Tsetse v. Neuschmid

• Court: District Court, N.D. California
• Decided: February 5, 2021
• Docket: 3:18-cv-01876
• Status: Unknown

Opinion

1 2 3 IN THE UNITED STATES DISTRICT COURT 4 FOR THE NORTHERN DISTRICT OF CALIFORNIA 5 6 PRINCE F. TSETSE, No. C 18-1876 WHA (PR) 7 Petitioner, ORDER GRANTING IN PART AND 8 DENYING IN PART MOTION TO v. DISMISS; GRANTING LEAVE TO 9 FILE EXCESS PAGES; TO SHOW ROBERT NEUSCHMID, CAUSE 10 Respondent. (Dkt. Nos. 52, 57) 11 / 12 Petitioner, a California prisoner proceeding pro se, filed this habeas petition under 28 13 U.S.C. § 2254 challenging his conviction in state court. The original petition claimed 14 ineffective assistance of counsel, and subsequently petitioner received a stay to exhaust two 15 additional claims of prosecutorial misconduct and actual innocence. He exhausted those two 16 claims in a failed habeas petition to the California Supreme Court, and then he renewed his 17 Second Amended Petition (“SAP”) here, which included his three exhausted claims. 18 Respondent was ordered to filing an answer or a motion to dismiss. He chose to file a motion to 19 dismiss, and petitioner filed an opposition. Respondent was ordered to file a reply brief twice, 20 but he did not do so (ECF Nos. 48 (“[R]espondent shall file a . . . reply”), 56 (“[R]espondent 21 shall file a reply . . . ”) (emphasis added)). 22 Respondent moves to dismiss the two newly-added claims — prosecutorial misconduct 23 and actual innocence — as procedurally defaulted. A federal court will not review questions of 24 federal law decided by a state court if the decision also rests on a state law ground that is 25 independent of the federal question and adequate to support the judgment. Coleman v. 26 Thompson, 501 U.S. 722, 729-30 (1991). Petitioner exhausted these claims in a habeas petition 27 to the California Supreme Court, which denied the petition summarily with citations to In re 28 Dixon, 41 Cal. 2d 756, 264 P.2d 513 (Cal. 1953) (to bring a claim in a state habeas corpus 1 action a petitioner must first, if possible, have pursued the claims on direct appeal), and In re 2 Lindley, 29 Cal. 2d 709 (Cal. 1947) (sufficiency of the evidence claims cannot be raised in a 3 state habeas petition). The Dixon and Lindley rules are each adequate and independent state 4 procedural rules barring federal habeas review. See Johnson v. Lee, 136 S. Ct. 1802, 1803-04 5 (2016) (Dixon); Carter v. Giurbino, 385 F.3d 1194, 1198 (9th Cir. 2004) (Lindley). 6 The California Supreme Court’s citations to Dixon and Lindley would ordinarily bar 7 federal habeas review of petitioner’s prosecutorial misconduct and actual innocence claims, but 8 petitioner argues — and respondent does not dispute — that two exceptions to the federal 9 procedural default rule apply. The first exception applies when the petitioner demonstrates 10 cause for the default and actual prejudice as a result of the alleged violation of federal law, and 11 the second exception applies if failure to consider the claims will result in a fundamental 12 miscarriage of justice. Coleman, 501 U.S. at 750. Petitioner argues that there was cause for his 13 default, namely appellate counsel refused his request to raise his claims of prosecutorial 14 misconduct and actual innocence on direct appeal. See McClesky v. Zant, 499 U.S. 467, 493 15 (1991) (ineffective assistance of counsel may constitute cause excusing procedural default). He 16 also argues that prejudice arose from this default insofar as the claims would have succeeded on 17 direct appeal. He further claims that he was actually innocent, which, if true, establishes both 18 actual prejudice and a miscarriage of justice. See Schlup v. Delo, 513 U.S. 298, 327 (1995) 19 (setting forth actual innocence exception to procedural default). Respondent has not disputed 20 or addressed these arguments either in a reply brief or in the motion to dismiss. Because 21 respondent does not dispute that these exceptions apply, petitioner’s claims are not dismissed on 22 procedural default grounds. 23 Respondent does correctly argue, however, that actual innocence is not an independent 24 grounds for federal habeas relief. The United States Supreme Court has not recognized a free- 25 standing claim of actual innocence as grounds for federal habeas relief for a non-capital 26 petitioner. See Herrera v. Collins, 506 U.S. 390, 400 (1993); Carriger v. Stewart, 132 F.3d 27 463, 476 (9th Cir. 1997) (en banc). While actual innocence warrants exemption from 28 1 procedural default, petitioner cannot bring the claim as an independent claim for habeas relief. 2 It is hereby ordered as follows: 3 1. The motion to dismiss is GRANTED IN PART AND DENIED IN PART. Petitioner’s third 4 claim based upon actual innocence is DISMISSED. Petitioner’s first two claims in the SAP 5 remain. 6 2. Petitioner’s motion for leave to file an oversized brief is GRANTED. 7 3. Respondent shall file with the court and serve on petitioner, within sixty-three (63) 8 days of the issuance of this order, an answer conforming in all respects to Rule 5 of the Rules 9 Governing Section 2254 Cases, showing cause why a writ of habeas corpus should not be 10 granted based on the two remaining claims in the SAP. In doing so, respondent shall file a new 11 answer with a supporting memorandum that either replaces or supplements the memorandum 12 supporting the original answer. Respondent need not file new copies of previously submitted 13 exhibits. 14 If petitioner wishes to respond to the answer, he shall do so by filing a traverse with the 15 court and serving it on respondent within twenty-eight days of the date the answer is filed. 16 Petitioner shall indicate whether the traverse supplements or replaces the previously-filed 17 traverse. 18 IT IS SO ORDERED. 19 Dated: February 5 , 2021. WILLIAM ALSUP 20 UNITED STATES DISTRICT JUDGE 21 22 23 24 25 26 27 28