Joseph Murl Bennett v. Glen Mueller, Warden Cal Terhune, Director Attorney General of the State of California

Joseph Murl Bennett appeals the district court’s order adopting the Magistrate Judge’s Report and Recommendation denying his Petition for Writ of Habeas Corpus on the state procedural ground of untimeliness. We must decide whether the district court erred in concluding that the California Supreme Court’s denial of Bennett’s petition “on the merits and for lack of diligence” constituted an independent and adequate state ground so as to render his habeas petition proeedurally defaulted. In so doing, we must determine whether the state court’s reliance upon In re Clark, 5 Cal.4th 750, 21 Cal.Rptr.2d 509 , 855 P.2d 729 (Cal.1993), and In re Robbins, 18 Cal.4th 770 , 77 Cal.Rptr.2d 153 , 959 P.2d 311 (Cal.1998), for untimeliness is free from entanglement with federal law and based upon a well-established and consistently applied rule. We agree with the district court that reliance upon Clark and Robbins constitutes an independent state ground. We must reverse on the question of adequacy, however, because we cannot conclude on this record that California has regularly and consistently applied the untimeliness bar in habeas cases. We remand this question to the district court to…