Guerrero v. Matterson

Opinion

1 2 3 4 UNITED STATES DISTRICT COURT 5 NORTHERN DISTRICT OF CALIFORNIA 6 7 RICHARD ORESTES GUERRERO, Case No. 20-cv-05923-WHO (PR)

Petitioner, 8 ORDER OF DISMISSAL v. 9

10 G. MATTERSON, Dkt. No. 19 Respondent. 11

12 13 INTRODUCTION 14 Petitioner Richard Orestes Guerrero seeks federal habeas relief from his state 15 convictions, claiming that counsel rendered ineffective evidence and that his plea was not 16 knowing and voluntary. Respondent moves to dismiss the habeas petition on the grounds 17 that the claims are procedurally defaulted because the state supreme court held that they 18 were successive under In re Clark, 5 Cal. 4th 750 (1993). Respondent is correct and 19 Guerrero has not shown that the state’s successive bar is inadequate. Moreover, 20 Guerrero’s claims are not cognizable because they relate to pre-plea matters, which were 21 effectively waived when he pleaded guilty to the charges. The motion to dismiss is 22 GRANTED and the habeas action is DISMISSED. 23 BACKGROUND 24 Guerrero was twice tried on charges arising from a 2008 gang shooting. (Mot. to 25 Dismiss (MTD), State Appellate Opinion, Dkt. No. 19 at 11.) The conviction following 26 his first trial was reversed on appeal;1 his second ended in a mistrial and acquittal on a 27 1 charge of first degree murder. (Id.) In 2018, following the mistrial, Guerrero pleaded nolo 2 contendere in the Santa Clara County Superior Court to charges of voluntary 3 manslaughter, assault with a firearm, and a gang sentencing enhancement.2 (Pet., Dkt. No. 4 1 at 2.) He received a sentence of seventeen years. His attempts at overturning his 5 convictions in state court were unsuccessful. This federal habeas petition followed. 6 I dismissed Guerrero’s original petition with leave to amend. His petition did not 7 contain the only challenges available to him after pleading guilty: (i) voluntary 8 and intelligent character of the plea; and (ii) adequacy of the advice of counsel. (Order 9 Dismissing Petition, Dkt. No. 7.) Guerrero moved to stay his habeas action because he had 10 not exhausted such claims. (Dkt. No. 8.) The stay was granted. (Dkt. No. 9.) 11 During the stay, Guerrero filed a habeas petition in the state supreme court, which 12 denied it. The court stated:

13 The petition for writ of habeas corpus is denied. (See In re Clark (1993) 5 14 Cal. 4th 750, 767-769 [courts will not entertain habeas corpus claims that are successive]; People v. Duvall (1995) 9 Cal. 4th 464, 474 [a petition for writ 15 of habeas corpus must include copies of reasonably available documentary evidence]; In re Swain (1949) 34 Cal. 2d 300, 304 [a petition for writ of 16 habeas corpus must allege sufficient facts with particularity].) 17 18 (MTD, Dkt. No. 19 at 113.) 19 After the state supreme court issued its decision, Guerrero filed a motion to reopen, 20 which was granted, and then he filed an amended petition. (Dkt. Nos. 12, 13, and 14.) 21 After the Order to Show Cause was issued, respondent filed a motion to dismiss, which is 22 the subject of the present Order. (Dkt. Nos. 16 and 19.) 23 As grounds for federal habeas relief, Guerrero alleges that (i) counsel was 24 ineffective at his trial; and (ii) his plea was not knowing and voluntary because counsel’s 25 trial performance was ineffective. (Am. Pet., Dkt. No. 14 at 1-4.) 26 27 1 DISCUSSION 2 Respondent moves to dismiss the habeas action on grounds that Guerrero’s claims 3 are (i) procedurally defaulted; and (ii) not cognizable on federal habeas review. 4 i. Procedural Default 5 Respondent contends that the state supreme court’s citation to In re Clark renders 6 all claims procedurally defaulted. (MTD, Dkt. No. 19 at 5.) Guerrero’s opposition to the 7 motion does not mention Clark and discusses procedural default in conclusory terms. 8 (Dkt. No. 20.) 9 a. Procedural Default Principles 10 Federal habeas relief is unavailable if a claim is procedurally defaulted, that is, if a 11 state denied claims because a petitioner failed to comply with the state’s requirements for 12 presenting claims. Coleman v. Thompson, 501 U.S. 722, 731-32 (1991). The state’s 13 grounds for denying the claim “must be independent of the federal question and adequate 14 to support the judgment.” Id. at 729. A state procedural bar is “adequate” if it is “clear, 15 consistently applied, and well-established at the time of the petitioner’s purported default.” 16 Calderon v. U.S. Dist. Ct. (Bean), 96 F.3d 1126, 1129 (9th Cir. 1996) (quoting Wells v. 17 Maass, 28 F.3d 1005, 1010 (9th Cir. 1994)). 18 The state carries the initial burden of adequately pleading “the existence of an 19 independent and adequate state procedural ground as an affirmative defense.” Bennett v. 20 Mueller, 322 F.3d 573, 586 (9th Cir. 2003). If the state meets this requirement, the burden 21 then shifts to the petitioner “to place that defense in issue,” which the petitioner may do 22 “by asserting specific factual allegations that demonstrate the inadequacy of the state 23 procedure, including citation to authority demonstrating inconsistent application of the 24 rule.” Id. If the petitioner meets this burden, “the ultimate burden” of proving the 25 adequacy of the state bar rests with the state, which must demonstrate “that the state 26 procedural rule has been regularly and consistently applied in habeas actions.” Id. 27 To overcome a claim of procedural default, petitioner must establish either 1 will result in a “fundamental miscarriage of justice.” Harris v. Reed, 489 U.S. 255, 262 2 (1989). To show cause for a procedural default, the petitioner must “show that some 3 objective factor external to the defense impeded” his efforts to comply with the state 4 procedural rule. Murray v. Carrier, 477 U.S. 478, 488 (1986). For cause to exist, the 5 external impediment must have prevented the petitioner from raising the claim. See 6 McClesky v. Zant, 499 U.S. 467, 497 (1991). To show prejudice, a petitioner bears “the 7 burden of showing not merely that the Case errors [complained of] constituted a possibility 8 of prejudice, but that they worked to his actual and substantial disadvantage, infecting his 9 entire [proceeding] with errors of constitutional dimension.” White v. Lewis, 874 F.2d 599, 10 603 (9th Cir. 1989) (citing United States v. Frady, 456 U.S. 152, 170 (1982)). If the 11 petitioner fails to show cause, the Court need not consider whether the petitioner suffered 12 actual prejudice. Engle v. Isaac, 456 U.S. 107, 134 n.43 (1982). 13 To show a “fundamental miscarriage of justice,” a petitioner must show that the 14 constitutional error of which he complains “has probably resulted in the conviction of one 15 who is actually innocent.” Bousley v. United States, 523 U.S. 614, 623 (1998) (citing 16 Murray, 477 U.S. at 496). “‘[A]ctual innocence’ means factual innocence, not mere legal 17 insufficiency.” Id. at 623. It is established when, in light of all the evidence, “it is more 18 likely than not that no reasonable juror would have convicted [the petitioner].” Id. 19 (quoting Schlup v. Delo, 513 U.S. 298, 327-28 (1995)). A petitioner can make a showing 20 of “actual innocence” by presenting the court with new evidence which raises a sufficient 21 doubt as “to undermine confidence in the result of the trial.” Schlup, 513 U.S. at 324. 22 a. Application of Procedural Default Principles 23 Respondent has carried the initial burden of adequately pleading the existence of an 24 independent and adequate state procedural ground as an affirmative defense. As 25 respondent points out, the state supreme court denied Guerrero’s habeas application with a 26 citation to In re Clark, 5 Cal. 4th at 767-69. In Clark, the state supreme court held that “It 27 has long been the rule that absent a change in the applicable law or the facts, the court will 1 The court has also refused to consider newly presented grounds for relief which were 2 known to the petitioner at the time of a prior collateral attack on the judgment.” Id. at 767- 3 68 (internal citations omitted). Clark emphasized that a petitioner must “present all known 4 claims in a single, timely petition for writ of habeas corpus.” Id. at 767; accord In re 5 Morgan, 50 Cal. 4th 932, 945 (Cal. 2010) (“A corollary of the rule against successive 6 petitions is the rule that all known claims must be brought in a single, timely habeas corpus 7 petition.”). 8 Respondent has shown that the Clark successive bar is both independent and 9 adequate. It is independent because the state supreme court “explicitly invoke[d] the 10 procedural rule as a separate basis for its decision,” Vang v. Nevada, 329 F.3d 1069, 1074 11 (9th Cir. 2003), and the application of the bar did not “depend[ ] on a consideration of 12 federal law,” id. at 1075, federal law having no role in determining whether a state habeas 13 petition is successive, In re Robbins, 18 Cal. 4th at 811 (clarifying that Clark’s successive 14 bar is independent of federal law). 15 Although the Ninth Circuit has not yet ruled in a published case that the Clark bar 16 on successive or abusive petitions is adequate, many district courts have concluded that it 17 is.3 See, e.g., Luckett v. Matteson, No. 18-cv-07670-HSG (PR), 2020 WL 6868834, at *10 18 (N.D. Cal. Nov. 23, 2020) (“In re Clark constitutes an independent and adequate state 19 procedural ground for the state court’s denial of Petitioner’s claims, barring federal habeas 20 review”); Churich v. Hatton, No. 18-cv-02943-VC (PR), 2020 WL 978625, at *3 (N.D. 21 Cal. Feb. 28, 2020) (petition barred by Clark’s successive petition rule); Briggs v. State, 22 No. 15-cv-05809-EMC, 2017 WL 1806495, at *6-7 (N.D. Cal. May 5, 2017) (claims 23 procedurally defaulted because Clark’s bar against successive or abusive petitions is 24 adequate and independent); Flowers v. Foulk, No. C 14-0589 CW, 2016 WL 4611554, at 25

26 3 In an unpublished case, the Ninth Circuit found that the state had shown that the Clark bar was adequate and independent; that petitioner failed to put the bar’s adequacy at issue; 27 and that petitioner’s claims were therefore procedurally defaulted. Du Trieu v. Fox, 764 1 *4 (N.D. Cal. Sept. 6, 2016) (“California’s bar against successive petitions is . . . adequate 2 and independent.”);4 Rutledge v. Katavich, No. C 08-5738 MMC (PR), 2012 WL 2054975, 3 at *6-7 (N.D. Cal. Jun. 5, 2012) (dismissing claim as procedurally defaulted because state 4 supreme court rejected petition with a citation to Clark’s bar against successive petitions 5 and petitioner failed to overcome procedural bar); Ray v. Cate, No. C 11-1604 YGR (PR), 6 2014 WL 3841214, at *15 (N.D. Cal. Aug. 4, 2014) (same); Arroyo v. Curry, No. C 07- 7 03718 SBA (PR), 2009 WL 723877, at *6 (N.D. Cal. Mar. 18, 2009) (“Respondent has 8 satisfactorily established that California’s procedural bar against successive petitions as 9 applied in practice was an adequate state ground for rejecting Petitioner’s second habeas 10 petition.”). 11 Because the state has met its burden to adequately plead the existence of a valid 12 state procedural bar, it became Guerrero’s burden to show cause and prejudice or that a 13 fundamental miscarriage of justice will result if the claim is not adjudicated on the merits. 14 He has not done so. His opposition to the motion does not mention Clark and he discusses 15 procedural default only in wholly conclusory terms: “I request the court not to dismiss 16 petition to consider all my claims as a matter of law. A valid procedural bar can be 17 surmounted only if petitioner demonstrates cause and prejudice, or a fundamental 18 miscarriage of justice[.] Coleman v. Thompson[,] 501 US at 750; Wells v. Maass (9th Cir. 19 1994)[ ]28 F[.]3d 1005, 1008.” (Opp., Dkt. No. 20 at 3.) Rather than discussing 20 procedural default, Guerrero gave a procedural history of his conviction; asserted that he 21 never waived his right to appeal; and made claims that counsel was ineffective during his 22 trial. (Id. at 1-3.) In the operative petition, Guerrero mentions that he “always 23 maintain[ed] my innocence” and then recites the actual innocence standard, but offers no 24 facts to support his claim. (Am. Pet., Dkt. No. 14 at 5.) 25 None of this meets Guerrero’s burden to place that defense in issue “by asserting 26 specific factual allegations that demonstrate the inadequacy of the state procedure, 27 1 including citation to authority demonstrating inconsistent application of the rule.” Bennett, 2 322 F.3d at 586. Nor do his contentions establish either (1) cause for the default, and 3 prejudice, or (2) that failure to consider the defaulted claims will result in a “fundamental 4 miscarriage of justice.” Harris, 489 U.S. at 262. 5 Because the claims are procedurally defaulted and Guerrero has not overcome 6 default, respondent’s motion to dismiss this habeas action is GRANTED. This federal 7 habeas action will be dismissed. 8 b. Claims Not Cognizable 9 Even if Guerrero’s claims were not procedurally defaulted, respondent’s motion to 10 dismiss would be granted on the additional ground that Guerrero’s claims are not 11 cognizable. A defendant who pleads guilty cannot later raise in habeas corpus proceedings 12 independent claims relating to the deprivation of constitutional rights that occurred before 13 the plea of guilty. See Haring v. Prosise, 462 U.S. 306, 319-20 (1983) (guilty plea 14 forecloses consideration of pre-plea constitutional deprivations); Tollett v. Henderson, 411 15 U.S. 258, 266-67 (1973) (“When a criminal defendant has solemnly admitted in open court 16 that he is in fact guilty of the offense with which he is charged, he may not thereafter raise 17 independent claims relating to the deprivation of constitutional rights that occurred prior to 18 the entry of the guilty plea.”). Yet Guerrero claims that counsel rendered ineffective 19 assistance during his trial, not that counsel’s advice to plead guilty was inadequate. (Opp., 20 Dkt. No. 20 at 1-4.) Because he waived any trial ineffectiveness claim when he pleaded 21 guilty, his claim is not cognizable. 22 Guerrero’s claim that his plea was involuntary because of counsel’s poor trial 23 performance also is not cognizable.5 He alleges that he pleaded guilty because he did not 24 want to risk “another trial with the same attorney.” (Am. Pet., Dkt. No. 14 at 4.) This is 25 not a claim that counsel’s advice to plead guilty was faulty, and therefore it is not 26 5 Guerrero states “When counsel has reason to question the defendant[’]s competency to 27 plead guilty, failure to investigate further may constitute ineffective assistance of counsel.” 1 || cognizable. Tollett, 411 U.S. at 267 (after pleading guilty a defendant “may only attack 2 || the voluntary and intelligent character of the guilty plea by showing that the advice he 3 || received from counsel” was inadequate). 4 Respondent’s motion to dismiss is GRANTED on the additional ground that 5 || Guerrero’s claims are not cognizable. 6 CONCLUSION 7 As a result, respondent’s motion to dismiss is GRANTED. This federal habeas 8 || action is DISMISSED. 9 A certificate of appealability will not issue. Guerrero has not shown “that jurists of 10 || reason would find it debatable whether the petition states a valid claim of the denial of a 11 || constitutional right and that jurists of reason would find it debatable whether the district || court was correct in its procedural ruling.” Slack v. McDaniel, 529 U.S. 473, 484 (2000). 5 13 The Clerk shall terminate all pending motions, enter judgment in favor of respondent, S 14 || and close the file. 3 15 IT IS SO ORDERED. a 16 |] Dated: December 21, 2022 YMde Z 7 IAM H. ORRICK 18 United States District Judge 19 20 21 22 23 24 25 26 27 28