ORDER GRANTING PETITIONER'S MOTION FOR RECONSIDERATION AND, ON RECONSIDERATION, REAFFIRMING ORDER GRANTING MOTION TO DISMISS Re: Dkt. No. 24

CLAUDIA WILKEN, District Judge.

This habeas action was stayed and administratively closed so that Petitioner Dung Tran could exhaust state court remedies as to two claims. On January 8, 2014, Petitioner filed a motion to lift the stay and reopen the action together with an amended petition for a writ of habeas corpus. On March 18, 2014, the Court granted the motion and ordered Respondent to show cause why the amended petition should not be granted. On May 19, 2014, Respondent filed a motion to dismiss the new claims in the amended petition as untimely and procedurally defaulted. On January 14, 2015, the Court granted the motion to dismiss on the ground that the new claims were procedurally defaulted and that Petitioner had failed to argue cause and prejudice for the procedural default.

On February 10, 2015, Petitioner filed a motion for reconsideration of the Court's Order, arguing that, although his "cause and prejudice" argument was not labelled as such in his opposition to the motion to dismiss, he did argue it. For the reasons stated below, the Court grants the motion for reconsideration and, after reconsideration, reaffirms its Order granting Respondent's motion to dismiss.

DISCUSSION

A motion for reconsideration may be granted on the ground that the Court failed to consider facts or argument previously presented to it. See Local Rule 7-9(b)(3). Because Petitioner argues that the Court overlooked his cause and prejudice argument, it grants the motion for reconsideration.

The cause standard for overcoming a procedural default requires the petitioner to show that "`some objective factor external to the defense impeded counsel's efforts'" to construct or raise the claim." McCleskey v. Zant, 499 U.S. 467, 493 (1991)(citing Murray v. Carrier, 477 U.S. 478, 488 (1986)).

Petitioner's claims were procedurally defaulted in state court when, on December 11, 2013, the California Supreme Court issued a one-sentence denial of his petition with a citation to In re Robbins, 18 Cal. 770, 780 (1998), indicating the petition was untimely.1 Petitioner argues the untimeliness of his jury instruction claim was caused by the fact that he did not know of its existence until August 16, 2013, the date the state appellate court issued its order denying his habeas petition when, in the same order, the court granted his request for judicial notice. His request for judicial notice included the following statement: "Agree that CALCRIM 520, the jury instruction defining second-degree murder, does not explain to the jury the specific elements that are required for second-degree murder in order to consider defendant guilty or not guilty of such offense." See Dkt. No. 16 at 7. He asserts that the granting of his request for judicial notice established that CALCRIM No. 520 is incorrect.2 He also argues that, before this ruling, he could not know California law supported a finding that the jury instruction was incorrect because People v. Genovese, 168 Cal.App.4th 817, 831 (2008), held that it was correct.

It is possible to establish cause where the legal claim is so novel at the time of appeal that an attorney could not reasonably be expected to raise it. Reed v. Ross, 468 U.S. 1, 9 (1984). However, this is not such a case. First, Petitioner's contention that new law can be established when a court grants a request for judicial notice is unsupported by authority. Second, the facts show that Petitioner's argument that he "discovered" his jury instruction claim on August 16, 2013 is specious.

On October 31, 2011, Petitioner moved for a stay of this case to return to state court to exhaust claims regarding the second degree murder instruction. See Dkt. No. 12. On March 18, 2013, Petitioner presented to the state appellate court his "request for judicial notice" that CALCRIM No. 520 did not contain the elements of second degree murder. See Dkt. No. 16 at 11. This shows that Petitioner knew of the claim regarding CALCRIM No. 520 on October 31, 2011, or earlier, and that he did not just become aware of it on August 16, 2013.

Because Petitioner cannot establish cause for the untimely filing of his claim in the California Supreme Court, the Court reaffirms its previous order granting Respondent's motion to dismiss.

CONCLUSION

Based on the foregoing, the Court orders as follows.

1. The Court grants Petitioner's motion for reconsideration of its Order Granting Respondent's Motion to Dismiss. Dkt. No. 24.

2. After reconsideration, the Court reaffirms its Order Granting the Motion to Dismiss.

3. If Petitioner wishes to respond to the Answer, Dkt. No. 9, he shall do so by filing a Traverse with the Court and serving it on Respondent within twenty-eight days of the date of this Order. If he does not do so, the petition will be deemed submitted and ready for decision on the date the Traverse is due.

4. This Order terminates docket number 24.

IT IS SO ORDERED.