(HC) Iseli v. People of the State of California ( 2023 )

1 2 3 4 5 6 7 UNITED STATES DISTRICT COURT 8 FOR THE EASTERN DISTRICT OF CALIFORNIA 9 10 BRANDEN WILLIE ISELI, No. 2:22-cv-01483-TLN-EFB (HC) 11 Petitioner, 12 v. FINDINGS AND RECOMMENDATIONS 13 JEFF LYNCH, Warden, 14 Respondent. 15 16 Petitioner is a state prisoner proceeding without counsel in this petition for a writ of 17 habeas corpus. 28 U.S.C. § 2254. He challenges his convictions in the Superior Court of San 18 Joaquin County for murder and attempted murder. ECF No. 1 at 1. Petitioner alleges that there 19 was insufficient evidence to support his conviction. Id. at 3, 6-7. In addition, although he does 20 not state it as one of his grounds for relief in his Petition, petitioner appears to raise an argument 21 regarding testimony about a knife found in his bedroom. ECF No. 1 at 3. For the reasons that 22 follow, the petition must be denied. 23 ///// 24 ///// 25 ///// 26 ///// 27 ///// 28 ///// 1 The facts, as relayed by the California Court of Appeal1, are: 2 Defendant Branden Willie Iseli attacked his great-uncle and great-grandfather with 3 a knife, killing his great-uncle and inflicting life-threatening injuries on his great- grandfather. A jury convicted defendant of attempted murder with premeditation 4 and deliberation, along with elder abuse with respect to his attack on his great- grandfather (Pen. Code, §§ 664/187, subd. (a), 368, subd. (b)(1)) [footnote 5 omitted] but it could not reach a verdict on a charge of murdering the great uncle. In a second trial, a jury convicted defendant of first degree premeditated murder of 6 his great-uncle. (§§ 187, subd. (a), 189, subd. (a).) The trial court sentenced defendant to a term of 25 years to life for first degree murder, with a consecutive 7 term of life with the possibility of parole for attempted murder and five years for inflicting great bodily injury on an elder. The trial court imposed and stayed the 8 upper term for elder abuse. 9 . . . 10 The evidence was essentially the same in the two trials. . . . 11 Defendant lived at his great-grandparents’ small house in Stockton with six other people: his great-grandparents Manuel and Raquel, his great-uncle Juan, his 12 mother Anita, his sister Denise, and his uncle Carlos. Manuel and Raquel shared a bedroom. Juan had his own bedroom. Defendant shared a bedroom with his 13 mother and sister. Carlos slept on the couch in the living room. 14 On December 14, 2017, Anita and Denise left the home a little before 7:00 a.m. Defendant opened the driveway gate for them. When Raquel woke up and left her 15 bedroom, she saw Juan sitting on the floor. Juan told Raquel that defendant had hit him and asked her to call the police. Defendant was sitting at his bedroom 16 door. Raquel went into the kitchen and saw Manuel standing in the kitchen, grabbing the side of his neck where he was bleeding. Manuel told her that 17 defendant had hit him. 18 Juan was throwing up blood and told Manuel to call the police. When Manuel sat down in a chair in the kitchen because he did not feel well, defendant began hitting 19 him in the head. Defendant then left the house. During the first trial (in which the jury convicted defendant of attempted murder of Manuel), Manuel testified 20 defendant said to Manuel that he was going to kill him. 21 Carlos was awakened by defendant walking out of the house. He saw Juan bleeding on the floor and Manuel holding his neck, so he called 911. He told the 22 911 operator that Juan and Manuel were bleeding from their necks as if they had been stabbed. A video from a surveillance camera at a nearby apartment complex 23 showed a person around 7:00 a.m. the same morning who appeared to change his clothing. 24 When sheriff’s deputies arrived, they found Manuel standing near the front door, 25 bleeding from his neck, and Juan on the floor in the hallway, unresponsive. Medical personnel determined Juan was deceased, and they transported Manuel to 26 the hospital. 27 1 The facts recited by the state appellate court are presumed to be correct where, as here, 28 the petitioner has not rebutted the facts with clear and convincing evidence. 28 U.S.C. § 1 Juan died from stab wounds to the right and left sides of his neck caused by a knife. He had multiple areas of trauma on his body, including seven sharp force 2 injuries. There were no defensive wounds on Juan’s body. 3 Manuel arrived at San Joaquin County General Hospital in critical condition with life-threatening injuries. He had seven stab wounds, including to his neck, the left 4 side of his chest, and his left hand. The knife hit but did not fully penetrate Manuel’s carotid artery in his neck, causing a dangerous aneurysm. He was 5 stabilized and transferred to UC Davis for further treatment. 6 Defendant turned himself in four days after the attacks. He claimed he had not been at the residence when Juan and Manuel were injured. 7 In the first trial, after which the jury was unable to reach a verdict on the murder 8 charge, the following evidence was introduced, but it was not introduced in the second trial: About 10 years before the murder, Juan was rude to defendant’s sister 9 and went into defendant’s room. Defendant told Juan to back off, and Juan pushed defendant. Juan was rude to the others in the household, especially when he was 10 on drugs. Even though defendant was normally patient and kind, he occasionally got angry at Juan and usually left the house to cool down. 11 12 People v. Iseli, No. C090997, 2022 WL 1013447 (Cal. Ct. App. April 15, 2022), review 13 denied (June 15, 2022); ECF No. 15-12 at 1-4. 14 Petitioner’s appeal of his conviction was rejected by the state appellate court. ECF No. 15 15-12. The California Supreme Court denied review. ECF No. 15-13. 16 II. Analysis 17 A. Standards of Review Applicable to Habeas Corpus Claims 18 An application for a writ of habeas corpus by a person in custody under a judgment of a 19 state court can be granted only for violations of the Constitution or laws of the United States. 28 20 U.S.C. § 2254(a). A federal writ is not available for alleged error in the interpretation or 21 application of state law. Wilson v. Corcoran, 562 U.S. 1, 5 (2010); Estelle v. McGuire, 502 U.S. 22 62, 67-68 (1991); Park v. California, 202 F.3d 1146, 1149 (9th Cir. 2000). 23 Title 28 U.S.C. § 2254(d) sets forth the following standards for granting federal habeas 24 corpus relief: 25 An application for a writ of habeas corpus on behalf of a person in custody pursuant to the judgment of a State court shall not be granted with respect to any 26 claim that was adjudicated on the merits in State court proceedings unless the adjudication of the claim – 27 ///// 28 ///// 1 (1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme 2 Court of the United States; or 3 (2) resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding. 4 5 Under § 2254(d)(1), “clearly established federal law” consists of holdings of the United 6 States Supreme Court at the time of the last reasoned state court decision. Thompson v. Runnels, 7 705 F.3d 1089, 1096 (9th Cir. 2013) (citing Greene v. Fisher, 565 U.S.34 (2011); Stanley v. 8 Cullen, 633 F.3d 852, 859 (9th Cir. 2011) (citing Williams v. Taylor, 529 U.S. 362, 405-06 9 (2000)). Circuit court precedent “may be persuasive in determining what law is clearly 10 established and whether a state court applied that law unreasonably.” Stanley, 633 F.3d at 859 11 (quoting Maxwell v. Roe, 606 F.3d 561, 567 (9th Cir. 2010)). However, circuit precedent may not 12 be “used to refine or sharpen a general principle of Supreme Court jurisprudence into a specific 13 legal rule that th[e] [Supreme] Court has not announced.” Marshall v. Rodgers, 569 U.S. 58, 64 14 (2013) (citing Parker v. Matthews, 567 U.S. 37, 47-49 (2012) (per curiam)). Nor may it be used 15 to “determine whether a particular rule of law is so widely accepted among the Federal Circuits 16 that it would, if presented to th[e] [Supreme] Court, be accepted as correct.” Id. Further, where 17 courts of appeals have diverged in their treatment of an issue, there is no “clearly established 18 Federal law” governing that issue. Carey v. Musladin, 549 U.S. 70, 77 (2006). 19 A state court decision is “contrary to” clearly established federal law under § 2254(d)(1) if 20 it applies a rule contradicting a holding of the Supreme Court or reaches a result different from 21 Supreme Court precedent on “materially indistinguishable” facts. Price v. Vincent, 538 U.S. 634, 22 640 (2003). Under the “unreasonable application” clause of § 2254(d)(1), a federal habeas court 23 may grant the writ if the state court identifies the correct governing legal principle from the 24 Supreme Court’s decisions, but unreasonably applies that principle to the facts of the prisoner’s 25 case.2 Lockyer v. Andrade, 538 U.S. 63, 75 (2003); Williams, 529 U.S. at 413; Chia v. Cambra, 26 27 2 Under § 2254(d)(2), a state court decision based on a factual determination is not to be overturned on factual grounds unless it is “objectively unreasonable in light of the evidence 28 presented in the state court proceeding.” Stanley, 633 F.3d at 859 (quoting Davis v. Woodford, 1 because that court concludes in its independent judgment that the relevant state-court decision 2 applied clearly established federal law erroneously or incorrectly. Rather, that application must 3 also be unreasonable.” Williams, 529 U.S. at 412; accord Schriro v. Landrigan, 550 U.S. 465, 4 473 (2007); Lockyer, 538 U.S. at 75 (it is “not enough that a federal habeas court, in its 5 independent review of the legal question, is left with a ‘firm conviction’ that the state court was 6 ‘erroneous.’”). “A state court’s determination that a claim lacks merit precludes federal habeas 7 relief so long as ‘fairminded jurists could disagree’ on the correctness of the state court’s 8 decision.” Harrington v. Richter, 562 U.S. 86, 101 (2011) (quoting Yarborough v. Alvarado, 541 9 U.S. 652, 664 (2004)). Accordingly, “[a]s a condition for obtaining habeas corpus from a federal 10 court, a state prisoner must show that the state court’s ruling on the claim being presented in 11 federal court was so lacking in justification that there was an error well understood and 12 comprehended in existing law beyond any possibility for fairminded disagreement.” Richter, 562 13 U.S. at 103. 14 If the state court’s decision does not meet the criteria set forth in § 2254(d), a reviewing 15 court must conduct a de novo review of a habeas petitioner’s claims. Delgadillo v. Woodford, 16 527 F.3d 919, 925 (9th Cir. 2008); see also Frantz v. Hazey, 533 F.3d 724, 735 (9th Cir. 2008) 17 (en banc) (“[I]t is now clear both that we may not grant habeas relief simply because of § 18 2254(d)(1) error and that, if there is such error, we must decide the habeas petition by considering 19 de novo the constitutional issues raised.”). 20 In evaluating whether the petition satisfies § 2254(d), a federal court looks to the last 21 reasoned state court decision. Stanley, 633 F.3d at 859; Robinson v. Ignacio, 360 F.3d 1044, 22 1055 (9th Cir. 2004). If the last reasoned state court decision adopts or substantially incorporates 23 the reasoning from a previous state court decision, the court may consider both decisions to 24 ascertain the reasoning of the last decision. Edwards v. Lamarque, 475 F.3d 1121, 1126 (9th Cir. 25 2007) (en banc). “When a federal claim has been presented to a state court and the state court has 26 denied relief, it may be presumed that the state court adjudicated the claim on the merits in the 27 absence of any indication or state-law procedural principles to the contrary.” Richter, 562 U.S. at 28 1 explanation for the state court’s decision is more likely.” Id. at 99-100 (citing Ylst v. 2 Nunnemaker, 501 U.S. 797, 803 (1991)). Similarly, when a state court decision on a petitioner’s 3 claims rejects some claims but does not expressly address a federal claim, a federal habeas court 4 must presume, subject to rebuttal, that the federal claim was adjudicated on the merits. Johnson 5 v. Williams, 568 U.S. 289, 293 (2013). 6 Where the state court reaches a decision on the merits but provides no reasoning to 7 support its conclusion, a federal habeas court independently reviews the record to determine 8 whether habeas corpus relief is available under § 2254(d). Stanley, 633 F.3d at 860; Himes v. 9 Thompson, 336 F.3d 848, 853 (9th Cir. 2003). “Independent review of the record is not de novo 10 review of the constitutional issue, but rather, the only method by which we can determine whether 11 a silent state court decision is objectively unreasonable.” Himes, 336 F.3d at 853. Where no 12 reasoned decision is available, the habeas petitioner still has the burden of “showing there was no 13 reasonable basis for the state court to deny relief.” Richter, 562 U.S. at 99-100. 14 When it is clear, however, that a state court has not reached the merits of a petitioner’s 15 claim, the deferential standard set forth in 28 U.S.C. § 2254(d) does not apply and a federal 16 habeas court must review the claim de novo. Stanley, 633 F.3d at 860; Reynoso v. Giurbino, 462 17 F.3d 1099, 1109 (9th Cir. 2006); Nulph v. Cook, 333 F.3d 1052, 1056 (9th Cir. 2003). 18 B. Petitioner’s Claim of Insufficient Evidence 19 While petitioner’s Petition nominally states two grounds for relief, both grounds allege 20 insufficient evidence to support his convictions. ECF No. 1 at 6-7. The state appellate court 21 addressed this claim as follows: 22 23 Defendant next contends the evidence was insufficient to support findings of premeditation and deliberation for the murder and attempted murder convictions. 24 The juries found defendant committed attempted murder with premeditation and 25 deliberation (§§ 664/187, subd. (a) (first trial)) and first degree premediated murder (§§ 187, subd. (a), 189, subd. (a) (second trial). “A crime is premeditated 26 when it is considered beforehand and deliberate when the decision to commit the crime is formed or arrived at or determined upon as a result of careful thought and 27 weighing of considerations for against the proposed course of action. [Citations.] [¶] The process of deliberation and premeditation does not require any extended 28 period of time: ‘“The true test is not the duration of time as much as it is the extent 1 of premeditation and deliberation excludes acts that are the ‘result of mere unconsidered or rash impulse hastily executed.’” (People v. Gonzalez (2012) 210 2 Cal. App. 4th 875, 886-887).) 3 When assessing the sufficiency of premeditation and deliberation, courts often consider three “Anderson factors”: planning, motive, and manner of killing or 4 attempted killing. (People v. Shamblin (2015) 236 Cal. App. 4th 1, 10, citing People v. Anderson (1968) 70 Cal. 2d 15, 26-27 (Anderson).) However, the 5 Anderson factors are merely guidelines. . . . Although motive is an Anderson factor, “the lack of a discernable rational motive does not preclude a conviction for 6 first degree premeditated murder.” . . . “ ‘A senseless, random, but premeditated, killing supports a verdict of first degree murder.’ “ . . . “In reviewing a sufficiency 7 of evidence challenge, we view the evidence in the light most favorable to the verdict and determine whether any rational trier of fact could have found the 8 essential elements of the crime proven beyond a reasonable doubt.” (Gonzales, at p. 653, italics omitted.) 9 With respect to his killing of Juan, defendant argues there was no evidence in the 10 second trial of motive or that the manner of killing suggested premeditation and deliberation. He also claims there was minimal evidence of planning. We 11 disagree. While there was no evidence of motive, the evidence of defendant’s planning and manner in which he killed Juan support the jury’s determination that 12 defendant’s killing of Juan was premeditated and deliberate. 13 There was evidence defendant planned to kill Juan. Defendant secreted at least one knife in his bedroom, and the jury could reasonably infer he also had in his 14 bedroom the knife he used to kill Juan. There appears to have been no argument or confrontation leading up to his killing of Juan, as Juan had no defensive 15 wounds. Additionally, there was evidence defendant left the house with other clothing to change into once he was away from the house. From all of this 16 evidence, the jury could reasonably infer defendant had a plan to use a knife, attack Juan unprovoked, and flee with a change of clothing. 17 The manner of the killing also supported a finding of premeditation and 18 deliberation. Along with the evidence noted above concerning planning, defendant’s sustained attack on Juan with the knife, focusing on Juan’s neck where 19 maximum effect toward killing Juan could be obtained, indicated that the manner of the killing was intended to take Juan’s life. Considering this evidence of 20 planning and the manner in which defendant killed Juan, we conclude there was sufficient evidence introduced in the second trial to sustain a finding of 21 premeditation and deliberation in support of a first degree premeditated murder conviction. 22 The same is true concerning the evidence presented in the first trial supporting a 23 finding that defendant’s attempted murder of Manuel was premeditated and deliberate. The jury could have reasonably determined defendant had a motive to 24 kill Manuel because Manuel saw Juan throwing up blood and Juan asked Manuel to call the police. Defendant’s attack on Manuel was unprovoked while Manuel 25 was sitting down. Defendant attacked Manuel in the neck, injuring but not quite severing Manuel’s carotid artery. Defendant told Manuel he was going to kill him. 26 Again, defendant had hidden at least one other knife and took clothing with him when he immediately made his escape. The evidence of motive, planning, and 27 manner of attempted murder was sufficient to support a jury finding of premeditation and deliberation in the first trial. 28 1 ECF 15-12 at 5-7. 2 The Due Process Clause “protects the accused against conviction except upon proof 3 beyond a reasonable doubt of every fact necessary to constitute the crime with which he is 4 charged.” In re Winship, 397 U.S. 358, 364, 90 S.Ct. 1068, 25 L. Ed 2d 368 (1970). There is 5 sufficient evidence to support a conviction if, “after viewing the evidence in the light most 6 favorable to the prosecution, any rational trier of fact could have found the essential elements of 7 the crime beyond a reasonable doubt.” Jackson v. Virginia, 443 U.S. 307, 319 (1979). “[T]he 8 dispositive question under Jackson is ‘whether the record evidence could reasonably support a 9 finding of guilt beyond a reasonable doubt.’” Chein v. Shumsky, 373 F.3d 978, 982 (9th Cir. 10 2004) (quoting Jackson, 443 U.S. at 318). Put another way, “a reviewing court may set aside the 11 jury’s verdict of the ground of insufficient evidence only if no rational trier of fact could have 12 agreed with the jury.” Cavazos v. Smith, 565 U.S. 1, 2 (2011). 13 In federal habeas review of a claim of insufficient evidence, “all evidence must be 14 considered in the light most favorable to the prosecution.” Ngo v. Giurbino, 651 F.3d 1112, 1115 15 (9th Cir. 2011). “Jackson leaves juries broad discretion in deciding what inferences to draw from 16 the evidence presented at trial,” and it requires only that they draw “‘reasonable inferences from 17 basic facts to ultimate facts.’” Coleman v. Johnson, 566 U.S. 650, 655 (2012) (per curiam) 18 (citation omitted). “‘Circumstantial evidence and inferences drawn from it may be sufficient to 19 sustain a conviction.’” Walter v. Maass, 45 F.3d 1355, 1358 (9th Cir. 1995 (citation omitted). 20 “A petitioner for a federal writ of habeas corpus faces a heavy burden when challenging 21 the sufficiency of the evidence used to obtain a state conviction on federal due process.” Juan H. 22 v. Allen, 408 F.3d 1262, 1274 (9th Cir. 2005). In order to grant relief, the federal habeas court 23 must find that the decision of the state court rejecting an insufficiency of the evidence claim 24 reflected an objectively unreasonable application of Jackson and Winship to the facts of the case. 25 Ngo, 651 F.3d at 1115; Juan H., 408 F.3d at 1275 & n.13. Thus, when a federal habeas court 26 assesses a sufficiency of the evidence challenge to a state court conviction under AEDPA, “there 27 is a double dose of deference that can rarely be surmounted.” Boyer v. Belleque, 659 F.3d 957, 28 964 (9th Cir. 2011). The federal habeas court determines sufficiency of the evidence in reference 1 to the substantive elements of the criminal offense as defined by state law. Jackson, 443 U.S. at 2 324 n. 16; Chein, 373 F.3d at 983. 3 After reviewing the state court record in the light most favorable to the jury’s verdict, this 4 court concludes that there was sufficient evidence introduced at petitioner’s trials to support the 5 findings of premeditation and deliberation for petitioner’s convictions of murder and attempted 6 murder. For the reasons expressed by the California Court of Appeal, there was evidence in the 7 second trial from which the jury could have found premeditation and deliberation in the killing of 8 Juan, such as petitioner’s hiding of a knife in his bedroom, the lack of defensive wounds on Juan 9 (suggesting lack of provocation), the knife attack on Juan’s neck (suggesting intent to kill), and 10 petitioner’s fleeing from the house with a change of clothes. ECF 15-12 at 7. As the state court 11 reasonably found, based on this evidence “the jury could reasonably infer defendant had a plan to 12 use a knife, attack Juan unprovoked, and flee with a change of clothing.” Id. 13 Similarly, there was sufficient evidence of premeditation and deliberation introduced at 14 petitioner’s first trial to support the jury’s conviction for the attempted murder of Manuel. For 15 example, the jury could have reasonably determined that defendant had a motive because Manuel 16 saw Juan’s injuries and Juan asked him to call the police. Defendant also attacked Manuel when 17 Manuel was sitting down (demonstrating lack of provocation), told Manuel he was going to kill 18 him, and stabbed him in the neck. ECF 15-12 at 7. As the state court reasonably found, based on 19 this evidence, along with the evidence of the knife in the bedroom and defendant’s fleeing from 20 the home with a change of clothing, there was sufficient evidence of motive, planning and manner 21 of attempted murder to support the jury’s finding of premeditation and deliberation. Id. 22 This is true regardless of the fact that there might have been other trial evidence which 23 supported petitioner’s version of the events. The question in this federal habeas action is not 24 whether there was evidence from which the jury could have found for petitioner on these issues. 25 Rather, in order to obtain federal habeas relief on this claim, petitioner must demonstrate that the 26 state court’s denial of relief with respect to his insufficiency of evidence arguments was an 27 objectively unreasonable application of the decisions in Jackson and Winship to the facts of this 28 case. Petitioner has failed to make this showing, or to overcome the deference due to the state 1 court’s findings of fact and its analysis of this claim. Accordingly, petitioner is not entitled to 2 federal habeas relief on his claim of insufficient evidence. 3 C. Petitioner’s Claim Regarding the Knife in His Bedroom 4 As noted supra, petitioner’s stated grounds for relief do not address the knife found in his 5 bedroom. Petitioner does, however, mention the knife elsewhere in his Petition, and the issue was 6 reviewed by the Court of Appeal; accordingly, the court will address it here. 7 The state appellate court addressed this claim as follows: 8 Defendant contends the trial court erred by admitting evidence about a knife that was found in his bedroom but was not used as the weapon for the crimes. The 9 Attorney General responds that defendant failed to make a timely objection to this evidence. 10 In his first trial, the prosecution introduced evidence that a knife was found hidden 11 in defendant’s bedroom. In closing argument, the prosecutor acknowledged there was no biological evidence on the knife and argued the knife was evidence 12 defendant owned knives, even if he took the actual weapon used in the crimes with him when he left the residence. Defendant did not object to admission of the 13 physical knife or testimony about the knife in the first trial. 14 In the second trial, the prosecution again introduced testimony that a knife was found hidden in defendant’s bedroom, again without objection from the defense. 15 No blood was found on the knife. 16 After the conclusion of testimony in the trial, the trial court held a conference to consider admission of exhibits. At that time, defendant objected to admission of 17 the knife. He argued it was irrelevant because there was no DNA evidence on the knife. The trial court overruled the relevance objection. 18 After the trial court overruled defendant’s objection to admission of the knife as an 19 exhibit, the prosecutor argued to the jury that defendant had knives available to him and had a knife in his room. The prosecutor also argued the knife in 20 defendant’s bedroom was evidence of consciousness of guilt because it was hidden in a laundry basket. 21 “A verdict or finding shall not be set aside, nor shall the judgment or decision 22 based thereon be reversed, by reason of the erroneous admission of evidence unless: (a) there appears of record an objection to or a motion to exclude or to 23 strike the evidence that was timely made and so stated as to make clear the specific ground of the objection or motion . . . . (Evid. Code, § 353; People v. Hajek and 24 Vo (2014) 58 Cal. 4th 1144, 1214 [failure to make timely objections forfeits appellate consideration].) The objection must be made at the time the evidence is 25 introduced. (People v. Demetrulias (2006) 39 Cal. 4th 1, 22.) 26 Defendant did not address forfeiture in his opening brief. And, after the Attorney General raised forfeiture in the respondent’s brief, defendant again did not address 27 the issue. 28 1 concerning the knife found in his bedroom. While defendant objected to the admission of the knife as an exhibit, he did not object to the testimony concerning 2 the knife. His argument on appeal focuses on the relevance of the testimony. The argument is forfeited because defendant did not make a timely and specific 3 objection to testimony concerning the knife. (Evid. Code, § 353, subd.(a).) 4 ECF 15-12 at 4-5. 5 Petitioner cannot demonstrate that this claim is not procedurally defaulted, and thus not 6 amenable to federal habeas review. Under the procedural default rule, federal courts must 7 generally decline to review federal claims where the state court decision under review rejected the 8 claims based on a state procedural rule that was independent of the federal issues and adequate to 9 support the judgment. Coleman v. Thompson, 501 U.S. 722, 729 (1991); Bennett v. Mueller, 322 10 F.3d 573, 580 (9th Cir.2003). Where the state court's rejection of a claim was based on an 11 adequate and independent state procedural rule, a petitioner may obtain federal review only by 12 demonstrating either (1) cause for the procedural default and prejudice or (2) that the failure to 13 review the claims will result in a fundamental miscarriage of justice. Coleman, 501 U.S. at 750. 14 The Ninth Circuit has found that California’s rule that an issue not objected to at the time it arose 15 is nonreviewable on appeal (the “contemporaneous objection” rule) may be grounds for 16 procedural default. Paulino v. Castro, 371 F.3d 1083, 1092–93 (9th Cir. 2004) (petitioner’s claim 17 that trial court failed to adequately respond to a jury question was procedurally barred because 18 trial counsel did not contemporaneously object and petitioner failed to show that 19 the contemporaneous objection rule was unclear, inconsistently applied or not well-established). 20 To determine in this case whether petitioner’s claims are procedurally defaulted based on 21 this state procedural rule, the court must follow the burden-shifting framework established 22 in Bennett. Under the Bennett framework, the state bears the initial burden of pleading the 23 existence of an adequate state procedural ground as an affirmative defense. Id. at 586. Once the 24 state does so, the burden shifts to the petitioner to assert “specific factual allegations that 25 demonstrate the inadequacy of the state procedure, including citation to authority demonstrating 26 inconsistent application of the rule.” Id. If the petitioner does so, the burden then shifts back to 27 the state to ultimately prove that the state procedural rule is nevertheless adequate. Id. 28 In this case, the state has generally pleaded procedural default as an affirmative defense. 2 || ECF No. 16 at 6-7. Petitioner was thus required to make some showing that this procedural bar 3 | is inadequate. He has not done so. ECF No. 17. Nor has petitioner made any showing of cause 4 | for the procedural default. Accordingly, the court concludes that any claim of petitioner’s 5 || addressing testimony regarding the knife found in his bedroom has been procedurally defaulted.? 6 Ill. Recommendation 7 For the reasons stated above, it is hereby RECOMMENDED that the petition for writ of 8 || habeas corpus be DENIED. 9 These findings and recommendations are submitted to the United States District Judge 10 | assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(1). Within fourteen days 11 | after being served with these findings and recommendations, any party may file written 12 | objections with the court and serve a copy on all parties. Such a document should be captioned 13 | “Objections to Magistrate Judge’s Findings and Recommendations.” Failure to file objections 14 | within the specified time may waive the right to appeal the District Court’s order. Turner v. 15 || Duncan, 158 F.3d 449, 455 (9th Cir. 1998); Martinez v. Yist, 951 F.2d 1153 (9th Cir. 1991). In 16 | his objections petitioner may address whether a certificate of appealability should issue in the 17 | event he files an appeal of the judgment in this case. See Rule 11, Federal Rules Governing § 18 || 2255 Cases (the district court must issue or deny a certificate of appealability when it enters a 19 | final order adverse to the applicant). 20 | Dated: January 12, 2023. EDMUND F. BRENNAN UNITED STATES MAGISTRATE JUDGE 22 23 24 > The claims addressed here were the sole claims raised by petitioner on appeal and 26 || considered by the Court of Appeal. ECF No. 15-12. To the extent petitioner attempts to raise any other claims in his petition for writ of habeas corpus, those claims were not fairly presented to the 27 || state courts and thus cannot be a basis for federal habeas relief. See, e.g., 28 U.S.C. § 2254(b)(1); Shinn v. Ramirez, 142 $.Ct. 1718, 1727-28 (2022) (holding that “[a] federal habeas court 28 || generally may consider a state prisoner’s federal claim only if he has first presented that claim to the state court in accordance with state procedures ’).