King v. Lamarque ( 2006 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
JAMES EDWARD KING,  No. 05-15757
Petitioner-Appellant,
v.  D.C. No.
CV-00-01988-SI
A. LAMARQUE, Warden,
OPINION
Respondent-Appellee.

Appeal from the United States District Court
for the Northern District of California
Susan Yvonne Illston, District Judge, Presiding
Argued and Submitted
March 14, 2006—San Francisco, California
Filed July 26, 2006
Before: Alfred T. Goodwin, Stephen Reinhardt, and
Michael Daly Hawkins, Circuit Judges.
Opinion by Judge Hawkins;
Concurrence by Judge Reinhardt
8387
8390 KING v. LAMARQUE
COUNSEL
Matthew Dale Alger, Clovis, California, for the petitioner-
appellant.
Lisa Ashley Ott, Deputy Attorney General, San Francisco,
California, for the respondent-appellee.
OPINION
HAWKINS, Circuit Judge:
James Edward King (“King”) appeals the denial of his
habeas corpus petition, raising four issues, only one of which
was listed within the Certificate of Appealability (“COA”) at
the time of argument. Three of the issues pertain to the Cali-
KING v. LAMARQUE 8391
fornia Supreme Court’s dismissal of an ineffective assistance
claim because it determined that King’s habeas petition was
filed after substantial delay. King asserts that the rule is inade-
quate and that his case fits the exceptions that allow federal
courts to review claims that are otherwise procedurally
barred. His fourth claim asserts the district court erred in find-
ing that he was not prejudiced by his trial counsel’s failure to
review a videotape of the victim and failure to object to a ref-
erence to his parole officer within that tape.1
FACTS AND PROCEDURAL HISTORY
A jury convicted King of violating California Penal Code
§§ 288 and 269 by committing a lewd act and three aggra-
vated assaults—rape, oral copulation, and digital penetration
—on a child. King pursued direct appeal and state habeas cor-
pus petitions, both of which were unsuccessful.
King’s first federal habeas petition contained exhausted and
unexhausted claims. After King’s attorney failed to respond to
the government’s motion to dismiss, the district court dis-
missed the petition. King submitted a pro se motion under
Rule 60(b) of Civil Procedure, and the district court set aside
the judgment of dismissal, finding that King’s counsel had
been grossly negligent. The district court stayed its proceed-
ings while King pursued his unexhausted claims in state court.
The California Supreme Court summarily denied King’s sub-
sequent habeas petition, citing two cases barring review of
habeas petitions filed after substantial delay: In re Clark, 855
P.2d 729 (Cal. 1993) [hereinafter Clark], and In re Robbins,
959 P.2d 311 (Cal. 1998). King then filed, and the district
court denied, an amended habeas petition.
1
Applying the relevant standards we grant King’s motion to expand the
COA with regard to his claim addressing the adequacy of California’s
“substantial delay” rule, but deny his motion with regard to his other
uncertified issues. Slack v. McDaniel, 529 U.S. 473, 484 (2000); Schlup
v. Delo, 513 U.S. 298, 327 (1995); Lambright v. Stewart, 220 F.3d 1022,
1026 (9th Cir. 2000).
8392 KING v. LAMARQUE
STANDARD OF REVIEW
We review a district court’s decision to grant or deny a
habeas corpus petition de novo. Clark v. Murphy, 331 F.3d
1062, 1067 (9th Cir. 2003).
DISCUSSION
I
[1] Federal courts will not generally review a question of
federal law decided by a state court if its decision rests on a
state law ground that is independent of the federal question
and adequate to support the judgment. See Coleman v.
Thompson, 501 U.S. 722, 750 (1991). King claims that Cali-
fornia’s rule barring review of habeas claims filed after “sub-
stantial delay” is inadequate and, therefore, does not bar
federal review of his claim. To be adequate, the state’s legal
grounds for its decision must be firmly established and con-
sistently applied. Bennett v. Mueller, 322 F.3d 573, 583 (9th
Cir. 2003).
To be firmly established or consistently applied, a rule must
be clear and certain. See Melendez v. Pliler, 288 F.3d 1120,
1124 (9th Cir. 2002) (citing Morales v. Calderon, 85 F.3d
1387, 1390-92 (9th Cir. 1996)); see also Wells v. Maass, 28
F.3d 1005, 1010 (1994) (“a state rule must be clear, consis-
tently applied, and well-established”). Novel procedural rules
do not bar federal review because petitioners are not put on
sufficient notice that they must comply. See Ford v. Georgia,
498 U.S. 411, 423-25 (1991); NAACP v. Alabama, 357 U.S.
449, 354-358 (1958). Just so, state procedural rules with
overly vague standards do not provide petitioners with suffi-
cient notice of how they may avoid violating the rule. Further-
more, poorly defined procedural rules do not provide courts
the guidance required for consistent application.
[2] California’s timeliness rule bars habeas petitions that
are filed after “substantial delay.” A habeas petitioner in Cali-
KING v. LAMARQUE 8393
fornia must justify any “significant” or “substantial” delay in
seeking habeas corpus relief. Clark, 855 P.2d at 738, 750-51.
There are no standards for determining what period of time or
factors constitute “substantial delay” in noncapital cases.
There are also no standards for determining what factors jus-
tify any particular length of delay. The rule’s ambiguity is not
clarified by the California Supreme Court’s application of the
timeliness bar, in part because the court usually rejects cases
without explanation, only citing Clark and Robbins, as it did
here. See Morales, 85 F.3d at 1392.
[3] California’s timeliness rule applies to both capital and
noncapital cases. In capital cases, California’s Supreme Court
Policies Regarding Cases Arising from Judgments of Death
(“Policies”) create a presumption of timeliness if a petition “is
filed within 90 days of the final due date for the filing of an
appellant’s reply brief.” Clark, 855 P.2d at 751. The Policies
also create more explicit standards for deciding whether there
has been substantial delay when the petitioner has filed after
the ninety-day presumption period. Id. at 751-53. Clark clari-
fied the application of these Policies within capital cases and
provided four specific exceptions for granting review even
when a petition’s “substantial delay” is unjustified. Id. at 758-
59. But Clark did nothing to clarify the application of the
basic “substantial delay” standard with regard to noncapital
cases. Furthermore, the Clark exceptions, specifying when
review can be granted despite “substantial delay,” do nothing
to clarify the “substantial delay” standard itself.
[4] In Morales, we indicated that California’s timeliness
rule was too uncertain, pre-Clark, to be a procedural bar for
capital cases. 85 F.3d at 1391; see also Calderon v. United
States Dist. Court (Bean), 96 F.3d 1126, 1131 (9th Cir. 1996).
The holding in Morales intertwined “inconsistent application”
analysis with “well established” analysis: “We find so much
variation in [the] application of California’s timeliness
requirements before Clark that we conclude that no discern-
ible clear rule then existed for petitions filed more than 90
8394 KING v. LAMARQUE
days after the due date of the reply brief on direct appeal.” Id.Just as inconsistent application leads to ambiguous standards,
overly ambiguous standards almost inevitably lead to incon-
sistent application. See Bennett, 322 F.3d at 573, 583 (citing
Morales, 85 F.3d at 1392).
[5] Bennett specifies the burden-shifting process involved
in determining whether a procedural rule is adequate. 322
F.3d at 586. Once the government has pleaded “the existence
of an independent and adequate state procedural ground as an
affirmative defense, the burden to place that defense in issue
shifts to the petitioner.” Id. The petitioner “may satisfy this
burden by asserting specific factual allegations that demon-
strate the inadequacy of the state procedure, including citation
to authority demonstrating inconsistent application of the
rule.” Id. The burden then shifts back to the government, and
it bears “the ultimate burden of proving the adequacy” of the
relied-upon ground. Id. at 585-86.
The government explicitly pleaded “the existence of an
independent and adequate state procedural ground,” the Cali-
fornia rule against petitions filed after substantial delay, as an
affirmative defense in district court. The burden, therefore,
shifted to King. Bennett, 322 F.3d at 586.
In response, King asserts that the California Supreme
Court’s dismissal of his case demonstrates that it inconsis-
tently applies the timeliness rule because he properly justified
his delay. As the district court noted, this is not proof of
inconsistent application, but simply rehashes the merits of his
arguments before the California Supreme Court.
King fails to explicitly raise the issue of whether the timeli-
ness rule is too uncertain to be well established. The question
then arises: Is simply contesting the adequacy of a state rule
sufficient to meet the petitioner’s burden under Bennett if we
have previously found the rule to be too ambiguous to bar
KING v. LAMARQUE 8395
federal review during the applicable time period? We hold it
is.
[6] Bennett requires the petitioner to “place [the procedural
default] defense in issue” to shift the burden back to the gov-
ernment. 322 F.3d at 586. In most circumstances, the best
method for petitioners to place the defense in issue is to assert
“specific factual allegations that demonstrate the inadequacy
of the state procedure” by citing relevant cases. Id. But where
we have already made a determination regarding the adequacy
of the state procedural rule, the petitioner’s method of placing
the defense in issue must be modified.2
[7] In Ortiz v. Stewart, 149 F.3d 923 (9th Cir. 1998), we
held that a petitioner had not met his burden because we had
already held the state procedural rule to be consistently
applied and the petitioner failed to cite cases demonstrating
subsequent inconsistent application. Id. at 932. This holding
helps prevent inconsistent determinations regarding a state
procedural rule’s adequacy during a given time period. This
same reasoning provides a firm foundation for applying the
Ortiz requirement bilaterally. Once we have found a state pro-
cedural rule to be inadequate, petitioners may fulfill their bur-
den under Bennett by simply challenging the adequacy of the
procedure; the burden then shifts back to the government to
demonstrate that the law has subsequently become adequate.
Here, because we held in Morales that the California timeli-
ness rule was insufficiently clear, the government must show
on remand that the rule has since been clarified for noncapital
cases and that the clarified rule has since been consistently
applied.
2
Bennett did not foreclose alternative methods of “plac[ing] [the]
defense in issue,” stating only that the petitioner “may satisfy this burden
by asserting specific factual allegations . . . .” Id. (emphasis added). Ben-
nett, of course, did not resolve all of the potential issues involved with
applying the “new standard” because it specified the burden-shifting pro-
cess but did not apply it. Id.8396 KING v. LAMARQUE
This holding is necessary to maintain the primary principle
we announced in Bennett: the government bears the ultimate
burden of establishing the adequacy of a rule. This burden
should exist whether or not the petitioner identifies the correct
basis upon which to challenge the adequacy of the rule. If we
held otherwise, the government could avoid its burden under
Bennett, and illogical results would occur. Here, for example,
we would bar King’s claim based on a procedural rule already
found to be inadequate. In essence, we would be holding that
the same rule is adequate in some cases and inadequate in oth-
ers. This defies common sense. A procedural rule is either
adequate or inadequate during a given time period; its ade-
quacy does not depend upon the facts of a petitioner’s case.
[8] By challenging the adequacy of a state procedural rule
we have found to be insufficiently clear in Morales, King has
met his Bennett burden. On remand, the government must
demonstrate that California’s “substantial delay” rule has
become sufficiently clear and consistently applied to justify
barring federal review of King’s claim.3
II
[9] Even where there is an independent and adequate state
procedural rule, if petitioners can demonstrate cause and prej-
udice for the procedural violation, federal review of the
defaulted claim will be permitted. See Coleman, 501 U.S. at
750. King asserts that even if California’s timeliness rule is an
independent and adequate ground, his claim is still reviewable
because he meets the “cause and prejudice” exception for pro-
cedural defaults.
3
Morales specifically reserved the issue of whether Clark successfully
cleared up the uncertainties regarding capital cases. Id.; see also Bennett,
322 F.3d at 583 (stating only that Clark had “attempted to set out a defi-
nite rule” and that it “set out to create a rule that would be consistently
applied”).
KING v. LAMARQUE 8397
To establish cause for a procedural default, a petitioner
must show that “some objective factor external to the defense
impeded counsel’s efforts to comply with the State’s proce-
dural rule.” Murray v. Carrier, 477 U.S. 478, 488 (1986).
King argues that the external factor preventing him from com-
plying with California’s timeliness rule was a lack of money,
which prevented him from being ready to pursue his ineffec-
tive assistance claim. To establish ineffective assistance of
counsel, King needed to show that (1) his counsel’s represen-
tation fell below an objective standard of reasonableness, and
(2) he was, as a result, prejudiced. Strickland v. Washington,
466 U.S. 668, 687 (1984).
King asserts he needed time to raise money to hire an
expert witness and that he needed this expert witness to estab-
lish the “prejudice” prong of his ineffective assistance claim.4
To show prejudice, King had to show that there must be “a
reasonable probability that, but for counsel’s unprofessional
errors, the result of the proceeding would have been differ-
ent,” id. at 694, and that the unprofessional errors were egre-
gious enough “to undermine confidence in the outcome.” Id.[10] When the prosecution’s case rests heavily on physical
evidence and the prosecution witness’s testimony, a defendant
can establish prejudice without securing a favorable expert
opinion. See Schell v. Witek, 218 F.3d 1017, 1028-30 (9th Cir.
2000) (“a failure to solicit the opinion of a fingerprint expert
could have constituted ineffective assistance of counsel” in
the absence of a favorable opinion). Therefore, King could
have supported his claim of prejudice due to ineffective assis-
tance of counsel without securing a favorable expert opinion.
He could have asserted—as he does now—the “total lack of
any objective physical evidence,” the “suspicious explana-
tions” of the witness, and the “numerous inconsistencies in
4
King’s mother provided the funds for his previous lawyers. She states
in a declaration that she did not have more money to hire the needed
expert.
8398 KING v. LAMARQUE
the testimony of the alleged victim and her mother,” to high-
light the significance of the expert medical testimony and its
potentially critical role in the trial.
The expert King eventually secured, Dr. Lee Coleman, but-
tresses King’s claim of prejudice, opining that the medical
findings of the prosecution’s expert “are not evidence for any
prior sexual conduct.” Dr. Coleman’s most compelling find-
ing is that the girl King was convicted of raping had such a
small vagina that it would have been impossible for penetra-
tion to occur without “major tearing injury,” which was not
found.
In the parallel context of showing cause to demonstrate one
is not abusing the writ of habeas corpus, both this court and
the Supreme Court have held that “[if] what petitioner knows
or could discover upon reasonable investigation supports a
claim for relief in a federal habeas petition, what he does not
know is irrelevant.” McCleskey v. Zant, 499 U.S. 467, 498
(1991); Harris v. Vasquez, 949 F.2d 1497, 1514 (9th Cir.
1991). Furthermore, “[o]mission of the claim will not be
excused merely because evidence discovered later might also
have supported or strengthened the claim.” Id.[11] Because what King already knew supported a claim
for ineffective assistance, his desire to wait until he had better
evidence does not constitute cause.5
CONCLUSION
We vacate the district court’s judgment with regard to the
adequacy of the California timeliness rule, otherwise affirm
the district court’s judgment, and remand for further proceed-
ings consistent with this opinion. Each party shall bear its
own costs on appeal.
5
We do not express an opinion as to whether a lack of financial
resources could ever constitute the basis for the “cause and prejudice”
exception.
KING v. LAMARQUE 8399
VACATED IN PART; AFFIRMED IN PART; and
REMANDED.
REINHARDT, Circuit Judge, concurring in part and concur-
ring in the judgment:
I concur in Part I of the majority’s opinion with respect to
the adequacy of California’s timeliness rule. I agree with the
decision to remand the case for a determination whether, since
Morales, the rule has become sufficiently clear and consis-
tently applied to serve as a bar to federal habeas review.
Unlike the majority, however, I would not reach the alter-
native issue regarding the “cause and prejudice” exception for
procedural default. If I did, I would not join the majority’s
opinion on that issue. Specifically, I do not agree that King’s
expert witness merely bolstered, and thus needlessly post-
poned, an already extant Strickland claim. Rather, given the
circumstances of his case, King’s waiting a reasonable period
until he could obtain an expert’s testimony in order to make
a good faith showing of Strickland prejudice would not in my
view serve to default his claim.
The majority relies on Schell v. Witek, 218 F.3d 1017 (9th
Cir. 2000), for the proposition that “a failure to solicit the
opinion of a fingerprint expert could [be found to] consti-
tute[ ] ineffective assistance of counsel” even without the pro-
vision of a fingerprint expert’s opinion. Id. at 1028-29. The
Schell holding was premised, however, “[o]n the distinctive
facts of th[at] case.” Id. at 1028. Further, the Schell court
found that the record did not “clearly reflect . . . whether
Schell’s attorney had in fact consulted a fingerprint expert and
whether that expert gave a favorable report.” Id. at 1230. It
held that “without [such] fully developed information, [it was]
unable to determine whether” Schell’s counsel acted compe-
tently and whether such “deficiencies prejudiced Schell’s
8400 KING v. LAMARQUE
trial”; ultimately, the court remanded for an evidentiary hear-
ing to answer those questions. Id. Schell therefore implies,
contrary to the majority’s suggestion, that the expert opinion
itself may be crucial in determining whether the defendant has
been prejudiced by counsel’s conduct.
In Hasan v. Galaza, 254 F.3d 1150 (9th Cir. 2001), we held
that “to have the factual predicate for a habeas petition based
on ineffective assistance of counsel, a petitioner must have
discovered (or with the exercise of due diligence could have
discovered) facts suggesting both unreasonable performance
and resulting prejudice.” Id. at 1154. In Hasan, the defendant
“had knowledge at the time of trial of some facts to support
an assertion that his trial counsel’s conduct was deficient to
an extent [in failing to investigate].” Id. The court held, how-
ever, that he “did not know at that time — nor did he have
reason to know — what he later learned: the added facts that
such an investigation would have revealed.” Therefore, the
court concluded, he “could not have asserted at that time, in
objective good faith, that he was prejudiced as a result of his
counsel’s deficient performance.” Id. Hasan, like the case
before us, does not fall within the rule upon which the majori-
ty’s opinion relies: “Omission of the claim will not be
excused merely because evidence discovered later might also
have supported or strengthened the claim.” Harris v. Vasquez,
949 F.2d 1497, 1514 (9th Cir. 1991). Here, as in Hasan, the
evidence obtained — from the expert whom King ultimately
retained — would not simply “support” or “strengthen” his
claim; rather, it could well be said to be the only basis on
which the defendant could make a good faith argument that
he had been prejudiced by his counsel’s deficient conduct.
Hasan and Schell together suggest that to demonstrate prej-
udice for the failure to consult an expert, one must be able to
demonstrate what an expert would have said. Thus, I cannot
agree with the majority’s conclusion that King was required,
on pain of default of his constitutional claims, to try to estab-
lish prejudice before he could obtain the assistance of an
KING v. LAMARQUE 8401
expert. Ruling on the issue of cause, however, would require
resolving the additional question whether King’s lack of funds
would permit him to satisfy the due diligence required, or in
other words whether lack of money may constitute an external
factor that impedes a prisoner’s effort to comply with a state’s
procedural rule. This is a difficult question, with many conse-
quential implications, that I would not decide unnecessarily,
and certainly not in this case. As we are remanding on the pri-
mary issue of the adequacy of the California rule, I would
await the district court’s ruling on that point and withhold
judgment on the alternative cause and prejudice argument. In
line with that view, I do not take a position on the funding
question at the present time.