NOT FOR PUBLICATION FILED

UNITED STATES COURT OF APPEALS APR 14 2021

MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS

FOR THE NINTH CIRCUIT

TYQUAN KNOX, No. 19-55111

Petitioner-Appellant, D.C. No. 2:16-cv-09481-JAK-SS v.

RAYMOND MADDEN, Warden, MEMORANDUM*

Respondent-Appellee.

Appeal from the United States District Court for the Central District of California John A. Kronstadt, District Judge, Presiding

Submitted April 12, 2021** Pasadena, California

Before: M. SMITH and IKUTA, Circuit Judges, and VRATIL,*** District Judge.

Petitioner Tyquan Knox (Petitioner) appeals the district court’s denial of his

federal habeas petition. Because the parties are familiar with the facts, we do not

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** The panel unanimously concludes this case is suitable for decision without oral argument. See Fed. R. App. P. 34(a)(2). *** The Honorable Kathryn H. Vratil, United States District Judge for the District of Kansas, sitting by designation. recount them here, except as necessary to provide context to our ruling. We have

jurisdiction under 28 U.S.C. §§ 2253 and 1291. We review de novo a district court’s

denial of a habeas petition, Murray v. Schriro, 882 F.3d 778, 801 (9th Cir. 2018),

and we can affirm on any ground supported by the record, even if it differs from the

district court’s rationale, Ybarra v. McDaniel, 656 F.3d 984, 989 (9th Cir. 2011)

(citations omitted).

The Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA) governs

our review. See Woodford v. Garceau, 538 U.S. 202, 210 (2003). Under AEDPA,

we cannot grant habeas relief unless the state court proceedings resulted in a decision

that was (1) “contrary to, or involved an unreasonable application of, clearly

established Federal law, as determined by the Supreme Court of the United States;”

or (2) “based on an unreasonable determination of the facts in light of the evidence

presented in the State court proceeding.” 28 U.S.C. § 2254(d).

The district court exercised its discretion to address and deny the petition on

the merits without determining whether Petitioner’s claims were procedurally

defaulted. We issued a certificate of appealability regarding whether the state trial

court erred by allowing in-court identification testimony by Dechanne Lane (Lane),

in violation of Petitioner’s right to due process, including whether that issue is

procedurally defaulted. See 28 U.S.C. § 2253(c)(3).

2 Petitioner argues the district court erred by denying his petition and by

concluding the state trial court did not violate his constitutional right to due process

by allowing Lane’s in-court identification testimony at Petitioner’s preliminary

hearing. Respondent-Appellee Raymond Madden (Respondent) argues that

Petitioner’s claim is procedurally defaulted, and, in the alternative, that the district

court properly denied the petition on the merits.

Due to comity and federalism concerns, and the requirement that States have

the first opportunity to correct their own mistakes, federal habeas courts generally

will not review a state court’s denial of a state prisoner’s federal constitutional claim

if the state court’s decision “rests on a state law ground that is independent of the

federal question and adequate to support the judgment.” Coleman v. Thompson, 501

U.S. 722, 729–730 (1991) (citations omitted). A state procedural bar is independent

of federal law unless it rests primarily on, or is interwoven with, federal law. See id.

at 734–35. A state procedural bar is adequate if it is firmly established and regularly

followed at the time it is applied. Ford v. Georgia, 498 U.S. 411, 423–24 (1991).

The California Court of Appeal denied Petitioner’s habeas claim regarding

Lane’s in-court identification by citing to In re Dixon, 41 Cal. 2d 756 (1953), which

signifies the claim was procedurally barred because Petitioner failed to raise it on

direct appeal. Under California law, “habeas corpus may not be used instead of an

appeal to review determinations of fact made upon conflicting evidence after a fair

3 trial.” In re Dixon, 41 Cal. 2d at 760. This rule is colloquially referred to as

California’s “Dixon bar.”

In Johnson v. Lee, the Supreme Court held that California’s Dixon bar was

both firmly established and regularly followed such that it can serve as an “adequate

and independent ground for denying a federal habeas petition . . . .” 136 S. Ct. 1802,

1806–07 (2016) (quoting Walker v. Martin, 562 U.S. 307, 311 (2011)). The Supreme

Court explained that the Dixon bar is “firmly established” because the California

Supreme Court warned defendants for decades that, “absent ‘special circumstances,’

habeas ‘will not lie where the claimed errors could have been, but were not, raised

upon a timely appeal from a judgment of conviction.’” Id. at 1805 (quoting Dixon,

41 Cal. 2d at 759). In addition, the Court explained that the California Supreme Court

eliminated any arguable ambiguity surrounding this bar by reaffirming Dixon in In

re Harris, 5 Cal. 4th 813 (1993) and In re Robbins, 18 Cal. 4th 770 (1998). See

Johnson, 136 S. Ct. at 1805.

Petitioner contends he has sufficient cause and prejudice to overcome the

Dixon bar because his failure to raise his due process claim on direct appeal was

allegedly caused by his appellate counsel’s constitutionally ineffective

representation. See Coleman, 501 U.S. at 752–53 (recognizing “cause and prejudice”

to overcome a state procedural bar may exist when that bar was imposed as a result

of ineffective assistance of counsel during a proceeding when the petitioner had a

4 right to counsel). However, Petitioner failed to exhaust his ineffective assistance of

appellate counsel claim in state court, so it cannot serve as the basis to overcome the

Dixon bar. See Murray v. Carrier, 477 U.S. 478, 485–90 (1986).

To exhaust his state remedies, Petitioner must have given the California courts

a “fair opportunity” to act on his claim of ineffective assistance of appellate counsel

before presenting it in federal court. See O’Sullivan v. Boerckel, 526 U.S. 838, 844

(1999). To be provided a fair opportunity, a state court needs to be apprised that a

petitioner is making a claim under the United States Constitution, and the petitioner

must describe “both the operative facts and the federal legal theory on which his

claim is based so that the state courts [could] have a ‘fair opportunity’ to apply

controlling legal principles to the facts bearing upon his constitutional claim.”

Castillo v. McFadden, 399 F.3d 993, 999 (9th Cir. 2005) (quoting Kelly v. Small,

315 F.3d 1063, 1066 (9th Cir. 2003)); see Anderson v. Harless, 459 U.S. 4, 6 (1982)

(per curiam).

However, “[e]xhaustion demands more than drive-by citation, detached from

any articulation of an underlying federal legal theory.” Castillo, 399 F.3d at 1003.

The Supreme Court recognized that “[f]or purposes of exhausting state remedies, a

claim for relief in habeas corpus must include reference to a specific federal

constitutional guarantee, as well as a statement of the facts that entitle the petitioner

to relief.” Gray v. Netherland, 518 U.S. 152, 162–63 (1996) (citation omitted).

5 A petitioner does not satisfy the exhaustion requirement by presenting the state court

only with the facts necessary to state a claim for relief. Id. at 163. Nor is it enough

to make a general appeal to a constitutional guarantee as broad as due process to

present the substance of such a claim to a state court. Id.

Petitioner’s passing references in his state-court proceedings to ineffective

assistance of appellate counsel are insufficient to exhaust this claim. First, Petitioner

does not contend he raised appellate counsel’s performance in his petition to the Los

Angeles County Superior Court nor California Court of Appeal. Second, Petitioner

does not contend he ever alleged the specific claim he argues here—that appellate

counsel was constitutionally ineffective for failing to raise his due process claim

related to Lane’s allegedly tainted preliminary hearing testimony. And third, neither

the Los Angeles County Superior Court, nor California Court of Appeal, nor

California Supreme Court addressed his passing allegations against appellate

counsel. Instead, the state courts focused on the substance of his claims that related

to alleged ineffective assistance of his trial counsel.

Therefore, Petitioner failed to exhaust his claim for ineffective assistance of

appellate counsel, so it may not serve as the basis to overcome the Dixon bar and

procedural default. Accordingly, we cannot consider the merits of Petitioner’s due

process claim on AEDPA review because the state court’s decision rests on a state

6 procedural bar, California’s Dixon bar, which is independent of the federal question

and adequate to support the state-court judgment. See Coleman, 501 U.S. at 729–30.

AFFIRMED.

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