JAMES K. SINGLETON, Jr., Senior District Judge.
Kody Lee Kaplon, a state prisoner proceeding pro se, filed a Petition for a Writ of Habeas Corpus with this Court pursuant to 28 U.S.C. § 2254. Kaplon is in the custody of the California Department of Corrections and Rehabilitation and incarcerated at California State Prison, Corcoran. Respondent has answered, and Kaplon has not replied.
On May 18, 2009, Kaplon was charged with attempted murder (count 1), sexual intercourse with a child under ten years of age (count 2), sexual penetration by a foreign object of a child under ten years of age (count 3), two counts of oral copulation of a child under ten years of age (counts 4 and 5), kidnapping with a special allegation that the victim was under the age of fourteen years (count 6), and child endangerment (count 7). The information also alleged with respect to all counts that Kaplon personally inflicted great bodily injury and that the counts were violent and serious felonies. Kaplon pled not guilty and denied the special allegations. On direct appeal of his conviction, the California Court of Appeal laid out the following facts underlying Kaplon's case:
In July 2010, Judge Langford denied the motion. (At that time, it had already been determined that Judge Masunaga would be the trial judge in the case.) Judge Langford explained his ruling as follows:
People v. Kaplon, No. C069497, 2013 WL 120847, at *1-3 (Cal. Ct. App. Jan. 10, 2013).
Through counsel, Kaplon appealed his conviction, arguing that: 1) the trial court erred in denying his motion for a change of venue; 2) his rights to due process and to present a defense were violated when the Superior Court failed to retain all of the jurors' written questionnaires and the Court of Appeal denied his application for a settled statement as to the destroyed questionnaires of the unseated jurors; and 3) the trial court erred as to counts 2 through 6 by failing to sua sponte instruct the jury pursuant to CALCRIM No. 359, Corpus Delicti.
Kaplon, proceeding pro se, then filed a petition for a writ of habeas corpus in the superior court. In that petition, he alleged: 1) "Andrew Marx, my public defender, failed to bring up change in venue after voir dire;" 2) "there was a conflict of interest with Mr. Marx's investigator Rob Shelton;" 3) "there was semen found on the victim that did not match my D.N.A. profile, but was ignored" by the prosecutor; and 4) "I was seen by the jurors in handcuffs and shackles." The superior court denied the petition on May 28, 2013, with citations to In re Waltreus, 397 P.2d 1001, 1005 (Cal. 1965) (barring relitigation on habeas of claims previously raised and rejected on direct appeal) and In re Dixon, 264 P.2d 513, 514 (Cal. 1953) (holding that habeas relief is unavailable if "the claimed errors could have been, but were not, raised upon a timely appeal from a judgment of conviction"). Likewise, the court cited to People v. Duvall, 886 P.2d 1252, 1258 (Cal. 1995) and In re Swain, 209 P.2d 793, 796 (Cal. 1949). In re Swain stands for the rule that a California habeas petition must state "with particularity the facts" upon which relief is sought. 209 P.2d at 796. Duvall re-asserts the requirement that facts be stated fully and with particularity and stands for the additional proposition that documentary evidence must be provided. 886 P.2d at 1258 (stating that habeas petitions "should both (i) state fully and with particularity the facts on which relief is sought as well as (ii) include copies of reasonably available documentary evidence supporting the claim, including pertinent portions of trial transcripts and affidavits or declarations" (citations omitted)).
Kaplon then raised the same claims in a second pro se habeas petition in the superior court. The superior court dismissed this petition on the same procedural grounds on September 6, 2013. Kaplon then raised the claims in a pro se habeas petition and supplemental habeas petition
Kaplon then timely filed a pro se Petition for a Writ of Habeas Corpus to this Court on March 7, 2014.
In his pro se Petition before this Court, Kaplon raises the following four claims that he unsuccessfully raised in his habeas petitions to the state courts: 1) the trial court erred in denying his motion for a change of venue and trial counsel was ineffective for failing to renew the motion after voir dire; 2) DNA evidence found on the victim did not match his DNA profile; 3) he had a conflict of interest with his attorney's investigator; and 4) he was purposely walked in front of the jury in shackles.
Under the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"), 28 U.S.C. § 2254(d), this Court cannot grant relief unless the decision of the state court was "contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States," § 2254(d)(1), or "was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding," § 2254(d)(2). A state-court decision is contrary to federal law if the state court applies a rule that contradicts controlling Supreme Court authority or "if the state court confronts a set of facts that are materially indistinguishable from a decision" of the Supreme Court, but nevertheless arrives at a different result. Williams v. Taylor, 529 U.S. 362, 406 (2000).
The Supreme Court has explained that "clearly established Federal law" in § 2254(d)(1) "refers to the holdings, as opposed to the dicta, of [the Supreme Court] as of the time of the relevant state-court decision." Id. at 412. The holding must also be intended to be binding upon the states; that is, the decision must be based upon constitutional grounds, not on the supervisory power of the Supreme Court over federal courts. Early v. Packer, 537 U.S. 3, 10 (2002). Where holdings of the Supreme Court regarding the issue presented on habeas review are lacking, "it cannot be said that the state court `unreasonabl[y] appli[ed] clearly established Federal law.'" Carey v. Musladin, 549 U.S. 70, 77 (2006) (citation omitted).
To the extent that the Petition raises issues of the proper application of state law, they are beyond the purview of this Court in a federal habeas proceeding. See Swarthout v. Cooke, 131 S.Ct. 859, 863 (2011) (per curiam) (holding that it is of no federal concern whether state law was correctly applied). It is a fundamental precept of dual federalism that the states possess primary authority for defining and enforcing the criminal law. See, e.g., Estelle v. McGuire, 502 U.S. 62, 67-68 (1991) (a federal habeas court cannot reexamine a state court's interpretation and application of state law); Walton v. Arizona, 497 U.S. 639, 653 (1990) (presuming that the state court knew and correctly applied state law), overruled on other grounds by Ring v. Arizona, 536 U.S. 584 (2002).
In applying these standards on habeas review, this Court reviews the "last reasoned decision" by the state court. See Robinson v. Ignacio, 360 F.3d 1044, 1055 (9th Cir. 2004) (citing Avila v. Galaza, 297 F.3d 911, 918 (9th Cir. 2002)). Under the AEDPA, the state court's findings of fact are presumed to be correct unless the petitioner rebuts this presumption by clear and convincing evidence. 28 U.S.C. § 2254(e)(1); Miller-El v. Cockrell, 537 U.S. 322, 340 (2003).
Kaplon has not replied to Respondent's answer. The relevant statute provides that "[t]he allegations of a return to the writ of habeas corpus or of an answer to an order to show cause in a habeas corpus proceeding, if not traversed, shall be accepted as true except to the extent that the judge finds from the evidence that they are not true." 28 U.S.C. § 2248; see also Carlson v. Landon, 342 U.S. 524, 530 (1952). Where, as here, there is no traverse filed and no evidence offered to contradict the allegations of the return, the court must accept those allegations as true. See Phillips v. Pitchess, 451 F.2d 913, 919 (9th Cir. 1971).
Respondent contends that Kaplon's Petition should be dismissed because all of the asserted claims are procedurally defaulted. Respondent points out that, in denying Kaplon's state habeas claims, the state court cited Swain and Duvall. After reviewing the facts and applicable law, the Court agrees that the nature of the procedural bar means that the claims fail to meet the exhaustion requirement because they have not been "fairly presented" to the state courts.
Federal courts "will not review a question of federal law decided by a state court if the decision of that court rests on a state law ground that is independent of the federal question and adequate to support the judgment." Coleman v. Thompson, 501 U.S. 722, 729 (1991). This Court may not reach the merits of procedurally defaulted claims, that is, claims "in which the petitioner failed to follow applicable state procedural rules in raising the claims." Sawyer v. Whitley, 505 U.S. 333, 338 (1992). "The state-law claim may be a substantive rule dispositive of the case, or a procedural barrier to adjudication of the claim on the merits." Walker v. Martin, 131 S.Ct. 1120, 1127 (2011). Procedural default does not preclude federal habeas review unless the last state court rendering judgment in a case "clearly and expressly" states that its judgment rests on a state procedural bar. Teague v. Lane, 489 U.S. 288, 298-99 (1989) (quoting Harris v. Reed, 489 U.S. 255, 262-63 (1989)). "In order to constitute adequate and independent grounds sufficient to support a finding of procedural default, a state rule must be clear, consistently applied, and well established at the time of the petitioner's purported default." Morales v. Calderon, 85 F.3d 1387, 1393 (9th Cir. 1996) (internal quotation marks and citation omitted).
Under California law, a citation to People v. Duvall indicates that a petitioner has failed to state his claim with sufficient particularity for the state court to examine the merits of the claim, and/or has failed to "include copies of reasonably available documentary evidence supporting the claim, including pertinent portions of trial transcripts and affidavits or declarations." 886 P.2d at 1258. Like Duvall, a citation to Swain stands for the proposition that a petitioner has failed to state his claim with sufficient particularity. 209 P.2d at 796.
If a petition is dismissed for failure to state the facts with particularity—that is, with a cite to Swain—the petitioner may file a new petition curing the defect. See Gaston v. Palmer, 417 F.3d 1030, 1037 (9th Cir. 2005); see Kim v. Villalobos, 799 F.2d 1317, 1319 (9th Cir. 1986). In Kim, 799 F.2d at 1319, the Ninth Circuit found that the Swain citation indicated that the claims were unexhausted because their pleadings defects, i.e., lack of particularity, could be cured in a renewed petition. It therefore appears that the California courts would have allowed Kaplon to file a new state petition remedying these defects. Accordingly, the Duvall/Swain bar did not cause these claims to be procedurally defaulted in state court and thus this bar does not cause them to be procedurally defaulted in federal court either. See Cross v. Sisto, 676 F.3d 1172, 1177 (9th Cir. 2012) (California state court's denial of petitioner's habeas petition with citation to Swain constituted dismissal without prejudice and with leave to amend to plead required facts with particularity and thus did not signify that petitioner's claims were procedurally barred as a matter of state law).
However, in Kim, the Ninth Circuit also stated that it was "incumbent" on the district court, in determining whether the federal standard of "fair presentation" of a claim to the state courts had been met, to independently examine Kim's petition to the California Supreme Court. 799 F.3d at 1320. "The mere recitation of In re Swain does not preclude such review." Id. A review of Kaplon's state petition here shows, as Respondent has noted, that Kaplon failed to recite sufficient facts to address his claims. For example, Kaplon's first claim in the Petition states only that: "My change of venue was wrongfully denied. My attorney also failed to renew the motion after voir dire." In his state habeas petition to the Supreme Court, Kaplon merely alleged, "My attorney, Andrew Marx, failed to renew a motion for change in venue, in which the judge originally denied without prejudice but maintained the option of revisiting the issue before trial began." A review of the record reveals that each claim is tersely presented, without factual detail or elaboration, in both the instant Petition and in the unsuccessful habeas petition to the state supreme court.
Accordingly, the California Supreme Court's denial of his claims with citations to Swain and Duvall indicates that Kaplon's claims were not "fairly presented" to the state high court and that Kaplon could have re-submitted a state habeas petition with greater specificity but did not. Kaplon's failure to do so means that his claims are unexhausted.
Moreover, the lack of particularity also bars any meaningful review in federal court, independent of his failure to fairly present the claims to the state courts. Pro se habeas filings must be construed liberally. See Roy v. Lampert, 465 F.3d 964, 970 (9th Cir. 2006) ("We must construe pro se habeas filings liberally.") (internal quotation marks and citations omitted). However, "[c]onclusory allegations which are not supported by a statement of specific facts do not warrant habeas relief." James v. Borg, 24 F.3d 20, 26 (9th Cir. 1994); see also Jones v. Gomez, 66 F.3d 199, 204-205 (9th Cir. 1995); Greenway v. Schriro, 653 F.3d 790, 804 (9th Cir. 2011) ("[C]ursory and vague claim[s] cannot support habeas relief."). A petitioner must state his claims with sufficient specificity. See Wacht v. Cardwell, 604 F.2d 1245, 1246-47 (9th Cir. 1979); see also Blackledge v. Allison, 431 U.S. 63, 75 n.7 (1977) ("the petition is expected to state facts that point to a real possibility of constitutional error") (citation omitted) (internal quotation marks omitted).
Likewise, allegations such as Kaplon's which are not supported by reference to the record or elaboration of facts also fail to meet the requirement of Habeas Corpus Rule 2(c) that a petitioner "specify all the grounds for relief available to the petitioner" and "state the facts supporting each ground." Mayle v. Felix, 545 U.S. 644, 655-56 (2005); Greenway v. Schriro, 653 F.3d 790, 804 (9th Cir. 2011); Jones, 66 F.3d at 204-05; see also Premo v. Moore, 131 S.Ct. 733, 741-42 (2011). Kaplon's Petition fails to abide by these requirements. Kaplon's failure to plead his claims with sufficient specificity precludes meaningful federal habeas review, and he is therefore not entitled to relief on any ground raised in his Petition.
Kaplon is not entitled to relief on any ground raised in his Petition.
The Clerk of the Court is to enter judgment accordingly.
