(HC) Lund v. Locatelli

• Court: District Court, E.D. California
• Decided: March 20, 2025
• Docket: 2:21-cv-01831
• Status: Unknown

Opinion

1 2 3 4 5 6 7 UNITED STATES DISTRICT COURT 8 FOR THE EASTERN DISTRICT OF CALIFORNIA 9 10 ERIC CURTIS LUND, No. 2:21-cv-1831-DJC-SCR 11 Petitioner, 12 v. ORDER AND 13 IZEN LOCATELLI, et al., FINDINGS & RECOMMENDATIONS 14 Respondents. 15 16 Petitioner is proceeding through counsel in this habeas corpus action pursuant to 28 17 U.S.C. § 2254. On June 7, 2024, respondents filed a partial motion to dismiss the operative third 18 amended § 2254 petition. ECF No. 39. The motion has been fully briefed by the parties. ECF 19 Nos. 42, 44. For the reasons explained in further detail below, the undersigned recommends 20 granting the motion in part and denying it in part. 21 I. Factual and Procedural History 22 Petitioner’s amended habeas corpus petition challenges his 2019 conviction for possession 23 of over 600 images of child pornography in violation of California Penal Code § 311.11(c)(1) 24 following a jury trial in the Solano County Superior Court.1 Petitioner was sentenced to 5 years 25 in prison followed by supervised release and lifetime sex offender registration. He was released 26 from prison on October 10, 2020 and completed supervised release on October 15, 2021. 27

28 1 Petitioner’s first trial ended in a mistrial due to a hung jury. 1 A. Direct Appeal and First Round of State Collateral Review 2 Petitioner appealed his conviction to the California Court of Appeal, which affirmed it on 3 June 1, 2021 in a published decision. ECF No. 16-23. During the pendency of his direct appeal, 4 petitioner filed his first state habeas petition in the California Court of Appeal on January 11, 5 2021. This habeas petition was filed by petitioner’s retained appellate counsel. By separate order 6 also filed on June 1, 2021, the California Court of Appeal denied petitioner’s habeas application. 7 ECF No. 16-27. 8 Petitioner submitted two separate petitions for review in the California Supreme Court 9 challenging the denial of his direct appeal as well as habeas relief. See ECF Nos. 16-24, 16-28. 10 The California Supreme Court denied the petition for review of the habeas denial in an 11 unreasoned decision on August 11, 2021. ECF No. 16-29. The petition for review of the direct 12 appeal decision was denied on August 18, 2021. ECF No. 16-24 at 132 (Docket Sheet). 13 B. Federal Habeas Proceedings 14 Petitioner commenced the instant federal habeas action on October 4, 2021 while still in 15 constructive state custody. ECF No. 1. Contemporaneously with that filing, petitioner requested 16 a stay and abeyance pursuant to Rhines v. Weber, 544 U.S. 269 (2005). ECF No. 3. 17 By stipulation of the parties and by order entered on November 15, 2022, petitioner was 18 granted leave to file a second amended habeas application. ECF No. 24. The court granted 19 petitioner’s motion for a stay and abeyance of the second amended petition pursuant to Rhines on 20 March 31, 2023. ECF No. 26. 21 C. Second Round of State Collateral Review 22 On April 3, 2023, petitioner submitted a second state habeas corpus application in the 23 California Supreme Court. ECF No. 36-1. That habeas application was denied on September 20, 24 2023 with a citation to People v. Villa, 45 Cal.4th 1063, 1066 (2009), because petitioner was no 25 longer in custody. ECF No. 36-11. 26 This court lifted the stay of this action by order entered on March 25, 2024. ECF No. 35. 27 In compliance with this order, petitioner filed the operative third amended habeas petition on 28 April 8, 2024. ECF No. 37. The third amended § 2254 alleges that the prosecution suppressed 1 material evidence of actual innocence; trial counsel was ineffective in numerous ways; there was 2 pervasive prosecutorial misconduct during trial; appellate counsel was ineffective; false evidence 3 was presented at trial; and, petitioner is entitled to relief based on cumulative error. ECF No. 37. 4 II. Motion to Dismiss 5 On June 7th, 2024, respondents filed a partial motion to dismiss the third amended 6 petition, arguing that certain claims are procedurally barred and other claims are untimely. ECF 7 No. 39. With respect to procedural bar, respondents submit that the California Supreme Court’s 8 reliance on the custody requirement articulated in People v. Villa, 45 Cal.4th at 1066, is both 9 independent of federal law and adequate to bar review of the claims raised in petitioner’s second 10 state habeas petition, including all of petitioner’s ineffective assistance of trial and appellate 11 counsel claims as well as the claim that false evidence was presented at trial. ECF No. 39 at 9-11. 12 To the extent that petitioner’s Brady/Schlup claim relies on new factual allegations raised for the 13 first time, these allegations are also barred from review. ECF No. 39 at 11, n. 4. Respondents 14 provide evidence that the California Supreme Court has invoked the Villa rule over 200 times 15 since its inception in 2009. ECF No. 39-1. 16 Respondents also submit that the prosecutorial misconduct claim based on the questioning 17 of Officer Duplissey is procedurally barred from review on the merits because the California 18 Court of Appeal found this subclaim forfeited due to the lack of a contemporaneous objection at 19 trial. ECF No. 39 at 11. Respondents argue that California’s contemporaneous objection rule has 20 been found to be independent of federal law and adequate to bar habeas review on the merits. 21 ECF No. 39 at 11. 22 According to respondents, petitioner has not met his burden of demonstrating adequate 23 cause and prejudice to reach the merits of these procedurally defaulted claims. ECF No. 39 at 13- 24 15. Petitioner's “[f]irst habeas counsel’s alleged omissions were not the proximate cause of 25 petitioner’s procedural default in state court” and do not provide a basis to excuse the procedural 26 default. ECF No. 39 at 15. 27 Respondents additionally contend that some of the claims raised for the first time in 28 petitioner’s third amended habeas petition are untimely because the statute of limitations expired 1 on November 16, 2022. ECF No. 39 at 16. Petitioner’s second round of state habeas review 2 pending between April 3, 2023 and September 13, 2023 did not statutorily toll the limitations 3 period because it had already expired. ECF No. 39 at 16 (citing Ferguson v. Palmateer, 321 F.3d 4 820, 823 (9th Cir. 2003)). As a result, several of the ineffective assistance of trial counsel and 5 prosecutorial misconduct claims raised in the third amended habeas petition are time barred and 6 should be dismissed with prejudice, according to respondents. ECF No. 39 at 17-18 (listing 7 claims). 8 In his opposition, petitioner argues that “when the Supreme Court of California denied 9 Lund’s Second Petition for Writ of Habeas Corpus with citation to Villa, the Court was merely 10 stating that it did not have jurisdiction to provide Lund relief. It was not, as respondents argue, a 11 statement that petitioner engaged in some abuse of the writ that should now cause the claims to be 12 procedurally defaulted in this federal court.” ECF No. 40 at 6. In the alternative, petitioner 13 submits that the Villa rule is neither independent of federal law nor adequate to bar federal habeas 14 review. ECF No. 40 at 7-10. Specifically, petitioner asserts that Villa has been “infrequently” or 15 “possibly never” applied in a similar situation and that the California Supreme Court’s 16 determination that petitioner was not in constructive custody for habeas purposes was an 17 “unexpected” and “freakish” decision. ECF No. 40 at 9-10. Petitioner further contends that he 18 has established cause and prejudice to excuse any default simply because the California Supreme 19 Court only applied a jurisdictional bar and not any other form of state procedural bar like 20 untimeliness or successiveness to petitioner’s second state habeas petition. ECF No. 40 at 13. He 21 also asserts that his default should be excused based on the ineffectiveness of his first state habeas 22 counsel. ECF No. 40 at 16. Lastly, petitioner asserts that a fundamental miscarriage of justice 23 will result if his claims are procedurally barred because he is actually innocent. ECF No. 40 at 24 18. 25 In response to the procedural bar based on the contemporaneous objection rule, petitioner 26 submits that the state court’s use of it was ambiguous because it also addressed the claim on the 27 merits. ECF No. 40 at 19 (citing Harris v. Reed, 489 U.S. 255 (1989)). Moreover, petitioner has 28 //// 1 demonstrated adequate cause and prejudice to excuse any purported procedural default. ECF No. 2 40 at 20. 3 Regarding the timeliness of the new claims in the third amended habeas application, 4 petitioner asserts that they all relate back to earlier timely filed claims in the instant habeas action 5 or a related 42 U.S.C. § 1983 civil rights lawsuit filed in this court. ECF No. 40 at 20-24. 6 By way of reply, respondents describe petitioner’s argument that the Villa decision is a 7 jurisdictional requirement instead of a procedural bar as a “distinction without a difference.” ECF 8 No. 44 at 6. “Strictly speaking, the question is not whether California’s custody requirement is a 9 ‘procedural’ bar or rule, but instead whether the requirement is ‘independent of the federal 10 question and adequate to support the judgment.’” ECF No. 44 at 6 (quoting Coleman v. 11 Thompson, 501 U.S. 722, 729 (1991)). Petitioner’s divination of other procedural bars that the 12 California Supreme Court did not rely on to deny his third state habeas petition does not render 13 the Villa custody requirement any less meaningful as a practical matter. Id. at 8. Similarly, 14 petitioner’s argument that the Villa requirement is not independent of federal law is not supported 15 by any case law. ECF No. 44 at 9. The California and federal custody definitions are separate 16 requirements for separate courts and do not necessarily coincide, as evidenced by petitioner’s 17 circumstances. Id. (citing Lee v. Harris, 226 F.Supp. 3d 992, 997-998 (N.D. Cal. 2016) (finding 18 that petitioner was not in custody for purposes of California’s custody requirement, but in custody 19 for federal habeas purposes)). The adequacy of the Villa custody requirement is established by its 20 existence for decades before the denial of petitioner’s third habeas application, its repeated 21 reaffirmance by the California courts, and its codification in California Penal Code § 1473 . ECF 22 No. 44 at 10. 23 With regard to cause and prejudice to excuse the state procedural bar based on Villa, 24 respondents emphasize that petitioner once again cites no California law adopting the cause and 25 prejudice standard in this context, or incorporating the doctrine as a prerequisite to finding a bar 26 applies in the first instance. ECF No. 44 at 11. More importantly, respondents point out that 27 petitioner does not even attempt to explain why his prior habeas counsel did not raise his claims 28 earlier. According to respondents, “[p]rior habeas counsel could have had sundry reasons for not 1 presenting the new claims, including the reasonable belief that culling the vast number of claims 2 petitioner proposes here was necessary….” Id. at 15. Thus, any asserted ineffective assistance of 3 petitioner’s first habeas counsel to excuse petitioner’s procedural default is unavailing. Petitioner 4 waited almost two years to present a myriad of new ineffective assistance of counsel claims in his 5 second state habeas petition, despite being represented by current counsel and despite being 6 trained as an attorney himself. ECF No. 44 at 15. As a result, respondents submit that petitioner 7 has failed to show cause or prejudice to excuse his procedural default. To the extent that 8 petitioner asserts a fundamental miscarriage of justice will result if his procedurally defaulted 9 claims are not reviewed on the merits, petitioner’s argument equates to legal innocence that does 10 not meet the Schlup actual innocence standard articulated by the Supreme Court to excuse a 11 procedural default. Id. at 16. 12 With regard to petitioner’s procedural default based on the contemporaneous objection 13 rule, respondents emphasize that “a state court’s alternative consideration of a claim on the merits 14 does not invalidate the court’s application of a procedural bar.” ECF No. 44 at 16-17 (citations 15 omitted). Therefore, petitioner’s claim that the prosecutor engaged in misconduct by testifying as 16 a witness when examining Officer Duplissey is procedurally defaulted and should be dismissed. 17 Id. at 17. 18 Respondents reply to each of petitioner’s arguments that his newly presented claims are 19 not untimely because they relate back to claims in the timely filed second amended § 2254 20 petition. ECF No. 44 at 17-20. Respondents withdraw their timeliness challenge to the IAC 21 claim based on the failure to introduce an explanation for the lack of dispatch data pertaining to 22 petitioner. See ECF No. 37 at 29, ¶ 88. Respondents also assert that the relation back doctrine 23 only applies to a previously submitted habeas corpus petitions and not the separate civil rights 24 action that petitioner filed. ECF No. 44 at 18-19. 25 III. Petitioner’s Requests for Judicial Notice 26 Contemporaneously with the filing of the third amended § 2254 application, petitioner 27 submitted a request for judicial notice pursuant to Rule 201(b) of the Federal Rules of Evidence. 28 ECF No. 38. In the request, petitioner asks the court to take judicial notice of all of the state court 1 records which the California Supreme Court judicially noticed when denying petitioner’s second 2 state habeas corpus application. See ECF Nos. 36-4; 36-5; 36-6; 36-7; 36-8; 36-9; 36-10. The 3 request also seeks to take judicial notice of California Highway Patrol’s responses to petitioner’s 4 state public records requests. ECF Nos. 36-9 at 53-58 (Exhibits 23 and 24 to Petitioner’s Motion 5 for Judicial Notice filed in the California Supreme Court); see also ECF No. 36-11 (denying 6 request for judicial notice of these documents). In addition, petitioner requests the court take 7 judicial notice of a California jury instruction on consciousness of guilt and a Reporter’s 8 Transcript of a pretrial hearing on March 1, 2017. ECF No. 38 at 6-37. 9 In a second request, petitioner asks the court to take judicial notice of a public 10 admonishment, issued on May 23, 2024, of the trial judge who presided over his trial for conduct 11 that occurred in two different criminal hearings. ECF No. 41. According to petitioner, this 12 evidence is relevant to his IAC claim for withdrawing previous trial counsel’s pending motion to 13 disqualify the trial judge for bias. Petitioner asserts that this public admonishment demonstrates 14 that the trial judge “had a habit of engaging in conduct that gave the appearance of bias and 15 aligning himself with the prosecution against criminal defendants.” ECF No. 41 at 4. 16 Respondents filed an opposition to the second request for judicial notice because the 17 public admonishment of petitioner’s trial judge in a subsequent unrelated case is not at issue in 18 the present habeas corpus proceeding. ECF No. 42. Respondents further argue that petitioner 19 provides no authority allowing judicial notice to demonstrate a trial judge’s propensity for 20 misconduct or “suggesting that evidence of subsequent misconduct by a jurist is relevant to show 21 misconduct in a previous, unrelated matter.” ECF No. 42 at 2. 22 IV. Legal Standards 23 A. Procedural Default 24 The procedural default doctrine forecloses federal review of a state prisoner's federal 25 habeas claims if those claims were defaulted in state court pursuant to an independent and 26 adequate state procedural rule. See Coleman v. Thompson, 501 U.S. 722, 729-30 (1991). 27 Generally, “federal habeas relief will be unavailable when (1) ‘a state court [has] declined to 28 address a prisoner’s federal claims because the prisoner had failed to meet a state procedural 1 requirement,’ and (2) ‘the state judgment rests on independent and adequate state procedural 2 grounds.’” Walker v. Martin, 562 U.S. 307, 316 (2011) (quoting Coleman, 501 U.S. at 729-30). 3 A state procedural rule is “adequate” only if it is clear, consistently applied, and well established 4 at the time of petitioner’s default. See Walker, 562 U.S. at 316; Calderon v. United States Dist. 5 Court (Bean), 96 F.3d 1126, 1129 (9th Cir. 1996). The respondent bears the burden of proof with 6 respect to the “adequacy” of a state procedural bar. Bennett v. Mueller, 322 F.3d 573, 585-86 7 (9th Cir. 2003). “[A] procedural default does not bar consideration of a federal claim on either 8 direct or habeas review unless the last state court rendering a judgment in the case ‘clearly and 9 expressly’ states that its judgment rests on a state procedural bar.” Harris v. Reed, 489 U.S. 255, 10 263 (1989). Furthermore, a federal habeas court may still consider the merits of an otherwise 11 procedurally defaulted claim if the petitioner successfully makes a showing of “cause” and 12 “prejudice” or that a fundamental miscarriage of justice will results. See Martinez v. Ryan, 566 13 U.S. 1, 10-11 (2012); Coleman, 501 U.S. at 750. 14 B. Statute of Limitations 15 Section 2244(d)(1) of Title 28 of the United States Code contains a one-year statute of 16 limitations for filing a habeas petition in federal court. The one-year clock commences from 17 several alternative triggering dates which are described as: 18 (A) the date on which the judgment became final by the conclusion of direct review or the expiration of the time for seeking such review; 19 (B) the date on which the impediment to filing ... is removed, if the 20 applicant was prevented from filing by such State action; 21 (C) the date on which the constitutional right asserted was initially recognized by the Supreme Court ... and made retroactively 22 applicable to cases on collateral review; or 23 (D) the date on which the factual predicate of the claim or claims presented could have been discovered through the exercise of due 24 diligence.

25 28 U.S.C. § 2244(d)(1). 26 The statute of limitations is tolled during the time that a properly filed application for state 27 post-conviction or other collateral review is pending in state court. 28 U.S.C. § 2244(d)(2). The 28 tolling provision of § 2244(d)(2) can only pause a clock not yet fully run; it cannot “revive” the 1 limitations period once it has expired (i.e., restart the clock to zero). Thus, a state court habeas 2 petition filed after the expiration of AEDPA’s statute of limitations does not toll the limitations 3 period under § 2244(d)(2). See Ferguson v. Palmateer, 321 F.3d 820, 823 (9th Cir. 2003); 4 Jiminez v. Rice, 276 F.3d 478, 482 (9th Cir. 2001). 5 Under Rule 15(c)(2) of the Federal Rules of Civil Procedure, an amendment of a pleading 6 relates back to the date of the original pleading when “the claim or defense asserted in the 7 amended pleading arose out of the conduct, transaction, or occurrence set forth or attempted to be 8 set forth in the original pleading.” This rule applies in habeas corpus proceedings. See Mayle v. 9 Felix, 545 U.S. 644, 650 (2005); Anthony v. Cambra, 236 F.3d 568, 576 (9th Cir. 2000). In 10 Mayle, the Supreme Court held that relation back is appropriate if the claim to be amended into 11 the petition is tied to the original timely petition by “a common core of operative facts.” Mayle, 12 545 U.S. at 664. Conversely, the claim does not relate back when it asserts a new ground for 13 relief supported by facts that differ in both “time and type” from those the original pleading set 14 forth. Id. at 650. 15 V. Analysis 16 A. Requests for Judicial Notice 17 Petitioner’s first request for judicial notice is based, in large part, on exhibits submitted 18 with petitioner’s second state habeas petition filed in the California Supreme Court. However, 19 the California Supreme Court denied this habeas petition on procedural grounds and did not reach 20 the merits. Since Cullen v. Pinholster, 563 U.S. 170 (2011), limits this court’s habeas review to 21 evidence that was considered by the state court when the claims were adjudicated on the merits, 22 petitioner’s request for judicial notice must be denied. Pinholster, 563 U.S. at 182 (emphasizing 23 that “the record under review is limited to the record in existence at that same time i.e., the record 24 before the state court”). This court cannot consider this evidence for the first time on federal 25 habeas review. To the extent that petitioner’s request seeks judicial notice of a California jury 26 instruction and a Reporter’s Transcript of proceedings in petitioner’s trial, judicial notice of these 27 documents is not necessary. Petitioner can supplement the state court record in this case with the 28 transcript from the pretrial hearing if it is relevant for consideration of the merits of any claim for 1 relief. Any jury instructions requested by counsel or given by the trial court are already included 2 in the lodged Clerk’s Transcripts in this case. Therefore, judicial notice of those documents is not 3 necessary. For all these reasons, the court denies petitioner’s first request for judicial notice. 4 ECF No. 38. 5 With respect to the second request for judicial notice, the trial judge’s misconduct in 6 subsequent and unrelated criminal cases is not relevant in this federal habeas proceeding. ECF 7 No. 41. For this reason, the court denies petitioner’s second request for judicial notice. 8 B. Procedural Default 9 1. Villa Bar 10 This case demonstrates the problems that are created when a federal habeas petitioner 11 litigates his challenges to his state court conviction seriatim. AEDPA created new procedural 12 rules governing federal habeas petitions, including a one year statute of limitations, that were 13 designed to expedite and streamline federal court review of state criminal convictions. In this 14 case, petitioner pursued multiple rounds of state collateral review. By the time he filed his second 15 state habeas petition, he had been released from prison and discharged from post-release 16 community supervision (“PRCS”). As a result, the California Supreme Court denied his habeas 17 petition, citing to People v. Villa, 45 Cal.4th 1063 (2009). The clear and express citation to Villa 18 signified that the California Supreme Court determined that petitioner was precluded from relief 19 based on California Penal Code § 1473(a) since he was no longer in any form of custody due to 20 the conviction he was challenging. See Harris, 489 U.S. at 263 (state procedural bar must be 21 “clearly and expressly” applied by the state court). The undersigned finds that respondents have 22 met their initial burden of citing to the state procedural bar that was relied upon by the California 23 Supreme Court to deny habeas relief, and demonstrating the adequacy of this state procedural bar. 24 See ECF No. 39-1; see also Insyxiengmay v. Morgan, 403 F.3d 657, 665–66 (9th Cir. 2005) 25 (explaining that “the state has the burden of showing that the default constitutes an adequate and 26 independent ground”). This court further finds that the Villa decision is independent of federal 27 law since it was based on an interpretation of California Penal Code § 1473(a). Petitioner’s 28 argument to the contrary is simply untenable and is rejected by the court. See Lee v. Harris, 226 1 F.Supp.3d 992, 997-98 (N.D. Cal. 2016). Moreover, the California Supreme Court has regularly 2 and consistently applied the Villa rule such that the court finds that it is adequate to support the 3 state court judgment. Therefore, all of petitioner’s ineffective assistance of trial counsel claims, 4 the ineffective assistance of appellate counsel claim, the due process claims based on the 5 presentation of false evidence, and the cumulative error claim based on these issues are now 6 procedurally defaulted and should be dismissed from the third amended § 2254 petition. 7 Respondent’s motion to dismiss also points out that petitioner’s third amended petition 8 raises an entirely new ineffective assistance of counsel claim that remains unexhausted in state 9 court. ECF No. 39 at 10 n. 3; see ECF No. 37 at 42 (failure to challenge the probable cause for 10 the Warrant E). Petitioner does not contest this anywhere in his opposition to the motion to 11 dismiss. The undersigned finds that this IAC claim is technically exhausted but procedurally 12 defaulted based on the implied state law bar of Villa since petitioner remains out of custody and 13 would not be able to return to state court at this juncture to seek relief on it. See Coleman, 501 14 U.S. at 732 (explaining that “[a] habeas petitioner who has defaulted his federal claims in state 15 court meets the technical requirements for exhaustion; there are no state remedies any longer 16 ‘available’ to him.”); Hurles v. Ryan, 752 F.3d 768, 779-780 (9th Cir. 2014) (finding IAC claims 17 procedurally defaulted where the Arizona Supreme Court would deem them waived as a matter of 18 state law if petitioner returned to exhaust his state court remedies). Therefore, the court finds that 19 this IAC subclaim is also procedurally defaulted and should be dismissed with prejudice. 20 2. Contemporaneous Objection Bar 21 One of the subclaims alleged in petitioner’s prosecutorial misconduct claim was denied on 22 direct appeal based on California’s contemporaneous objection rule. The California Court of 23 Appeal found that “[b]ecause Lund neither objected to the prosecutor’s line of questioning on the 24 ground he now raises nor requested an admonition, he has forfeited this argument.” ECF No. 16- 25 23 at 47 (direct appeal opinion). The Court of Appeal alternatively concluded that the claim 26 failed on the merits “because the prosecutor’s questions of Duplissey about interactions she had 27 with him are not equivalent to her appearing as a witness.” ECF No. 16-23 at 48. The state 28 court’s alternative ruling on the merits does not vitiate the procedural bar based on petitioner’s 1 lack of a contemporaneous objection. See Harris, 489 U.S. at 264 n. 10; see also Fauber v. Davis, 2 43 F.4th 987, 1002 (9th Cir. 2022) (finding prosecutorial misconduct claim procedurally 3 defaulted on federal habeas review based on the California Supreme Court’s rejection of the 4 claim based on the failure to raise a contemporaneous objection in the trial court notwithstanding 5 the California Supreme Court’s alternative ruling on the merits of the claim). Moreover, 6 California’s rule requiring a contemporaneous objection to preserve issues for appeal has been 7 deemed to be independent and adequate to bar federal review of constitutional claims. See 8 Fairbank v. Ayers, 650 F.3d 1243, 1256-57 (9th Cir. 2011) (finding that California's 9 contemporaneous objection rule was independent and adequate to bar federal review when a 10 defense attorney failed to object to alleged prosecutorial misconduct). Respondents have 11 therefore met their burden of proving a state court rule barring review of this prosecutorial 12 misconduct claim. See Bennett v. Mueller, 322 F.3d 573, 585-86 (9th Cir. 2003) (adopting a 13 burden shifting approach to reviewing procedural default issues). Petitioner does not challenge 14 the independence or adequacy of California's contemporaneous objection rule. Accordingly, this 15 court finds that petitioner’s prosecutorial misconduct subclaim based on the prosecutor’s 16 questions to Officer Duplissey is procedurally defaulted based on California’s contemporaneous 17 objection rule. See ECF No. 37 at 57, ¶ 140(a). 18 C. Cause and Prejudice to Excuse Procedural Default 19 To excuse these procedural defaults, petitioner asserts that his first state habeas counsel 20 was ineffective for not raising these claims.2 In Martinez v. Ryan, 566 U.S. 1, 5 (2012), the 21 Supreme Court concluded that “a federal habeas court may excuse a procedural default of an 22 ineffective-assistance claim when the claim was not properly presented in state court due to an 23 attorney’s errors in an initial-review collateral proceeding.” 24 On the record in this case, the undersigned finds that the IAC of post-conviction counsel 25 was not the cause of petitioner’s failure to file his second state habeas petition while he was still 26 2 Petitioner’s argument that this court is required to accept the California Supreme Court’s 27 implicit ruling that he had presented adequate cause and prejudice to excuse any additional state procedural bar besides the custody requirement is not supported in law or logic. This argument is 28 categorically rejected as unsound and will not be discussed in further detail. 1 in custody. See Wainwright v. Sykes, 433 U.S. 72 (1977) (adopting the cause and prejudice 2 standard to excuse the procedural default of a federal habeas claim). Current counsel faults first 3 state habeas counsel for not including all the IAC claims, even though the facts supporting them 4 were available in 2021. However, there was more than a two year delay between the filing of 5 petitioner’s first and second state habeas petitions in this case. Petitioner does not explain this 6 delay in any of his filings.3 “[T]he existence of cause for a procedural default must ordinarily 7 turn on whether the prisoner can show that some objective factor external to the defense impeded 8 counsel’s efforts to comply with the State’s procedural rule.” Murray v. Carrier, 477 U.S. 478, 9 489 (1986). Here, petitioner points to no objective external factor that prevented him from filing 10 his second state habeas petition while he was still in custody. As a result, the undersigned finds 11 that the IAC of first state habeas counsel does not excuse the default in this case. See Lee, 226 12 F.Supp.3d at 999 (rejecting petitioner’s argument for cause to excuse procedural default where 13 petitioner “did not make a state filing for a writ of habeas corpus until more than two years 14 later….”). For this reason, the court concludes that petitioner has not demonstrated adequate 15 cause to excuse his procedural default. 16 D. Statute of Limitations Bar 17 In the interests of judicial economy, the court does not address respondents’ timeliness 18 argument with respect to the ineffective assistance of trial counsel claims which the undersigned 19 has already concluded are procedurally defaulted. Therefore, respondents’ statute of limitations 20 argument is limited to the prosecutorial misconduct claims based on: 1) misstating the law on 21 unanimity (ECF No. 37 at 43 ¶ 119); 2) introducing evidence of the wrong type of peer-to-peer 22 network (ECF No. 37 at 44 ¶ 121); 3) “interrogation for the sole purpose of making inferences 23 without evidence” (ECF No. 37 at 54-55 ¶ 136); 4) asking petitioner whether he had a motive to 24 3 Petitioner filed his second state habeas corpus petition in the California Supreme Court on April 25 3, 2023, three days after this court granted his motion for a stay and abeyance. See ECF No. 26. 26 This court emphasizes that its order cannot be construed as granting petitioner permission to file his second state habeas petition in the California Supreme Court. The court’s order merely 27 paused these federal habeas proceedings until his state court remedies were exhausted. Petitioner could have filed a second state habeas petition any time prior to his discharge from supervised 28 release on October 15, 2021, absent a ruling from this court on his pending motion for a stay. 1 lie (ECF No. 37 at 56 ¶ 138); and, 5) asking questions invading spousal privilege (ECF No. 37 at 2 63 ¶ 157). 3 In the motion to dismiss, respondents acknowledge that petitioner’s original, first, and 4 second amended § 2254 petitions were timely filed in this court. ECF No. 39 at 16. The 5 operative third amended § 2254 petition, filed on April 8, 2024, was filed almost one year and 6 five months late.4 Petitioner does not contest respondents’ timeliness calculation, but instead 7 asserts that his claims relate back to the timely filed second amended petition and, thus, should 8 not be dismissed as untimely. ECF No. 40 at 20-24. The court addresses this argument with 9 respect to each individual subclaim of prosecutorial misconduct. 10 1. Prosecutorial misconduct for misstating the law on unanimity 11 With respect to this claim, petitioner asserts that it relates back to the IAC claim for failing 12 to request a unanimity instruction that was presented in the timely filed second amended petition 13 (“SAP”). As part of an IAC claim in the SAP, petitioner asserted that “the prosecutor absolved 14 the jury of the need to unanimously agree upon which specific event—out of the five options 15 presented by the People—was a criminal act in violation of the statute charged.” ECF No. 25 at 16 29. Respondents counter that “the IAC claim and misconduct claim challenge different 17 comments by the prosecutor, and so do not concern the same underlying facts.” ECF No. 44 at 18 19. 19 The court finds that this prosecutorial misconduct subclaim relates back to the common 20 core of facts referenced in the SAP by providing the transcript citation to the prosecutor’s closing 21 argument. The third amended petition provides a more tailored pinpoint citation to the closing 22 argument, but there can be no doubt that this prosecutorial misconduct subclaim is based on the 23 same transaction or occurrence to relate back to the timely filed SAP. The core facts supporting 24 the prosecutorial misconduct subclaim are the exact same type of facts of the IAC claim in the 25

26 4 According to respondents, the statute of limitations commenced on November 17, 2021 and expired one year later on November 16, 2022. The filing of petitioner’s second state habeas 27 petition in the California Supreme Court on April 3, 2023 did not toll the statute of limitations because it had already expired by that point. See Ferguson v. Palmateer, 321 F.3d 820, 823 (9th 28 Cir. 2003). 1 SAC. See Schneider v. McDaniel, 674 F.3d 1144, 1151 (2012). For this reason, the undersigned 2 recommends denying the motion to dismiss this subclaim. 3 2. Prosecutorial misconduct for introducing evidence of the wrong network 4 Here, petitioner asserts that the common core of operative facts were timely raised in the 5 SAP based on an IAC claim for not investigating “key technical questions that arose after 6 observing how the People presented their case in the first trial.” ECF No. 25 at 14. 7 With respect to this subclaim, the court finds that it does not relate back because the 8 operative facts in the SAP referenced “how the People presented their case in the first trial. 9 Specifically, it appeared that the People had presented testimony about the incorrect type of peer- 10 to-peer network….” ECF No. 25 at 14:7-8 (emphasis added). Since the prosecutorial misconduct 11 subclaim concerns petitioner’s second trial, the undersigned finds that it does not involve a 12 common core of operative facts or involve the same transaction or occurrence to relate back to the 13 timely filed IAC claim in the SAP. Thus, this claim should be dismissed with prejudice as 14 untimely. 15 3. Prosecutorial misconduct for questioning to solely make inferences 16 Petitioner contends that the common core of facts about whether other law enforcement 17 witnesses sat in their patrol car for hours while not logged onto the MDC and not using the radio 18 was included in the timely filed second amended petition. According to respondents, “[t]hese 19 claims concern different facts, even if related to the same issue.” ECF No. 44 at 20. 20 The court concludes that this prosecutorial misconduct subclaim does not relate back 21 because the only facts petitioner points to in the SAP are the prosecutor’s closing argument. 22 However, this subclaim challenges the prosecutor’s examination of various law enforcement 23 witnesses that occurred long before closing argument. The core facts differ so drastically in time 24 that the undersigned cannot conclude that they involve the same transaction or occurrence to 25 relate back to the SAP. Accordingly, this prosecutorial misconduct subclaim should be dismissed 26 as untimely filed. 27 4. Prosecutorial misconduct for asking petitioner if he had a motive to lie 28 The only operative facts in the timely SAP that petitioner points to in order to suggest that 1 this claim relates back are portions that argue that the prosecutor expressed personal opinions or 2 asked petitioner whether the prosecution’s witnesses had a motive to lie. Respondents argue that 3 these “claims involve separate facts and witnesses (in part), and do not relate back.” ECF No. 44 4 at 20. 5 This prosecutorial misconduct subclaim relates to the cross-examination of petitioner by 6 specifically asking him if he had a motive to lie. The facts in the SAP that petitioner points to for 7 relation back purposes concern the prosecutor’s cross examination of petitioner about the 8 remaining 17 other witnesses’ motives to lie. ECF No. 25 at 48. In this respect, the core facts 9 underlying the new subclaim are different in type and time from the core facts presented in the 10 SAP. For this reason, the court concludes that this subclaim should be dismissed as untimely. 11 5. Prosecutorial misconduct for invading spousal privilege 12 According to petitioner, this claim relates back to an IAC claim in the timely filed SAP. 13 ECF No. 25 at 32:8-18. Respondents counter that these two claims largely involve separate facts. 14 The transcript citations supporting this subclaim of prosecutorial misconduct involve 15 swaths of the prosecutor’s cross-examination of petitioner. See ECF No. 37 at 63:12-14. 16 However, the asserted common core of facts cited in the SAP relate to a bench conference outside 17 the presence of the jury where defense counsel raised the issue of marital privilege. ECF No. 16- 18 20 at 880-883 (Reporter’s Transcript). Here, the prosecutorial misconduct subclaim relies on 19 entirely new facts that were not included in the SAP. Based on this analysis, respondents’ motion 20 to dismiss this subclaim should be granted because it does not relate back to the timely filed SAP. 21 E. Miscarriage of Justice Exception 22 To excuse his procedural default as well as his untimely claims, petitioner contends that 23 not reviewing his claims on the merits would result in a fundamental miscarriage of justice. 24 However, petitioner’s argument equates to an assertion of cumulative trial errors. “Lund was 25 convicted in a trial that simultaneously involved faulty jury instructions, a shifted burden of 26 proof, a biased judge, pervasive prosecutorial misconduct, presentation of false evidence, 27 suppression of exculpatory evidence, perjury by the government’s law enforcement witnesses, 28 denial of confrontation, and ineffective assistance of trial counsel.” ECF No. 40 at 18. Multiple 1 trial errors do not rise to the level of a fundamental miscarriage of justice as that exception has 2 been delineated by the Supreme Court. It is reserved for the category of cases where “a 3 constitutional violation has probably resulted in the conviction of one who is actually innocent.” 4 Schlup v. Delo, 513 U.S. 298, 327 (1995); Carrier, 477 U.S. at 496. Petitioner’s assertions of 5 cumulative legal error are insufficient to meet this standard of factual innocence. See Casey v. 6 Moore, 386 F.3d 896, 921 n. 27 (9th Cir. 2004) (emphasizing that “the fundamental miscarriage 7 of justice exception applies only when a constitutional violation probably has resulted in the 8 conviction of one actually innocent of a crime and petitioner supplements his constitutional claim 9 with a colorable showing of factual innocence, which [petitioner] has not done.”). 10 VI. Summary of Findings and Recommendations 11 For clarity sake, based on the above findings, the undersigned is recommending dismissal 12 of the following claims in the third amended § 2254 petition: the IAC of trial counsel claims 13 (ECF No. 37 at 16-42); pervasive prosecutorial misconduct claims (ECF No. 37 at 44 ¶ 121, 54- 14 55 ¶ 136, 56 ¶ 138, 57 ¶ 140(a), 63 ¶157); IAC of appellate counsel claims (ECF No. 37 at 64- 15 65); the due process claims based on the presentation of false evidence (ECF No. 37 at 65-69); 16 and, the cumulative error claims only to the extent that they incorporate these claims for relief. 17 Accordingly, IT IS HEREBY ORDERED that petitioner’s requests for judicial notice 18 (ECF Nos. 38, 41) are denied for the reasons indicated herein. 19 IT IS FURTHER RECOMMENDED that: 20 1. Respondents’ partial motion to dismiss (ECF No. 39) be granted in part and denied in 21 part, as indicated herein. 22 2. All of the ineffective assistance of trial counsel claims (ECF No. 37 at 15-42); the 23 ineffective assistance of appellate counsel claim (ECF No. 37 at 64-65); the due process claims 24 based on the presentation of false evidence (ECF No. 37 at 65-69); and, the cumulative error 25 claims to the extent that they are based on these claims (ECF No. 37 at 70) be dismissed with 26 prejudice as procedurally defaulted. 27 3. The prosecutorial misconduct subclaim based on the prosecutor’s alleged testimony 28 during her questioning of Officer Duplissey (ECF No. 37 at 57 ¶ 140(a)) be dismissed as 1 | procedurally defaulted based on California’s contemporaneous objection rule. 2 4. The prosecutorial misconduct subclaims based on: 1) introducing evidence of the 3 || wrong network; 2) questioning solely to make inferences; 3) asking petitioner if he had a motive 4 || to lie; and, 4) invading spousal privilege be dismissed as untimely filed. 5 5. The prosecutorial misconduct claim based on misstating the law on unanimity be 6 || deemed timely filed based on the relation back doctrine and that this portion of respondents’ 7 || motion to dismiss be denied. 8 6. This matter be referred back to the magistrate judge for consideration of the remaining 9 || claims in the third amended § 2254 petition. 10 These findings and recommendations are submitted to the United States District Judge 11 || assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(1). Within twenty one days 12 | after being served with these findings and recommendations, any party may file written 13 | objections with the court and serve a copy on all parties. Such a document should be captioned 14 | “Objections to Magistrate Judge’s Findings and Recommendations.” Any response to the 15 || objections shall be filed and served within twenty one days after service of the objections. The 16 | parties are advised that failure to file objections within the specified time may waive the right to 17 | appeal the District Court’s order. Martinez v. Yst, 951 F.2d 1153 (9th Cir. 1991). 18 | DATED: March 19, 2025 mk 20 SEAN C. RIORDAN 21 UNITED STATES MAGISTRATE JUDGE 22 23 24 25 26 27 28 18