Cisneros v. Robertson

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4 UNITED STATES DISTRICT COURT

5 NORTHERN DISTRICT OF CALIFORNIA

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7 MIGUEL A. CISNEROS, Case No. 20-cv-07861-HSG

8 Petitioner, ORDER DENYING POST-JUDGMENT

MOTIONS; ADDRESSING RECENT

9 v. PLEADINGS

10 JIM ROBERTSON, Re: Dkt. Nos. 34-39

11 Respondent.

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13 Petitioner, an inmate at Salinas Valley State Prison, filed this pro se action seeking a writ

14 of habeas corpus pursuant to 28 U.S.C. § 2254. On February 9, 2022, the Court denied

15 Respondent’s motion to dismiss the petition as untimely but granted the motion to dismiss the

16 petition as procedurally defaulted, denied a certificate of appealability, and granted judgment in

17 favor of Respondent. Dkt. Nos. 32, 33. Petitioner has filed four post-judgment motions, all

18 requesting that the Court reconsider its dismissal of his petition, and requesting that the Court

19 grant him an evidentiary hearing. Dkt. Nos. 34, 35, 36, 37. For the reasons set forth below, the

20 Court DENIES Petitioner’s post-judgment motions. Dkt. Nos. 34-37.

21 DISCUSSION

22 I. Background

23 The operative petition in this action stated the following cognizable claims for federal

24 habeas relief: (1) the trial court erred in admitting evidence of a prior uncharged act of robbery;

25 (2)there was insufficient evidence to support a conviction for kidnapping in the commission of a

26 carjacking; and (3) the trial court erred in instructing the jury pursuant to CALCRIM 376. Dkt.

27 Nos. 1, 5.

1 barred because the California Supreme Court had applied the Dixon1 rule and the Lindley2 rule in

2 denying Petitioner’s state habeas petition,3 and that both the Dixon rule and the Lindley rule are

3 adequate and independent state procedural rules. Dkt. No. 32 at 12-14. The Court dismissed this

4 petition as procedurally barred. See generally Dkt. No. 32.

5 II. Post Judgment Motions

6 As of this date, Petitioner has filed four post-judgment motions. Dkt. Nos. 34, 35, 36, 37.

7 Dkt. No. 34 is a one-page pleading, titled “Federal Rule 59e Motion to Alter or Amend a

8 Judgment the Dismissing of Petition,” indicating Petitioner’s intent to file a motion to alter or

9 amend judgment pursuant to Fed. R. Civ. P. 59(e), and a motion for relief from judgment pursuant

10 to Fed. R. Civ. P. 60(b)(6). Dkt. No. 34.

11 Dkt. No. 35 is a two-page pleading, titled “Federal Rule 60).b.).6.) Motion to Relief from a

12 Judgment or Order of Dismissing Petition,” listing the following reasons for setting aside the

13 Court’s dismissal: (1) dismissal of the petition has resulted in a miscarriage of justice allowing for

14 the conviction of someone who is actually innocent; (2) due process requires that the judgment be

15 set aside because Petitioner is disabled in that he is incapable of understanding the law or legal

16 procedures; (3) his petition states meritorious claims; (4) habeas relief is appropriate in order to

17 allow for expedited resolution of this action; and (5) there are four exception to the Waltreus rule,

18 including constitutional error and fundamental miscarriage of justice. Petitioner also alleges that

19 his right to a jury trial was violated, the reasonable doubt standard was not applied in this case,

20 and there was structural error in his case. See generally Dkt. No. 35.

21 Dkt. No. 36 is a fifteen page document, titled “Motion to Reconsider Order of Judgment

22 Dismissal of Petition,” that argues that dismissal of the petition would be a miscarriage of justice

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1 The Dixon bar provides that California state courts will not entertain habeas corpus claims that

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could have been, but were not, raised on appeal. In re Dixon, 41 Cal.2d 756, 759 (Cal. 1953).

22 The Lindley bar provides that California state courts will not entertain habeas corpus claims that

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attack the sufficiency of the evidence. In re Lindley, 29 Cal.2d 709, 723 (Cal. 1947).

3 The California Supreme Court applied the Waltreus bar and the Dixon bar to Petitioner’s claim

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that the trial court erred in admitting evidence of a prior uncharged act of robbery; applied the

Dixon bar to Petitioner’s claims of insufficiency of the evidence and instructional error; and also

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applied the Lindley3 bar to the insufficiency of the evidence claim. Dkt. No. 25 at 77; Dkt. No. 32

1 for the following reasons: this is one of the extraordinary cases where the Court cannot be

2 confident in the finding of guilt; the Court should reconsider what tolling Petitioner is entitled to;

3 Petitioner is entitled to equitable tolling because he has been diligently pursuing his rights and

4 there are extreme extraordinary circumstances in that Petitioner is impaired and has a disability

5 because he has no knowledge of, or experience with, legal procedures or processes; Petitioner

6 could not have known which court he should have filed in and when because his state counsel did

7 not properly instruct him; his claims are not procedurally defaulted because he gave the state a fair

8 and proper opportunity to respond, he was required to file in state court to exhaust his claims, and

9 his impairment/disability prevents him from understanding how and where to raise his claims; his

10 appellate attorney refused to raise the instructional error claim, proving that Petitioner’s conviction

11 is a miscarriage of justice; the instructional error is a structural error that requires immediate

12 reversal of his conviction because it lowered the prosecution’s burden of proof; procedural default

13 may be excused because Petitioner has demonstrated that the instructional error infected the entire

14 trial; there is a need for the expedited resolution of disputed federal law; the subsequent change in

15 the legal classification of his crimes qualifies as a claim of actual innocence; and there was no

16 evidence of kidnapping. See generally Dkt. No. 36.

17 Dkt. No. 37 is a seven page motion, with exhibits attached, for an order requiring counsel

18 for Respondent to show cause why the dismissal order should not be vacated. Dkt. No. 37. One

19 of the exhibits is a letter to this Court from Petitioner, expressing that he has done his best to

20 prosecute his case, despite his many limitations and disabilities, and repeating many of the

21 arguments presented in Dkt. Nos. 35 and 36, including his claim that he is actually innocent. See

22 generally Dkt. No. 37.

23 All four pleadings request that the Court set aside the dismissal and judgment. The Court

24 collectively addresses the motions below.

25 III. Discussion

26 1. Standard

27 Where the court’s ruling has resulted in a final judgment or order (e.g., after dismissal or

1 (motion to alter or amend judgment) or Rule 60(b) (motion for relief from judgment) of the

2 Federal Rules of Civil Procedure. See Am. Ironworks & Erectors v. N. Am. Constr. Corp., 248

3 F.3d 892, 898-99 (9th Cir. 2001). “‘[T]he major grounds that justify reconsideration involve an

4 intervening change of controlling law, the availability of new evidence, or the need to correct a

5 clear error or prevent manifest injustice.’” Pyramid Lake Paiute Tribe of Indians v. Hodel, 882

6 F.2d 364, 369 n.5 (9th Cir. 1989) (quoting United States v. Desert Gold Mining Co., 433 F.2d 713,

7 715 (9th Cir. 1970)). Motions for reconsideration should not be frequently made or freely granted;

8 they are not a substitute for appeal or a means of attacking some perceived error of the court. See

9 Twentieth Century - Fox Film Corp. v. Dunnahoo, 637 F.2d 1338, 1341 (9th Cir. 1981).

10 Fed. R. Civ. P. 59(e) allows for altering or amending the judgment. Fed. R. Civ. P. 59(e).

11 A motion for reconsideration under Rule 59(e) ‘“should not be granted, absent highly unusual

12 circumstances, unless the district court is presented with newly discovered evidence, committed

13 clear error, or if there is an intervening change in the law.”’ McDowell v. Calderon, 197 F.3d

14 1253, 1255 (9th Cir. 1999) (citation omitted) (en banc). The denial of a motion for

15 reconsideration under Rule 59(e) is construed as a denial of relief under Rule 60(b). See id. at

16 1255 n.3.

17 Fed. R. Civ. P. 60(b) permits a party to seek relief from a final judgment for any reason

18 that justifies relief. Fed. R. Civ. P. 60(b)(6). Rule 60(b)(6) is a “catchall provision” that applies

19 only when the reason for granting relief is not covered by any of the other reasons set forth in Rule

20 60. United States v. Washington, 394 F.3d 1152, 1157 (9th Cir. 2005). “It has been used

21 sparingly as an equitable remedy to prevent manifest injustice and is to be utilized only where

22 extraordinary circumstances prevented a party from taking timely action to prevent or correct an

23 erroneous judgment.” Id. (internal quotations omitted). The standard for a Rule 60(b)(6) motion

24 is high, and such “relief should be granted sparingly to avoid manifest injustice,” and such

25 circumstances rarely occur in the habeas context. Riley v. Filson, 933 F.3d 1068, 1071 (9th Cir.

26 2019) (internal quotation marks and citation omitted).

27 2. Analysis

1 because the majority of Petitioner’s arguments do not address whether his claims were

2 procedurally defaulted, which was the basis for the dismissal; he has not demonstrated either clear

3 error or manifest injustice with respect to the Court’s finding that the claims were procedurally

4 defaulted; and he has not demonstrated that he has satisfied the cause and prejudice standard or

5 that there has been a miscarriage of justice.

6 a) Arguments Unrelated to Procedural Default

7 First, the majority of Petitioner’s arguments do not address whether his claims were

8 procedurally defaulted, which was the basis for the dismissal. Specifically, the following

9 arguments are unrelated to whether the Court erred in finding that his claims were procedurally

10 defaulted: Petitioner is disabled and is incapable of understanding the law or legal procedures; his

11 petition states meritorious claims; there is a need for expedited resolution of disputed federal law

12 which can only be resolved by this federal habeas petition; his trial was affected by structural

13 error; he is entitled to equitable tolling because he diligently pursued his rights; and he could not

14 have known which court he should have filed in and when because his state counsel did not

15 properly instruct him.

16 b) No Clear Error or Manifest Injustice in Finding Procedural Default

17 Second, Petitioner has not demonstrated that, in finding that his claims were procedurally

18 defaulted, the Court clearly erred or that the Court committed a manifest injustice. Petitioner

19 argues that his claims are not procedurally defaulted because there are four exceptions to

20 Waltreus; he gave the state a fair and proper opportunity to respond; he was required to file in state

21 court to exhaust his claims; and his impairment/disability prevented him from understanding how

22 and where to raise his claims.

23 As an initial matter, to the extent that Petitioner is arguing that the state courts erred in

24 applying the Lindley or Dixon bar to his claims, the Court cannot consider this argument on

25 federal habeas. In determining whether the claims have been procedurally defaulted, the Court

26 may only consider whether the state court decision rested on a state law ground independent of the

27 federal question and adequate to support the judgment. Coleman v. Thompson, 501 U.S. 722,

1 applied state procedural rules. Poland v. Stewart, 169 F.3d 573, 584 (9th Cir. 1999). The ultimate

2 authority on California law is the California Supreme Court, and its ruling on Petitioner’s habeas

3 petition cannot be re-litigated in this court.

4 In addition, Petitioner’s arguments fail.

5 The alleged exceptions to Waltreus are not relevant here, because the Court did not rely on

6 the Waltreus bar in finding that the claims were procedurally defaulted.

7 Petitioner’s claims that the state had a fair and proper opportunity to respond and that he is

8 impaired or disabled are irrelevant to whether the claims were procedurally defaulted. The

9 procedural default rule does not provide an exception on the grounds that the state had a fair and

10 proper opportunity to respond or that the petitioner was impaired, disabled, or unable to

11 understand the law or legal procedures.

12 The Court presumes that in arguing that he was required to file in state court to exhaust his

13 claims, Petitioner is arguing that his claims would not have been procedurally barred if he had not

14 filed in state court. This argument misunderstands the Court’s ruling. The reason that Petitioner’s

15 claims were procedurally defaulted is because he failed to comply with the state procedural bars

16 set forth in Lindley and Dixon, and not because he was required to exhaust his claims in state

17 court.4 Federal habeas relief is barred both where the petitioner has failed to exhaust state court

18 remedies, 28 U.S.C. § 22554(b), and where the state court decision rested on a state law ground

19 independent of the federal question and adequate to support the judgment, Coleman, 501 U.S. at

20 729–30. Petitioner could not have avoided procedurally defaulting his claims by declining to file

21 in state court. If Petitioner had failed to file in state court, federal habeas relief would have been

22 denied for failure to exhaust.

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4 A petitioner seeking federal habeas relief is required by federal law to exhaust his habeas claims

in state court, either on direct appeal or through collateral proceedings, by presenting the highest

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state court available with a fair opportunity to rule on the merits of each and every claim they seek

to raise in federal court. See 28 U.S.C. § 2254(b), (c); Rose v. Lundy, 455 U.S. 509, 515–16

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(1982). The state’s highest court must be given an opportunity to rule on the claims even if review

1 c) No Cause and Prejudice or Miscarriage of Justice

2 Third, Petitioner has failed to demonstrate the cause and prejudice, or miscarriage of

3 justice, necessary to excuse the procedural default.

4 1) Legal Standard

5 A federal habeas court may consider procedurally defaulted claims on the merits if the

6 state prisoner can demonstrate cause for the procedural default and prejudice attributable to the

7 alleged constitutional errors. Murray v. Carrier, 477 U.S. 478, 485 (1986) (citing to Wainwright

8 v. Sykes, 433 U.S. 72, 87 (1977)). If a state prisoner cannot meet the cause and prejudice standard,

9 a federal court may still hear the merits of the successive, abusive, procedurally defaulted or

10 untimely claims if the failure to hear the claims would constitute a “miscarriage of justice.” See

11 McQuiggin v. Perkins, 569 U.S. 383, 391-92 (2013) (holding that miscarriage of justice (actual

12 innocence) showing applies to inter alia procedurally defaulted claims).

13 The cause standard requires the petitioner to show that “‘some objective factor external to

14 the defense impeded counsel’s efforts’” to construct or raise the claim. McClesky v. Zant, 499

15 U.S. 467, 493 (1991) (citing Murray, 477 U.S. at 488). Objective factors that constitute cause

16 include interference by officials that makes compliance with the state’s procedural rule

17 impracticable, or a showing that the factual or legal basis for a claim was not reasonably available

18 to counsel. See id. at 493-94. A petitioner may show cause by establishing constitutionally

19 ineffective assistance of counsel, but attorney error short of constitutionally ineffective assistance

20 of counsel does not constitute cause and will not excuse a procedural default. See McCleskey, 499

21 U.S. at 494; Carrier, 477 U.S. at 486-88. To serve as “cause,” the claim of ineffective assistance

22 of counsel must have been presented as an independent claim to the state courts. See Carrier, 477

23 U.S. at 489. A procedurally defaulted ineffective assistance of counsel claim is not cause to

24 excuse the default of another habeas claim unless the petitioner can satisfy the cause and prejudice

25 standard with respect to the ineffective assistance of counsel claim itself. See Edwards v.

26 Carpenter, 529 U.S. 446, 451-51(2000); Cockett v. Ray, 333 F.3d 938, 943 (9th Cir. 2003).

27 Negligence on the part of a prisoner’s post-conviction counsel does not qualify as cause because

1 266, 132 S. Ct. 912, 914 (2012). A pro se defendant’s lack of knowledge of the law does not

2 constitute cause. See Hughes v. Idaho State Bd. of Corrections, 800 F.2d 905, 909 (9th Cir. 1986)

3 (illiteracy of pro se petitioner not sufficient to meet cause standard of procedural bar); see also

4 Tacho v. Martinez, 862 F.2d 1376, 1381 (9th Cir. 1988) (mental condition of pro se petitioner and

5 reliance upon allegedly incompetent jailhouse lawyers did not constitute cause). Together Hughes

6 and Tacho state a legal principle that “a pro se petitioner’s mental condition cannot serve as cause

7 for a procedural default, at least when the petitioner on his own or with assistance remains ‘able to

8 apply for post-conviction relief to a state court.’” See Schneider v. McDaniel, 674 F.3d 1144,

9 1154-55 (9th Cir. 2012) (holding that district court properly dismissed two claims as procedurally

10 defaulted where petitioner’s mental condition did not restrict his ability to timely seek state court

11 relief, even though his mental condition could warrant equitable tolling to excuse tardiness of his

12 federal petition).

13 Petitioner must also show actual prejudice resulting from the errors of which he complains.

14 See McCleskey, 499 U.S. at 494; United States v. Frady, 456 U.S. 152, 168 (1982). Petitioner

15 bears the burden of showing, not merely that errors at his trial created a possibility of prejudice,

16 but that they “worked to his actual and substantial disadvantage, infecting his entire trial with

17 error of constitutional dimensions.” Id. at 170 (emphasis in original). To ascertain the level to

18 which such errors taint the constitutional sufficiency of the trial, they must be evaluated in the

19 total context of the events at trial. See Paradis v. Arave, 130 F.3d 385, 393 (9th Cir. 1997) (citing

20 Frady, 456 U.S. at 169).

21 The Supreme Court limits the “miscarriage of justice” exception to habeas petitioners who

22 can show that “a constitutional violation has probably resulted in the conviction of one who is

23 actually innocent.” Schlup v. Delo, 513 U.S. 298, 327 (1995) (citing Murray, 477 U.S. at 496).

24 The state prisoner must present evidence that creates a colorable claim of actual innocence, that

25 the petitioner is innocent of the charge for which he is incarcerated, as opposed to legal innocence

26 as a result of legal error. Id. at 321. It is not enough that the evidence shows the existence of

27 reasonable doubt, petitioner must show “that it is more likely than not that no ‘reasonable juror’

1 support his allegations of constitutional error with new reliable evidence—whether it be

2 exculpatory scientific evidence, trustworthy eyewitness accounts, or critical physical evidence—

3 that was not presented at trial.” Id. at 324. A petitioner may pass through the Schlup gateway by

4 promulgating evidence “that significantly undermines or impeaches the credibility of witnesses

5 presented at trial, if all the evidence, including new evidence, makes it ‘more likely than not that

6 no reasonable juror would have found petitioner guilty beyond a reasonable doubt.’” Gandarela

7 v. Johnson, 286 F.3d 1080, 1086 (9th Cir. 2002) (quoting Schlup, 513 U.S. at 327).5

8 2) Analysis

9 Petitioner argues that he has demonstrated cause and prejudice because the instructional

10 error infected the entire trial in that the reasonable doubt standard was not satisfied; his appellate

11 attorney refused to raise the instructional error claim; there was no evidence of kidnapping; the

12 subsequent change in the legal classification of his crimes qualifies as a claim of actual innocence

13 sufficient to pass through the Schlup gateway; this is one of the extraordinary cases where the

14 Court cannot be confident in the jury’s finding of guilt; and he has done his best to prosecute this

15 case, despite his many limitations and disabilities. Petitioner’s arguments do not demonstrate

16 cause, prejudice, or a miscarriage of justice.

17 To demonstrate cause, Petitioner must demonstrate some objective factor external to the

18 defense prevented him or his counsel from complying with state’s procedural rule. McClesky, 499

19 U.S. at 493. Petitioner has not argued, much less demonstrated, that he or his appellate counsel

20 were prevented from raising the claims in this petition on direct appeal to the California appellate

21 court and California Supreme Court.6 Nor can he demonstrate cause by alleging that appellate

22 counsel was ineffective for failing to raise these claims on appeal, because he did not present the

23 ineffective assistance of appellate counsel claim as an independent claim to the state courts.

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5 Because such evidence is obviously unavailable in the vast majority of cases, claims of actual

innocence are rarely successful. Schlup, 513 U.S. at 324; see, e.g., Sistrunk v. Armenakis, 292

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F.3d 669, 8674-75 (9th Cir. 2002) (en banc) (rejecting gateway claim supported by impeachment

evidence which did not fundamentally call into question the reliability of petitioner’s conviction).

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6 In his appeal, Petitioner raised only one claim: that the trial court abused its discretion in

1 Finally, Petitioner’s inability to understand the law cannot serve as cause. Because Petitioner has

2 not demonstrated cause, he cannot satisfy the cause and prejudice standard.

3 Nor has Petitioner demonstrated that he is entitled to the “miscarriage of justice”

4 exception. Petitioner’s arguments regarding “miscarriage of justice” merely repeat his habeas

5 claims, arguing that there was instructional error severe enough to constitute structural error and

6 that there was insufficient evidence to support the conviction for kidnapping during the course of a

7 carjacking. Petitioner has not met the requirement of supporting his claim of actual innocence

8 with new reliable evidence that was not presented at trial. Schlup, 513 U.S. at 324. Also, it is

9 unclear what Petitioner is referring to when he claims that there has been a subsequent change in

10 the legal classification of his crime. Dkt. No. 36 at 12. Petitioner does not identify the change.

11 Regardless, any change would not affect the validity of his conviction unless the change applied

12 retroactively. The cases cited by Petitioner in support of his argument regarding a subsequent

13 change in legal classification do not support his argument that he is actually innocent of the crime

14 because of the subsequent change in the legal classification of his crime. Allen v. Ives, 950 F.3d

15 1184 (9th Cir. 2020), concerns a Section 2241 petition and discusses an actual innocence claim

16 based on cases that apply retroactively; and Alleyne v. United States, 570 U.S. 99, 107-08 (2013),

17 addressed whether a fact that increases the mandatory minimum sentence for crime is an element

18 of crime, as distinguished from a sentencing factor, that must be submitted to jury.

19 d) Fed. R. Civ. P. 59(e), 60(b)(6)

20 As explained above, Petitioner’s arguments fail to address the dispositive issue (whether the

21 claims are procedurally defaulted), do not demonstrate clear error or manifest injustice, and fail to

22 satisfy the cause and prejudice standard or demonstrate that there has been a miscarriage of justice.

23 Accordingly, Petitioner’s motion for reconsideration or alteration or amendment of judgment

24 pursuant to Fed. R. Civ. P. 59(e) is DENIED. Petitioner has not presented the Court with newly

25 discovered evidence, or demonstrated that the Court committed clear error, or pointed to an

26 intervening change in the law. as required for a Fed. R. Civ. P. 59(e) motion. See McDowell, 197

27 F.3d at 1255. Petitioner’s motion for relief from final judgment pursuant to Fed. R. Civ. P.

1 construed as a denial of relief under Rule 60(b), see id., 197 F.3d at 1255 n.3, and because there

2 has been no manifest injustice, Riley, 933 F.3d at 1071.

3 IV. __ Petitioner’s Recent Pleadings

4 On or about March 24 and 28, 2022, Petitioner filed two letters with the Court, inquiring as

5 to whether the Court had addressed his post-judgment motions and asking whether waiting for

6 || these motions to be decided would affect his ability to appeal the dismissal of his petition and the

7 related judgment. Dkt. Nos. 38, 39. Fed. R. App. P. 4(a)(4) provides that where a party files a

8 || post-judgment motion pursuant to Fed. R. Civ. P. 59 or 60, the time to file an appeal runs for all

9 || parties from the entry of the order disposing of that motion. Fed. R. App. P. 4(a)(4). Accordingly,

10 || the 30-day period within which Petitioner must file his notice of appeal, as set forth in Fed. R.

ll App. P. 4(a)(1)(A), runs from the date of this order.

12 CONCLUSION

5 13 For the reasons set forth above, Petitioner’s motions seeking relief from judgment pursuant

14 to Fed. R. Civ. P. 59, 60 are DENIED. This case remains closed.

3 15 This order terminates Dkt. Nos. 34, 35, 36, 37.

a 16 IT IS SO ORDERED.

17 || Dated: 4/11/2022

18 Appurd 5 bbl □□

HAYWOOD S. GILLIAM, JR.

19 United States District Judge

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