because it is procedurally defaulted as a result of the state court’s denial 20 as untimely and as not having been raised in an earlier proceeding. ECF No. 6-1 at 16-18. 21 Petitioner replies that although he initially raised this claim in a Rule 60(b) motion in this 22 Court in 2016 after exhausting it in state court, it was dismissed by this Court as second or 23 successive at that time, but it is no longer second or successive due to his new intervening 24 state judgment and sentence. ECF No. 10 at 19-21. 25 The Ninth Circuit has held that because procedural default is an affirmative defense, 26 in order to establish a claim is procedurally defaulted, Respondent must first “adequately 27 [plead] the existence of an independent and adequate state procedural ground.” Bennett v. 28 Mueller, 322 F.3d 573, 586 (9th Cir. 2003). The burden then shifts to Petitioner to “assert[] 1 specific factual allegations that demonstrate the inadequacy of the state procedure . . . .” 2 Id. If Petitioner succeeds, the “ultimate burden” of proving procedural default then falls to 3 Respondent. Id. “In all cases in which a state prisoner has defaulted his federal claims in 4 state court pursuant to an adequate and independent state procedural rule, federal habeas 5 review of the claim is barred unless the prisoner can demonstrate cause for the default and 6 actual prejudice as a result of the alleged violation of federal law, or demonstrate that 7 failure to consider the claims will result in a fundamental miscarriage of justice.” Coleman 8 v. Thompson, 501 U.S. 722, 750 (1991). 9 A state procedural rule is “independent” if the state law basis for the decision does 10 not rest primarily on, or is not interwoven with, federal law. Michigan v. Long, 463 U.S. 11 1032, 1040-41 (1983). A ground is “interwoven” with federal law if the state has made 12 application of the procedural bar depend on a determination as to whether federal 13 constitutional error has been committed. Ake v. Oklahoma, 470 U.S. 68, 75 (1985). “To 14 qualify as an ‘adequate’ procedural ground, a state rule must be ‘firmly established and 15 regularly followed.’” Walker v. Martin, 562 U.S. 307, 316 (2011), quoting Beard v. 16 Kindler, 558 U.S. 53, 60-61 (2009). 17 Petitioner raised claim two in the petition for review in the California Supreme Court 18 filed on November 29, 2022. Lodgment Nos. 23-24, ECF Nos. 7-25, 7-26. The state 19 supreme court denied the petition on January 11, 2023, stating in full: “The petition for 20 review is denied.” Lodgment No. 25, ECF No. 7-27. This Court will “look through” that 21 summary denial to the last reasoned state court decision denying the claim. See Ylst, 501 22 U.S. at 805-06. Here, that is the state appellate court’s opinion, which stated: 23 Bush is not entitled to relief. His petition, filed nearly 20 years after sentencing, is barred as untimely. (In re Reno (2012) 55 Cal.4th 428, 459; In 24 re Swain (1949) 34 Cal.2d 300, 302.) Bush has not shown good cause for the 25 substantial delay such as would justify consideration of his claims on the merits, because the facts and arguments underlying the claims were available 26 at the time of trial. (In re Reno, supra, at pp. 460, 463.) Bush also has not 27 established the applicability of any of the exceptions to the rule that claims raised after substantial delay without good cause will not be considered on the 28 1 Bush’s current claims are also procedurally barred because they could 2 have been raised at trial, but were not (In re Seaton (2004) 34 Cal.4th 193, 3 200); could have been raised on direct appeal, but were not (In re Reno, supra, 55 Cal.4th at p. 490; In re Dixon (1953) 41 Cal.2d 756, 759); or could have 4 been raised in his prior petition for writ of habeas corpus, but were not (In re 5 Reno, supra, at p. 501; In re Horowitz (1949) 33 Cal.2d 534, 546-547). “In this state a defendant is not permitted to try out his contentions piecemeal by 6 successive proceedings attacking the validity of the judgment against him.” 7 (In re Connor (1940) 16 Cal.2d 701, 705.) “[S]uch piecemeal litigation prevents the positive values of deterrence, certainty, and public confidence 8 from attaching to the judgment. The values that inhere in a final judgment are 9 equally threatened by petitions for collateral relief raising claims that could have been raised in a prior petition.” (In re Clark (1993) 5 Cal.4th 750, 770.) 10 A successive petition such as that filed by Bush constitutes “an abuse of the 11 writ” and may be denied summarily. (Id. at pp. 769, 797.)

12 Lodgment No. 2, ECF No. 7-2, In re Bush, No. D068752, at 2 (Cal. Ct. App. Sept. 4, 2015). 13 The United States Supreme Court has found that California’s Reno timeliness bar 14 and its Dixon bar against raising claims in habeas that could have been but were not raised 15 on appeal, are independent and adequate state procedural bars. See Johnson v. Lee, 578 16 U.S. 605, 606-09 (2016) (per curiam); Walker v. Martin, 562 U.S. 307, 316-17 (2011); see 17 also Kohut v. Godwin, No. CV 22-00398-MWF (SHK), 2023 WL 4291120, at *5 (C.D. 18 Cal. May 25, 2023) (“The rule then that a claim is barred on habeas review when it could 19 have been but was not raised on direct appeal is independent and adequate to bar review 20 [under the holding of Johnson v. Lee] even though the California Court of Appeal in this 21 case cited to different state law cases espousing that rule.”). 22 Respondent has pleaded “the existence of an independent and adequate state 23 procedural ground” so as to carry the initial burden of demonstrating claim two is 24 procedurally defaulted. Bennett, 322 F.3d at 586. The burden has shifted to Petitioner to 25 “assert[] specific factual allegations that demonstrate the inadequacy of the state 26 procedure.” Id. Petitioner makes no such effort. Rather, he argues that because his criminal 27 judgment and sentence were amended by the state court in 2022, this Court’s determination 28 1 1999 that his presentation of the claim in a Rule 60(b) motion was an attempt to file a 2 |}second or successive petition is no longer valid. ECF No. 10 at 19-21. Neither does 3 || Petitioner attempt to “demonstrate cause for the default and actual prejudice as a result of 4 || the alleged violation of federal law, or demonstrate that failure to consider the claims will 5 ||result in a fundamental miscarriage of justice” as necessary for the Court to consider his 6 ||claim. Coleman, 501 U.S. at 750. No such cause, prejudice or miscarriage of justice is 7 ||apparent in the record, particularly in light of Petitioner’s 20-year delay in presenting the 8 || claim. 9 Accordingly, the Court GRANTS Respondent’s Motion to Dismiss claim two as 10 || procedurally defaulted and DISMISSES claim two. 11 CONCLUSION 12 For the foregoing reasons, the Court GRANTS IN PART and DENIES IN PART 13 || Respondent’s Motion to Dismiss, [ECF No. 6], and DISMISSES claims one and two from 14 Petition. Respondent will file an Answer addressing claim three within forty-five (45) 15 || days of the date this Order is filed. Petitioner may file a Traverse within thirty (30) days of 16 || being served with Respondent’s Answer. 17 IT IS SO ORDERED. 18 || Dated: January 2, 2024 NO 19 QF | 70 Honorable Linda Lopez United States District Judge 22 23 24 25 26 27 28