Mendoza v. Koenig ( 2022 )

1 2 3 4 UNITED STATES DISTRICT COURT 5 NORTHERN DISTRICT OF CALIFORNIA 6 7 ROBERTO FRANCISCO MENDOZA, Case No. 21-cv-05045-EMC 8 Petitioner, ORDER (1) DENYING PETITIONER’S IMPLIED MOTION FOR 9 v. RECONSIDERATION, AND (2) GRANTING RESPONDENT’S 10 LUIS MARTINEZ,1 MOTION TO DISMISS 11 Respondent. Docket Nos. 6, 9, 10 12 13 14 I. INTRODUCTION 15 Roberto Francisco Mendoza, an inmate currently housed at the Correctional Training 16 Facility, filed this pro se action for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. See 17 Docket No. 1-2 (“Petition”). Having reviewed the parties’ briefs as well as the underlying record, 18 the Court concludes that Mr. Mendoza is not entitled to habeas relief based on the claims 19 presented for the reasons raised in Respondent’s Dismissal Motion. Accordingly, the Court 20 DENIES Mr. Mendoza’s petition for writ of habeas corpus. 21 II. BACKGROUND 22 Mr. Mendoza was convicted in Monterey County Superior Court of the sexual assault of 23 multiple teenage girls, all under the age of 14. See Docket No. 31 at 1-5, Mendoza v. Holland, 24 Case No. 15-cv-5620-EMC (N.D. Cal. Jan. 22, 2018) (summarizing conviction background). In 25 all, “Mr. Mendoza was convicted of eleven counts of committing a lewd or lascivious act on a 26 child under 14 years of age.” Id. at 5. “He was sentenced to 45 years to life plus 18 years in 27 1 prison.” Id. 2 In 2015, Mr. Mendoza filed a federal habeas petition challenging this conviction. See 3 generally, id. The Court denied relief as to Counts 1-5. See id. at 36. The Court concluded that 4 relief was warranted as to Counts 6-11, see id. at 1, 39, 47, and vacated Mr. Mendoza’s conviction 5 on those counts with instructions to “the State of California [to] re-institute criminal proceedings 6 on those charges against Mr. Mendoza or seek resentencing in light of the convictions on Counts 7 6-11 having been vacated,” id. at 47. 8 Upon the re-institution of criminal proceedings in Monterey County Superior Court, Mr. 9 Mendoza claims that the prosecutor “added and increased criminal charges” as an act of vindictive 10 prosecution. Pet. at 10. Mr. Mendoza pleaded guilty to seventeen counts of lewd acts upon a 11 child and sexual penetration of a child. See id. at 18-21. In exchange for pleading guilty, Mr. 12 Mendoza was sentenced to “a total term of imprisonment of forty years.” Id. at 4. The plea 13 agreement signed by Mr. Mendoza states that, had Mr. Mendoza been found guilty on all 14 seventeen counts, he could have been sentenced to a total term of imprisonment of “90 years to 15 life plus 20 years.” Id. at 23. Indeed, it appears from the plea agreement that, even if the 16 prosecutor had reinstated only Counts 6-11, Mr. Mendoza would have faced the possibility of 56 17 years imprisonment but for his plea deal.2 See id. at 22 (showing that the maximum penalty for 18 each of counts 1-11 was eight years, to be served consecutively); see also Cal. Penal Code 19 § 288(a) (“[A] person who willfully and lewdly commits any lewd or lascivious act, . . . upon or 20 with the body, or any part or member thereof, of a child who is under the age of 14 years, . . . is 21 guilty of a felony and shall be punished by imprisonment in the state prison for three, six, or eight 22 years.”). 23 In his plea agreement, Mr. Mendoza “agree[d] to give up all [his] rights regarding both 24 25 2 As noted above, the Court upheld Mr. Mendoza’s convictions for Counts 1-5. The plea agreement reflects an imprisonment term of sixteen years for those counts. See Pet. at 18-19. 26 Assuming Mr. Mendoza would not have been re-sentenced on Counts 1-5, but would receive the maximum sentence of eight consecutive years for each of Counts 6-11, he faced a possible term of 27 imprisonment of fifty-six years. See id. at 18-21. If Mr. Mendoza were eligible for resentencing 1 state and federal writs and appeals.” Pet. at 23. He expressly “agree[d] not to file any collateral 2 attack (example: Writ of Habeas Corpus, Motion pursuant to P.C. § 1016.5, etc[.]) on [his] 3 conviction or sentence at any time in the future.” Id. Mr. Mendoza was re-sentenced on August 4 13, 2019. See id. at 1. 5 Following his re-sentencing, Mr. Mendoza filed a habeas petition in Monterey County 6 Superior Court, which was denied. See Pet. at 2-3 (chronicling Mr. Mendoza’s attempts to attack 7 his plea deal). In the habeas proceedings, the Monterey County Superior Court found that Mr. 8 Mendoza had waived his habeas claim by failing to raise it in the trial court. See Pet. at 28. Mr. 9 Mendoza appealed this denial to the Sixth Appellate District and to the California Supreme Court, 10 both of which denied his state habeas petition without additional comment. See id. at 30, 31. 11 Mr. Mendoza sought permission from the Ninth Circuit to file a second-or-successive 12 federal habeas petition. See Docket No. 1-1. The Ninth Circuit concluded that, because Mr. 13 Mendoza had not previously filed a federal habeas petition attacking his resentencing, the request 14 was unnecessary. See id. The Ninth Circuit transferred the instant Petition to this Court, with a 15 deemed filing date of April 28, 2021. See id. 16 This Court screened the Petition pursuant to 28 U.S.C. § 2243 and Rule 4 of the Rules 17 Governing Section 2254 Cases, dismissed three of Mr. Mendoza’s claims, and ordered 18 Respondent to address the remaining claim. See Docket No. 5 (“Screening Order”). 19 Respondent moved to dismiss the Petition. See Docket No. 9 (“MTD” or “Dismissal 20 Motion”). Petitioner opposed Respondent’s motion, see Docket No. 10 (“Opposition”), and 21 Respondent filed a reply, see Docket No. 11 (“Reply”). 22 III. DISCUSSION 23 A. Standard of Review 24 Under the Anti-Terrorism and Effective Death Penalty Act of 1996 (AEDPA), this Court 25 may entertain a petition for writ of habeas corpus brought by a person in state custody “only on 26 the ground that he is in custody in violation of the Constitution or laws and treaties of the United 27 States.” 28 U.S.C. § 2254(a). This Court may not grant a petition with respect to any claim that 1 resulted in a decision that was contrary to, or involved an unreasonable application of, clearly 2 established Federal law, as determined by the Supreme Court of the United States; or (2) resulted 3 in a decision that was based on an unreasonable determination of the facts in light of the evidence 4 presented in the State court proceeding.” 28 U.S.C. §2254(d). 5 “Under the ‘contrary to’ clause, a federal habeas court may grant the writ if the state court 6 arrives at a conclusion opposite to that reached by [the Supreme] Court on a question of law or if 7 the state court decides a case differently than [the] Court on a set of materially indistinguishable 8 facts.” Williams v. Taylor, 529 U.S. 362, 412-413 (2000). “Under the ‘unreasonable application’ 9 clause, a federal habeas court may grant the writ if the state court identifies the correct governing 10 legal principle from [the] Court’s decisions but unreasonably applies that principle to the facts of 11 the prisoner’s case.” Id. at 413. Additionally, “[a] federal habeas court may not issue the writ 12 simply because that court concludes in its independent judgment that the relevant state-court 13 decision applied clearly established federal law erroneously or incorrectly. Rather, the application 14 must also be unreasonable.” Id. at 411. A federal habeas court making the “unreasonable 15 application” inquiry should ask whether the state court’s application of clearly established federal 16 law was “objectively unreasonable.” Id. at 409. Finally, habeas relief is warranted only if the 17 constitutional error at issue had a “substantial and injurious effect or influence in determining the 18 jury’s verdict.” Penry v. Johnson, 532 U.S. 782, 796 (2001). 19 B. Claim 1 Still is Not Cognizable 20 Mr. Mendoza’s first claim is that a subsequent change in California law renders his plea 21 agreement “unconstitutional and invalid.” Pet. at 8. Specifically, Mr. Mendoza contends that, 22 “with the governor signing passage of A[ssembly] B[ill] No. 1618, adding sec[tion] 1016.8 to the 23 Penal Code, [Mr. Mendoza’s plea agreement is] void as against public policy.” Id. The Court 24 found in the Screening Order that this claim was not cognizable because it relies on a change in 25 state law. See Screening Order at 3-4. The Court therefore dismissed Claim 1. See id. 26 In an attachment to his Opposition to Respondent’s Dismissal Motion, Mr. Mendoza 27 argues that Claim 1 should not have been dismissed. See Opp. at 5. Specifically, Mr. Mendoza 1 Id. This argument is unavailing. 2 First, Mr. Mendoza’s argument in the Opposition only reinforces the Court’s conclusion 3 that Claim 1 relies on state, rather than federal, law. The Petition contends that Mr. Mendoza’s 4 plea agreement should be invalidated pursuant to California Penal Code subsection 1016.8(a)(4), 5 see Pet. at 8, and the Opposition’s only argument that the Court may consider this claim is based 6 on what the “California law” “cite[s],” Opp. at 5. Notwithstanding what the “California law” 7 “cite[s],” multiple courts have held that California Penal Code Section 1016.8 cannot give rise to a 8 federal habeas claim because it is a state law. See, e.g., Solomon v. United States Dist. Ct., No. 9 2:21-CV-00718-JDP(HC), 2021 WL 4924965, at *1 (E.D. Cal. Oct. 21, 2021) (concluding that 10 petitioner had failed to state a cognizable claim based on California Penal Code § 1016.8 because 11 “his claim . . . relates only to state sentencing law”), report and recommendation adopted, No. 12 2:21-CV-00718-JAM-JDP(HC), 2021 WL 6113790 (E.D. Cal. Dec. 27, 2021).3 13 Second, a review of Penal Code Section 1016.8 reveals that it cites federal law only for 14 legal background. In its entirety, the Penal Code Section 1016.8 provides, 15 (a) The Legislature finds and declares all of the following: (1) The California Supreme Court held in Doe v. Harris (2013) 57 16 Cal.4th 64 that, as a general rule, plea agreements are deemed to 17 3 See also Parker v. Koenig, No. 5:22-CV-00323-CAS-GJS, 2022 WL 2102861, at *3 (C.D. Cal. 18 May 17, 2022) (same), report and recommendation adopted, No. 5:22-CV-00323-CAS-GJS, 2022 WL 2757410 (C.D. Cal. July 13, 2022); Floyd v. Hill, No. CV 21-05767-MCS (KS), 2021 WL 19 5088730, at *5 (C.D. Cal. Sept. 17, 2021) (same), report and recommendation adopted, No. CV 21-05767-MCS (KS), 2021 WL 5087055 (C.D. Cal. Nov. 2, 2021); Watts v. Jaime, No. CV 19- 20 7415-MCS (AGR), 2020 WL 11629123, at *6 (C.D. Cal. Dec. 23, 2020) (same), report and recommendation adopted, No. CV 19-7415-MCS (AGR), 2021 WL 4732919 (C.D. Cal. Jan. 21, 21 2021); Hunter-Harrison v. Atchley, No. 2:20-CV-00592-WBS-CKD, 2020 WL 7239590, at *5 (E.D. Cal. Dec. 9, 2020) (same), report and recommendation adopted, No. 2:20-CV-0592-WBS- 22 CKD-P, 2021 WL 616891 (E.D. Cal. Feb. 17, 2021); Johnson v. California, No. 2:19-CV-02439- GGH-P, 2019 WL 8648005, at *1 (E.D. Cal. Dec. 30, 2019) (same), report and recommendation 23 adopted, No. 2:19-CV-02439-JAM-GGH-P, 2020 WL 2193113 (E.D. Cal. May 6, 2020). Cf. Slaughter v. California, No. 2:20-CV-1552-JAK-JC, 2020 WL 2097746, at *3 (C.D. Cal. Apr. 30, 24 2020) (concluding that California Penal Code § 1016.8 did not restart petitioner’s habeas clock because it is a new state law); Gilmore v. Hill, No. 20-CV-2230-WQH-MDD, 2022 WL 1157898, 25 at *3 (S.D. Cal. Apr. 18, 2022) (same), report and recommendation adopted, No. 20-CV-2230- WQH-MDD, 2022 WL 2817472 (S.D. Cal. July 19, 2022); Fletcher v. Sherman, No. 20-CV- 26 8538-DSF-AGR, 2021 WL 1022863, at *3 (C.D. Cal. Jan. 19, 2021) (same, and further noting that reliance on California Penal Code § 1016.8 presented “state-law questions” for which “federal 27 habeas corpus relief does not lie”) (citations omitted), report and recommendation adopted, No. incorporate the reserve power of the state to amend the law or enact 1 additional laws for the public good and in pursuance of public policy. That the parties enter into a plea agreement does not have 2 the effect of insulating them from changes in the law that the Legislature has intended to apply to them. 3 (2) In Boykin v. Alabama (1969) 395 U.S. 238, the United States Supreme Court held that because of the significant constitutional 4 rights at stake in entering a guilty plea, due process requires that a defendant’s guilty plea be knowing, intelligent, and voluntary. 5 (3) Waiver is the voluntary, intelligent, and intentional relinquishment of a known right or privilege (Estelle v. Smith (1981) 6 451 U.S. 454, 471, fn. 16, quoting Johnson v. Zerbst (1938) 304 U.S. 458, 464). Waiver requires knowledge that the right exists 7 (Taylor v. U.S. (1973) 414 U.S. 17, 19). (4) A plea bargain that requires a defendant to generally waive 8 unknown future benefits of legislative enactments, initiatives, appellate decisions, or other changes in the law that may occur after 9 the date of the plea is not knowing and intelligent. (b) A provision of a plea bargain that requires a defendant to 10 generally waive future benefits of legislative enactments, initiatives, appellate decisions, or other changes in the law that may 11 retroactively apply after the date of the plea is void as against public policy. 12 (c) For purposes of this section, “plea bargain” has the same meaning as defined in subdivision (b) of Section 1192.7. 13 14 Cal. Penal Code § 1016.8 (2020). The subsection invalidating plea agreements which “waive 15 unknown future benefits” does not cite to federal law. See id. at § 1016.8(a)(4). Rather, a plain 16 reading of the statute reveals that federal law is cited only for the background principle that a plea 17 agreement must be voluntary, intelligent, knowing, and intentional. See id. at § 1016.8(a)(2)-(3) 18 (citing cases). By contrast, the conclusion in subsections (a)(4) and (b) that plea agreements 19 including certain types of waivers are “not knowing and intelligent” is not a recitation of federal 20 law, but instead is a statement of a California policy decision to exclude certain waivers from the 21 definition of “knowing and intelligent.” The Court is aware of no precedent that would allow it to 22 review a state-law claim merely because the state considered federal law as background to its 23 policy decision. 24 Because Claim 1 relies on state law, it is not cognizable and Mr. Mendoza’s request for 25 reconsideration is DENIED. 26 C. Claim 2 is Procedurally Barred 27 Mr. Mendoza’s second claim is for vindictive prosecution; he argues that the prosecutor 1 exercising a constitutional or statutory right. See Pet. at 9-10; see also Bordenkircher v. Hayes, 2 434 U.S. 357, 363 (1978) (explaining that this constitutes a claim for vindictive prosecution). The 3 Court found Claim 2 cognizable and ordered Respondent to address it, but noted in the Screening 4 Order that this claim appeared to be procedurally defaulted and may also have been waived by Mr. 5 Mendoza’s plea agreement. See Screening Order at 6-7. 6 Respondent moved to dismiss the Petition, arguing that Claim 2 was waived by Mr. 7 Mendoza’s plea agreement and that it additionally was procedurally defaulted. See generally, 8 MTD. The Court agrees that this claim is procedurally defaulted, and so need not reach the 9 argument that it additionally was waived by the plea agreement. 10 1. The State Court Decision Rests on an Independent and Adequate State Law Ground 11 A federal court will not review a question of federal law decided by a state court if the 12 decision also rests on an “independent and adequate” state law ground. Coleman v. Thompson, 13 501 U.S. 722, 729-30 (1991). If a state prisoner has defaulted a claim in state court pursuant to an 14 adequate and independent state ground, federal habeas review is barred unless the prisoner can 15 show “cause” for the default and actual prejudice as a result of the alleged violation of federal law, 16 or unless the prisoner can demonstrate that failure to consider the claim will result in a 17 “fundamental miscarriage of justice.” Id. at 750. 18 A state procedural bar is “independent” if the state court explicitly invokes the procedural 19 rule as a separate basis for its decision and if the application of the state procedural rule does not 20 depend on a consideration of federal law. Vang v. Nevada, 329 F.3d 1069, 1074-75 (9th Cir. 21 2003) (citing McKenna v. McDaniel, 65 F.3d 1483, 1488 (9th Cir. 1995); Park v. California, 202 22 F.3d 1146, 1152 (9th Cir. 2000)); see also Harris v. Reed, 489 U.S. 255, 265 (1989). An 23 “adequate” state rule must be “firmly established and regularly followed.” Walker v. Martin, 131 24 S. Ct. 1120, 1127 (2011) (quoting Beard v. Kindler, 130 S. Ct. 612, 618 (2009)); accord Dugger v. 25 Adams, 489 U.S. 410, 411 n. 6 (1989) (a state rule is consistently applied and well established if 26 the state courts follow it in the “vast majority of cases”). 27 Here, the Monterey County Superior Court found that Claim 2 was “waived” because Mr. 1 Docket No. 9-13 at 26. The Monterey County Superior Court cited In re Seaton, 34 Cal. 4th 193 2 (2004), for the principle that “‘a defendant should not be allowed to raise on habeas corpus an 3 issue that could have been presented at trial.’” Id. (quoting Seaton, 34 Cal. 4th at 199-200). The 4 Monterey County Superior Court thus invoked California’s contemporaneous objection 5 requirement as the basis for its decision, 4 and did not depend on federal law in its application of 6 the state procedural rule. See id.; see also Harris, 489 U.S. at 265 (extending to habeas review the 7 “plain statement” rule for determining whether a state court has relied on an independent and 8 adequate state ground); Vang, 329 F. 3d at 1074-75 (A state procedural bar is “independent” if the 9 state court specifically invokes the procedural rule as a basis for its decision.); Bennett v. Mueller, 10 322 F.3d 573, 580 (9th Cir. 2003) (“A state court’s application of a procedural rule is not 11 undermined where . . . the state court simultaneously rejects the merits of the claim.”). 12 The Monterey County Superior Court’s reliance on the contemporaneous objection rule is 13 an adequate and independent state ground for its holding. This state procedural rule is well 14 established, and the Supreme Court has recognized the validity of the contemporaneous objection 15 requirement as a bar to federal habeas review. See Wainwright v. Sykes, 433 U.S. 72, 88 (1977) 16 (describing the benefits of the contemporaneous objection requirement and recognizing it as a 17 valid bar to federal habeas review). 18 That the decision comes from the Monterey County Superior Court is of no moment, as the 19 California appellate and Supreme courts summarily denied Mr. Mendoza’s habeas petitions 20 without comment. See Pet. at 30, 31. Where the last reasoned opinion on a claim expressly 21 imposes a procedural bar, federal habeas courts are instructed to presume that a later decision 22 4 Multiple sister courts within this District have recognized that reliance on Seaton is merely an 23 invocation of the contemporaneous objection rule. See Asturias v. Borders, No. 16-CV-02149- HSG (PR), 2017 WL 6731646, at *13 (N.D. Cal. Dec. 29, 2017) (The state court’s citation to 24 Seaton was a citation to the rule “that a defendant must make a contemporaneous objection at trial in order to preserve an issue on appeal, [which] has been found to be a sufficiently independent 25 and adequate procedural rule to support the denial of a federal petition on grounds of procedural default.”); Crew v. Davis, No. 12-CV-4259 YGR, 2015 WL 7720737, at *8 (N.D. Cal. Nov. 30, 26 2015) (finding that the state court’s citation to Seaton “is a mere recitation of the already existing contemporaneous objection rule”); Williams v. Woodford, No. C 04-0966 VRW, 2006 WL 27 821891, at *5 (N.D. Cal. Mar. 28, 2006) (citing Seaton as an example of the contemporaneous 1 summarily rejecting the claim did not consider the merits in silent disregard of the procedural bar. 2 See Ylst v. Nunnemaker, 501 U.S. 797, 801-06 (1991) (announcing and explaining this 3 presumption). 4 Mr. Mendoza’s vindictive prosecution claim thus is procedurally defaulted. 5 2. Petitioner Has Not Shown Cause for the Default 6 A petitioner may show cause for a procedural default in limited circumstances, by 7 establishing constitutionally ineffective assistance of counsel or a miscarriage of justice. See 8 McCleskey v. Zant, 499 U.S. 467, 494 (1991); Coleman, 501 U.S. at 750. Here, Mr. Mendoza was 9 given the opportunity to oppose Respondent’s Dismissal Motion, but did not establish either. 5 10 Instead, Mr. Mendoza disputes the Monterey County Superior Court’s finding that he failed to 11 make a contemporaneous objection to the alleged vindictive prosecution, arguing that trial counsel 12 raised this issue in a motion.6 See Opp. 10 at 2. In the Reply, Respondent argues that “[a] federal 13 court may not revisit the issue whether a state procedural bar was properly imposed, which is a 14 question of state law.” Reply at 3. 15 Respondent is correct. It is well-established that a federal court may not examine whether 16 the state court was correct in finding a claim defaulted. See High v. Ignacio, 408 F.3d 585, 590 17 (9th Cir. 2005) (“This court accepts a state court ruling on questions of state law.”); LaFlamme v. 18 19 5 In his Opposition, Mr. Mendoza baldly states there was a “miscarriage of justice.” Opp. at 5. However, Mr. Mendoza goes on to argue that there was a “miscarriage of justice” because his 20 “vindictive claim was raised” in the trial court. Id. This is a repetition of the argument the Court rejects herein. 21 6 Petitioner provides no evidence to support this assertion. See generally, Opp. Habeas petitioners 22 bear the burden to prove, by a preponderance of the evidence, that their custody is unlawful. See Silva v. Woodford, 279 F.3d 825, 835 (9th Cir. 2002). When it comes to fact-finding, if the scales 23 are evenly balanced then the party with the burden of proof (the petitioner) loses. See Simmons v. Blodgett, 110 F.3d 39, 41-42 (9th Cir. 1997). The Court cannot assume, without any proof, that 24 the Monterey County Superior Court made a factual error when it stated that petitioner had failed to object before the trial court. 25 Moreover, the record before the Court suggests that the Monterey County Superior Court 26 did not err. In an abundance of caution the Court has searched the record provided by Respondent, and found no evidence that petitioner’s “vindictive claim” was raised to the trial court 27 in 2019. See generally, MTD, Exs. 6-11. The only reference to vindictive prosecution in the 1 Hubbard, 225 F.3d 663 at *3 (9th Cir. 2000) (unpublished) (“Federal courts sitting in habeas 2 jurisdiction do not review a state court’s application of state law.”). Rather, the federal court may 3 only consider whether the state court so held, and whether that holding is based on an adequate 4 and independent state ground. 5 Martinez v. Ryan, 926 F.3d 1215 (9th Cir. 2019), is instructive. In that case, a state habeas 6 court found the petitioner’s claim of judicial bias had been procedurally defaulted. See id. at 1224. 7 The petitioner argued that the state habeas court had erred, so his federal claim ought not to be 8 deemed defaulted. See id. The Ninth Circuit held that it “lack[ed] jurisdiction to address that 9 contention.” Id. Because the grounds relied on by the state court were both independent of 10 federal law and adequate, this “warrant[ed] preclusion of federal review.” Id. at 1225. 11 Likewise, in Poland v. Stewart, the federal district court denied multiple habeas claims as 12 procedurally defaulted. See 169 F.3d 573, 583 (9th Cir. 1999) (summarizing the procedural 13 background of the action). On appeal, the petitioner argued that the state trial court had erred in 14 finding claims defaulted, and therefore the federal district court ought not to have found the claims 15 defaulted. See id. at 584. The Ninth Circuit rejected this argument because “[f]ederal habeas 16 courts lack jurisdiction . . . to review state court applications of state procedural rules.” Id. (citing 17 cases from the United States Supreme Court). The Ninth Circuit held that the federal district court 18 “did not err” in rejecting petitioner’s claims as procedurally defaulted. Id. See also Quintero v. 19 Stewart, 121 F. App’x 203, 206–07 (9th Cir. 2005) (“While Quintero asserts that he did not waive 20 his claim,” and thus that the state court erred in finding the claim waived, “this issue is beyond our 21 reach. Federal habeas courts lack jurisdiction to review state court applications of state procedural 22 rules.”); LaFlamme, 225 F.3d 663 at *3 (rejecting an argument that a claim was not procedurally 23 defaulted because the state court erred in applying a procedural bar, and holding that the federal 24 court could not review the state court’s application of its own procedural bar). 25 The Monterey County Superior Court found that Mr. Mendoza waived his vindictive 26 prosecution claim pursuant to an adequate and independent state ground. Mr. Mendoza does not 27 establish cause and prejudice for his default. Accordingly, Claim 2 is procedurally defaulted. 1 IV. CONCLUSION 2 For the foregoing reasons, Mr. Mendoza’s implied motion for reconsideration of the 3 dismissal of Claim 1 is DENIED. Claim 2 is DISMISSED because it was procedurally defaulted. 4 There being no viable claims, Mr. Mendoza’s habeas petition is DISMISSED. 5 A certificate of appealability will not issue. See 28 U.S.C. § 2253(c). This is not a case in 6 which “reasonable jurists would find the district court’s assessment of the constitutional claims 7 debatable or wrong.” Slack v. McDaniel, 529 U.S. 473, 484 (2000). 8 This order disposes of Docket Nos. 6, 9, and 10. 9 10 IT IS SO ORDERED. 11 12 Dated: December 23, 2022 13 14 ______________________________________ EDWARD M. CHEN 15 United States District Judge 16 17 18 19 20 21 22 23 24 25 26 27