ORDER GRANTING MOTION TO DISMISS

Re: Dkt. Nos. 42, 43

THELTON E. HENDERSON, District Judge.

I

Petitioner, Tyrone Reed, proceeds with a pro se petition for a writ of habeas corpus under 28 U.S.C. § 2254. The original petition presented the following claims: (1) due process violation based on trial court's decision not to admit exculpatory evidence; (2) ineffective assistance of trial counsel; (3) due process violation based on trial judge's bias because she took the charges against Petitioner personally and because Petitioner had filed numerous civil rights complaints against the judge; (4) ineffective assistance of counsel appointed on remand to represent Petitioner on a motion for a new trial; and (5) due process violation based on trial court's refusal to hold a new trial motion or a Marsden hearing based on incompetence of counsel.

Respondent filed a motion to dismiss because only claim four had been exhausted. Petitioner eventually elected to dismiss the unexhausted claims, and the petition continued solely on claim four. Respondent filed an answer, but, before the Court could issue a ruling on the sole claim in the petition, Petitioner filed an amended petition (Docket No. 33) and stated that the California Supreme Court had recently denied a state habeas petition, presumably exhausting the additional claims.

The amended petition appeared to present the same claims as the original petition, though claims one and five as described above appeared to have been combined. Wary that Petitioner was again bringing a mixed petition, the Court ordered him to provide a copy of the petition submitted to the California Supreme Court, rather than risk spending many more months being spent on a second motion to dismiss for failure to exhaust.

Petitioner first submitted a filing (Docket No. 38) that was a portion of the petition to the California Supreme Court, but lacked the exhibits. The petition only presented one claim to the California Supreme Court which was that the state superior court and state court of appeal were abusing their authority. Docket No. 38 at 7. That petition did not present the substance of the claims he brings in this federal petition.

Petitioner next submitted a filing (Docket No. 39) that contained the petition to the California Supreme Court and exhibits that were presumably filed with the California Supreme Court. The exhibits are several hundred pages and contain his petition to the California Court of Appeal, briefs from prior appeals, transcripts, and many cases. Interspersed throughout the hundreds of pages are the claims Petitioner presents in this federal petition.

Unfortunately, the Court could not ascertain if the claims were or were not exhausted1 and ordered Respondent to either answer the new claims, or if the claims were unexhausted, untimely, or presented another procedural problem, file a motion to dismiss. Respondent has filed a motion to dismiss the amended petition as unexhausted and procedurally defaulted

II

Before he may challenge either the fact or length of his confinement in a habeas petition in this court, petitioner must present to the California Supreme Court any claims he wishes to raise in this court. See Rose v. Lundy, 455 U.S. 509, 522 (1982) (holding every claim raised in federal habeas petition must be exhausted). The general rule is that a federal district court must dismiss a federal habeas petition containing any claim as to which state remedies have not been exhausted. Id.

A federal court will not review questions of federal law decided by a state court if the decision also 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, 729-30 (1991). In the context of direct review by the United States Supreme Court, the "independent and adequate state ground" doctrine goes to jurisdiction; in federal habeas cases, in whatever court, it is a matter of comity and federalism. Id. The procedural default rule is a specific instance of the more general "adequate and independent state grounds" doctrine. Wells v. Maass, 28 F.3d 1005, 1008 (9th Cir. 1994).

In cases in which a state prisoner has defaulted his federal claims in state court pursuant to an independent and adequate state procedural rule, federal habeas review of the claims is barred unless the prisoner can demonstrate cause for the default and actual prejudice as a result of the alleged violation of federal law, or demonstrate that failure to consider the claims will result in a fundamental miscarriage of justice. Coleman, 501 U.S. at 750. Where petitioner's claims were not fairly presented to the state courts, but an independent and adequate state procedural rule exists which bars their review, claims are procedurally barred in federal habeas review. Casey v. Moore, 386 F.3d 896, 919 (9th Cir. 2004) (finding that Washington's state procedural rule setting one-year limit on a personal restraint petition, which raises a federal claim not raised on direct review, precludes federal review of claim that would no longer be timely under that rule).

III

A

On September 17, 2014, the Alameda County Superior Court denied Petitioner's habeas petition as successive and an abuse of the writ, citing In re Clark, 5 Cal.4th 750, 767-68, 774, 797 (1993) and In re Miller, 17 Cal.2d 734, 735 (1941). Docket No. 39 at 27.

On January 6, 2015, Petitioner filed a habeas petition in the California Court of Appeal that raised five claims: (1) ineffective assistance of trial counsel for failing to investigate exculpatory information (Docket No. 39 at 35); (2) the trial court violated petitioner's rights by limiting the scope of counsel's investigation on remand (Brady violation) (Docket No. 39 at 36); (3) the trial judge was biased against petitioner (Docket No. 39-2 at 8-10); (4) counsel on remand was ineffective (Docket No. 39-3 at 36-38); and (5) the prosecutor erroneously excused the only black prospective juror on the panel (Docket No. 39-4 at 1-6).

The California Court of Appeal denied the petition, stating:

Docket No. 39 at 25.

On February 13, 2015, Petitioner filed a habeas petition in the California Supreme Court that raised one claim asserting that the superior court and court of appeal violated his due process rights and demonstrated bias by denying his habeas petitions. Docket No. 39 at 22. It appears that he attached his petition to the California Court of Appeal as an exhibit to the petition to the California Supreme Court. Docket No. 39 at 33. The California Court of Appeal petition consisted of approximately 247 pages. Docket No. 39. Interspersed throughout the hundreds of pages were the claims Petitioner presented to the California Court of Appeal. The California Supreme Court denied the petition without comment or citation. Docket No. 39 at 19.

B

Petitioner repeatedly asserts that all claims were presented to the California Supreme Court and therefore were exhausted when that court denied the petition. Liberally construing the petition and Petitioner's arguments concerning his presentation of claims to the California Supreme Court, and assuming that the claims are exhausted, the claims are procedurally defaulted as untimely.

The California Court of Appeal denied all claims and cited to In re Clark, 5 Cal.4th 750, 782-799 (1993) and In re Robbins, 18 Cal.4th 770, 780-81 (1998). The California Supreme Court denied the petition without comment. In Ylst the Supreme Court held that where the last reasoned opinion on a claim expressly imposes a procedural bar, it should be presumed that a later decision summarily rejecting the claim did not silently disregard the bar and consider the merits. See Ylst v. Nunnemaker, 501 U.S. 797, 801-06 (1991).

California's timeliness rule is independent, Bennett v. Mueller, 322 F.3d 573, 582-83 (9th Cir. 2003), and adequate, Walker v. Martin, 562 U.S. 307, 321 (2011). It thus may be the basis for a federal district court to hold that a claim in a federal petition that was rejected for untimeliness in the California courts is procedurally defaulted. The Supreme Court has noted that "California courts signal that a habeas petition is denied as untimely by citing the controlling decisions, i.e., Clark and Robbins." Walker, 562 U.S. at 310; see also Thorson v. Palmer, 479 F.3d 643, 645 (9th Cir. 2007) (state court citation to Robbins was clear ruling that state petition was untimely).

Thus, all the claims the Petitioner seeks to add in the amended petition are procedurally defaulted and may not continue unless Petitioner demonstrates cause and prejudice or a fundamental miscarriage of justice. See Coleman, 501 U.S. at 750. Respondent discussed cause and prejudice in the motion to dismiss, but Petitioner has failed to provide any arguments to address the issue. The newly added claims in the amended petition are dismissed as procedurally defaulted. The action continues on the sole claim that has already been fully briefed and the Court will look to the merits shortly.2

IV

For the foregoing reasons and for good cause shown,

1. Petitioner's motion to dismiss (Docket No. 43) is DENIED.

2. Respondent's motion to dismiss (Docket No. 42) is GRANTED and the additional claims in the amended petition are dismissed. This case proceeds on the sole claim that has already been fully briefed (Docket Nos. 25, 29, 30).

IT IS SO ORDERED.