INTRODUCTION

14 In 1996, Michael Pearson was convicted on two counts of first-degree murder 15 accompanied by the multiple murder special circumstance and was sentenced to death on both 16 counts. His convictions and sentence were affirmed on appeal. People v. Pearson, 56 Cal.4th 393 17 (2013). He has filed a federal petition for writ of habeas corpus and respondent has asserted 18 procedural defenses to some of the claims alleged in the petition. This order addresses 19 respondent’s procedural defenses. 20

STATEMENT

21 According to the opinion of the California Supreme Court on direct appeal, it was 22 “undisputed” at trial that petitioner “hunted down and fatally shot two of his former coworkers” at 23 the Richmond Housing Authority minutes after he was fired for repeatedly threatening to carry out 24 a mass shooting at the Authority. 56 Cal.4th at 403. Following its decision affirming petitioner’s 25 conviction and sentence, the California Supreme Court issued the following summary denial of 26 petitioner’s state petition for habeas corpus relief: 27 1 The petition for writ of habeas corpus is denied. All claims are denied on the 2 merits. Claims 2 through 5 (except to the extent they allege trial counsel was 3 ineffective), 6, and 10 (except to the extent it alleges the trial court erred by permitting Carol Walser, Ph.D., to testify concerning temporal lobe epilepsy) are 4 procedurally barred under In re Seaton (2004) 34 Cal.4th 193, 199, because petitioner failed to preserve the claims at trial. (See also In re Reno, 55 Cal.4th 5 428, 443, 476–478.) 6 In re Pearson, S175920 (Jan. 24, 2018). 7 Respondent argues that the California Supreme Court’s rejection of some of petitioner’s 8 claims on the procedural grounds articulated above causes those claims to be procedurally 9 defaulted in this federal habeas proceeding (Resp.’s Br. (Docket No. 33) 4–9). Respondent further 10 argues that petitioner has not demonstrated cause and prejudice to excuse his procedural default of 11 such claims (ibid.). Petitioner contends that the procedural rule relied upon by the California 12 Supreme Court in denying his habeas claims is not “adequate” to foreclose federal habeas review, 13 and that, therefore, his claims are due to be resolved on their merits in federal court (Pet.’s Opp. 14 (Docket No. 34) 3–6). Despite requesting and receiving an extension of time in which to file a 15 reply brief to address petitioner’s arguments, respondent failed to do so. 16 ANALYSIS 17 Under the procedural default doctrine, “a federal court will not review the merits of claims, 18 including constitutional claims, that a state court has declined to hear because the prisoner failed to 19 abide by a state procedural rule.” Martinez v. Ryan, 566 U.S. 1, 9 (2012) (citing Coleman v. 20 Thompson, 501 U.S. 722, 747–48 (1991)). “A state court’s invocation of a procedural rule to deny 21 a prisoner’s claims precludes federal review of the claims if, among other requisites, the state 22 procedural rule is a nonfederal ground adequate to support the judgment and the rule is firmly 23 established and regularly followed.” Id. at 9–10 (citations omitted). In other words, in the 24 established lexicon of federal habeas corpus law, the state procedural rule relied upon by the state 25 court must be “adequate” and “independent.” See Coleman, 501 U.S. at 729. A state procedural 26 rule is “independent” unless it appears “to rest primarily on federal law or appears to be 27 interwoven with federal law.” Id. at 734. A state procedural rule is “adequate” if it is “firmly 1 established and regularly followed” at the time the petitioner is claimed to have committed the 2 default. Tong Xiong v. Felker, 681 F.3d 1067, 1075 (9th Cir. 2012) (citing Ford v. Georgia, 498 3

U.S. 411, 424 (1991)).

4 The procedural default rule is not applied without exception. If a petitioner has 5 procedurally defaulted a claim, “federal habeas review of the claim is barred unless the prisoner 6 can demonstrate cause for the default and actual prejudice as a result of the alleged violation of 7 federal law, or demonstrate that failure to consider the claims will result in a fundamental 8 miscarriage of justice.” Coleman, 501 U.S. at 750. In order to show “cause” for his default, the 9 petitioner must show that some factor external to the defense prevented his counsel from raising 10 the claim in the state courts. Murray v. Carrier, 477 U.S. 478, 488 (1986). “External factors 11 include obstacles such as a ‘showing that the factual or legal basis for a claim was not reasonably 12 available to counsel,’ or that ‘interference by officials . . . made compliance impracticable.’” 13 Bradford v. Davis, 923 F.3d 599, 612 (9th Cir. 2019) (quoting Murray, 477 U.S. at 488). To 14 establish “prejudice,” the petitioner must show “not merely that the errors at . . . trial created a 15 possibility of prejudice, but that they worked to his actual and substantial disadvantage, infecting 16 his entire trial with error of constitutional dimensions.” Murray, 477 U.S. at 494 (quoting United 17 States v. Frady, 456 U.S. 152, 170 (1982) (internal quotation marks omitted) (emphasis omitted)). 18 The “fundamental miscarriage of justice” exception to procedural default applies in “an 19 extraordinary case, where a constitutional violation has probably resulted in the conviction of one 20 who is actually innocent.” Id. at 496. 21 Procedural default is an affirmative defense and, accordingly, the burden of pleading and 22 ultimately proving the adequacy and independence of a state rule rests with the state. Bennett v. 23 Mueller, 322 F.3d 573, 585 (9th Cir. 2003). Our circuit applies a burden shifting framework: 24 Once the state has adequately pled the existence of an independent and adequate 25 state procedural ground as an affirmative defense, the burden to place that defense in issue shifts to the petitioner. The petitioner may satisfy this burden by asserting 26 specific factual allegations that demonstrate the inadequacy of the state procedure, including citation to authority demonstrating inconsistent application of the rule. 27 Once having done so, however, the ultimate burden is the state’s. 1 Id. at 586. 2 Respondent has specifically pleaded the affirmative defense of procedural default with 3 respect to the claims, or parts of claims, found procedurally barred by the California Supreme 4 Court in denying petitioner’s state habeas corpus petition (see Ans. (Dkt. No. 23) 3). Respondent 5 asserts that the California Supreme Court’s finding of a procedural bar due to petitioner’s failure 6 to preserve those claims at trial precludes federal review because the procedural rule relied upon 7 by the California Supreme Court is adequate and independent (Supp. Mem. (Dkt. No. 23-1) 14– 8 15; Resp.’s Br. (Dkt. No. 33) 4–9). Petitioner argues that the state procedural rule requiring 9 forfeiture of habeas corpus claims for errors not preserved at trial is not adequate as applied to him 10 because, considering that the source of the rule, In re Seaton, was decided in 2004, it could not 11 have been established and consistently applied at the time of his purported default of those claims 12 during his trial in 1996 (Pet.’s Opp. (Dkt. No. 34) 2). 13 Petitioner is correct that, in denying his habeas corpus petition, the California Supreme 14 Court cited In re Seaton in support of its conclusion that some of his habeas claims were 15 procedurally barred due to his failure to preserve those claims at trial. Petitioner is further correct 16 that In re Seaton was decided in 2004, several years after his trial in 1996. In In re Seaton, the 17 California Supreme Court extended its “contemporaneous objection rule,” which had long 18 precluded appellate review of errors that were not raised at trial, to state habeas corpus 19 proceedings. 34 Cal.4th at 198–99. In essence, the California Supreme Court concluded that the 20 same policy considerations informing application of the contemporaneous objection rule in 21 appellate proceedings apply equally in habeas corpus proceedings: 22 A criminal defendant, like any other party to an action, may not sit on his or her 23 rights. Thus, just as a defendant generally may not raise on appeal a claim not raised at trial, a defendant should not be allowed to raise on habeas corpus an issue 24 that could have been presented at trial. If a claim that was forfeited for appeal could nonetheless be raised in a habeas corpus proceeding, the main purpose of the 25 forfeiture rule — to encourage prompt correction of trial errors and thereby avoid unnecessary retrials — would be defeated. 26 Id. at 199–200 (internal citations omitted). 27 1 Petitioner has carried his burden to place respondent’s procedural defense in issue. As 2 argued by petitioner, in order to be adequate, the procedural rule invoked by the state court must 3 be “firmly established and regularly followed by the time as of which it is to be applied.” Tong 4 Xiong, 681 F.3d at 1075 (internal quotations omitted). Petitioner has presented specific factual 5 allegations showing that, at the time he purportedly forfeited his habeas claims by failing to 6 preserve them at his trial, the authority cited by the California Supreme Court in support of the 7 rule requiring forfeiture of habeas claims had not been decided. The question, therefore, is 8 whether respondent has satisfied his ultimate burden of proving the adequacy of the state 9 procedural rule. Respondent did not file a reply brief addressing petitioner’s specific arguments 10 about the inadequacy of the In re Seaton rule. Respondent’s initial brief on procedural defenses 11 only repeats the conclusory assertion that “[p]etitioner may venture no further” on those claims 12 found barred pursuant to In re Seaton “because he failed to preserve the claim[s] for trial” (see, 13 e.g., Resp. Br. 4). This is plainly inadequate to carry respondent’s burden. Although respondent’s 14 brief in support of his answer cites to several cases affirming the adequacy of California’s 15 contemporaneous objection rule (see Dkt. No. 23-1 at 14–15), these cases do not address In re 16 Seaton — indeed, many predate In re Seaton — and, read together, they establish nothing more 17 than that the contemporaneous objection rule has been found adequate where it has been applied 18 by state appellate courts to preclude direct appellate review of errors not raised at trial. 19 There is a reasoned, nuanced argument to be made that In re Seaton does not announce a 20 new procedural rule and, therefore, provides an adequate basis for finding a procedural default 21 even as to claims that were not preserved at trials predating In re Seaton. See, e.g., Crew v. Davis, 22 Civ. No. 4:12-cv-04259-YGR, 2015 WL 7720737, at *8 (N.D. Cal. Nov. 30, 2015) (finding that In 23 re Seaton relies upon California’s “already existing contemporaneous objection rule” and is 24 adequate to bar federal review of claims that were not preserved at trial occurring more than 25 fifteen years prior to In re Seaton). Respondent has not made this argument, however. Even if he 26 had, district courts in California have reached the opposite conclusion as well. See Lewis v. 27 1 Chappell, No. LA CV11-06395-JAK, 2014 WL 12853210, at *14–*15 (C.D. Cal. Aug. 27, 2014) 2 (quoting Jati v. Long, CV 12-2073-GAF, 2013 WL 5720161, at *9 (C.D. Cal. Oct. 21, 2013) 3 (recognizing a “distinction between ‘California’s procedural bar that an issue may not be raised for 4 the first time on appeal and . . . the precise bar here involving a state petitioner’s attempt to raise 5 the [claim] for the first time on habeas corpus”). While district courts have thus split on the 6 question, our court of appeals has made clear that the adequacy of In re Seaton’s procedural rule 7 remains undecided. See Cook v. Kernan, 948 F.3d 952, 966 n.9 (9th Cir. 2020) (observing, “this 8 court has not yet squarely addressed whether In re Seaton provides an ‘adequate and independent’ 9 state procedural rule that bars federal habeas review”). It follows that, if the adequacy of In re 10 Seaton’s procedural rule has not yet been resolved, there is even greater reason to question the 11 adequacy of the rule’s application to habeas petitions, like petitioner’s, concerning trials predating 12 In re Seaton. 13 Respondent has not meaningfully engaged with petitioner’s specific argument and has not 14 cited any authority demonstrating how the rule of In re Seaton was firmly established and 15 regularly followed at the time of petitioner’s trial. In recognizing that the adequacy of In re 16 Seaton’s habeas corpus forfeiture rule has not been decided despite circuit authority affirming the 17 adequacy of California’s contemporaneous objection rule in the context of direct appeals, Cook at 18 least signals that the two should not be conflated in a procedural default analysis. To the extent 19 that our court of appeals thus discerns a distinction between the contemporaneous objection rule as 20 it applies in the direct appeal and habeas contexts, the adequacy of the rule in the habeas context is 21 deserving of careful consideration and thoughtful analysis. Respondent’s cursory argument and 22 rote citation to inapposite authority, especially considering his failure to even file a reply brief 23 when confronted with petitioner’s specific arguments, does not meet this challenge. Accordingly, 24 respondent has not satisfied his ultimate burden of proving the adequacy of his procedural defense. 25 The practical consequence of the failure of respondent’s procedural defense, at least from 26 the standpoint of case administration, is minimal. The California Supreme Court’s application of 27 1 the In re Seaton procedural bar was expressly only partial as to five of the six claims it found 2 barred. Claims two through five were held not procedurally barred to the extent those claims 3 allege ineffective assistance of counsel and claim ten was not barred to the extent it challenged the 4 admission of certain expert testimony. Hence, even had respondent carried his burden of 5 demonstrating the adequacy of the relevant procedural rule, consideration of the merits of parts of 6 five of the six claims pursuant to the habeas standard of review, see 28 U.S.C. § 2254(d), would 7 still be required. Furthermore, and as previously discussed, even if petitioner’s claims could be 8 found procedurally defaulted, he is nevertheless entitled to merits review of such claims if he can 9 show cause and prejudice for his default. One method of showing such cause and prejudice is 10 demonstrating that the default was the product of the ineffective assistance of counsel. See, e.g., 11 Edwards v. Carpenter, 529 U.S. 446, 451 (2000). Considering that most of the subject claims 12 already partly rely upon allegations of ineffective assistance of counsel which are expressly not 13 procedurally barred, the cause and prejudice and merits inquiries are even more naturally aligned. 14 Finally, because the California Supreme Court denied all claims, including those it found barred, 15 on the merits, the failure of respondent’s procedural defense does not result in de novo review of 16 petitioner’s claims. Rather, all claims, including all sub-claims, are properly subject to review 17 pursuant to the deferential standard of § 2254(d). 18

CONCLUSION

19 Respondent has failed to sustain his burden of proving the adequacy of the state procedural 20 rule which he argues has caused the procedural default some of petitioner’s claims. Accordingly, 21 claims two through six and ten, wholly or partially, are not procedurally defaulted from review in 22 this federal habeas corpus proceeding. The parties have already agreed upon the grouping of 23 claims for merits briefing pursuant to § 2254(d), including those claims that respondent has argued 24 are procedurally defaulted, and have agreed to meet and confer and propose a schedule for briefing 25 26 27 1 of the first group (see 11/26/19 Order (Dkt. No. 32)). The parties shall so commence. 2

IT IS SO ORDERED.

3 Dated: December 9, 2020 4 5 ________________________________

WILLIAM ALSUP

6

UNITED STATES DISTRICT JUDGE

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