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`UNITED STATES DISTRICT COURT
`SOUTHERN DISTRICT OF CALIFORNIA
`
` Case No.: 22-cv-01101-RSH-JLB
`
`REPORT AND
`RECOMMENDATION RE:
`PETITION FOR
`WRIT OF HABEAS CORPUS
`
`[ECF No. 1]
`
`Petitioner,
`
`Respondents.
`
`ELLIS BERNARD SCOTT,
`
`v.
`B. CATES, et al.,
`
`
`
`Petitioner Ellis Bernard Scott (“Petitioner”), a state prisoner proceeding pro se, filed
`
`a Petition for Writ of Habeas Corpus (“Petition”) pursuant to 28 U.S.C. § 2254. (ECF No.
`1.) Petitioner challenges his 2018 conviction in San Diego Superior Court for assault with
`a deadly weapon. (Id. at 1; ECF No. 13-1 at 211.) This Report and Recommendation is
`submitted to the Honorable Robert S. Huie, United States District Judge, pursuant to
`28 U.S.C. § 636(b)(1) and Local Civil Rule 72.1(d). For the reasons set forth below, the
`Court RECOMMENDS that the Petition be DENIED.
`I.
`BACKGROUND
`A.
`Procedural Background
`
`On March 9, 2018, a San Diego Superior Court jury found Petitioner guilty of assault
`with a deadly weapon in violation of California Penal Code section 245(a)(1). (ECF No.
`
`1
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`13-1 at 257.) The jury also found that Petitioner personally used a dangerous and deadly
`weapon, a golf club, during the offense, within the meaning of California Penal Code
`section 1192.7(c)(23). (Id.) In a bifurcated proceeding, Petitioner admitted having
`suffered three prior strike convictions (Cal. Penal Code §§ 667(b)–(i), 668, 1170.12) and
`two prior serious felony convictions (Cal. Penal Code §§ 667(a)(1), 668, 1192.7(c)), and
`also admitted to having served three prior prison terms (Cal. Penal Code § 667.5(b)). (ECF
`No. 13-1 at 259, 261.) The trial court sentenced Petitioner to 25 years to life plus 10 years
`in state prison. (Id. at 211, 261.) Petitioner’s sentence was comprised of 25 years to life
`pursuant to the Three Strikes law, plus two consecutive five-year terms for the prior serious
`felony enhancements. (Id.)
`Petitioner appealed his conviction to the California Court of Appeal,1 arguing that
`the prosecutor committed prosecutorial error during rebuttal closing argument by referring
`to evidence outside of the record, and that defense counsel provided ineffective assistance
`in failing to object to the prosecutor’s argument. (ECF No. 13-11 at 16–29.) Petitioner
`also asked that the matter be remanded for a mental health diversion eligibility hearing
`under the retroactive application of the newly enacted California Penal Code section
`1001.36 and for the trial court to determine whether to strike his two serious felony
`enhancements under California Penal Code section 667(a)(1) due to another retroactive
`change in the law. (Id. at 29–48.)
`The Court of Appeal concluded that Petitioner had forfeited his claim of
`prosecutorial error by failing to timely object to the prosecutor’s argument, and that
`Petitioner’s related ineffective assistance of counsel claim failed for lack of prejudice.
`(ECF No. 13-13 at 2.) The appellate court further determined that Petitioner was entitled
`to a remand for further proceedings in the trial court given the two retroactive changes in
`the law. (Id. at 3.) The Court of Appeal therefore reversed the judgment and remanded
`
`
`
`1
`of Appeal.
`
`All references in this Order to the Court of Appeal refer to the California Court
`
`2
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`the matter to the trial court with directions to conduct a mental health diversion eligibility
`hearing under California Penal Code section 1001.36. (Id.) The appellate court directed
`the trial court to reinstate Petitioner’s conviction and resentence him if it determined he
`was ineligible for diversion, or if the trial court placed Petitioner on diversion but he did
`not successfully complete diversion. (Id.) During any resentencing proceedings, the trial
`court was directed to consider whether to exercise its discretion to strike either or both of
`the prior serious felony enhancements. (Id.)
`Both Petitioner and the People filed petitions for review in the California Supreme
`Court. (ECF Nos. 13-14; 13-15.) Petitioner’s petition for review was filed for the purpose
`of exhausting state remedies for federal habeas corpus purposes pursuant to California Rule
`of Court 8.508. (ECF No. 13-14 at 6.) In his petition, Petitioner reasserted his arguments
`of prosecutorial error and ineffective of assistance of counsel. (Id. at 13–23.) On
`March 18, 2020, the California Supreme Court summarily denied Petitioner’s petition for
`review. (ECF No. 13-15.) The Supreme Court simultaneously granted the People’s
`petition for review and deferred further action pending consideration and disposition of a
`related issue in People v. Frahs, No. S252220, the lead case before the high court on the
`issue of whether the new mental health diversion law (Cal. Penal Code § 1101.36) applied
`retroactively to defendants whose convictions were not yet final when the new law took
`effect. (Id.) On June 18, 2020, the California Supreme Court issued its opinion in Frahs,
`holding that the provisions giving trial courts discretion to grant pretrial diversion for
`defendants (like Petitioner) with mental health disorders applied retroactively. See People
`v. Frahs, 9 Cal. 5th 618, 624 (2020). Thereafter, on July 29, 2020, the California Supreme
`Court dismissed the People’s petition for review. (ECF No. 13-16.) \
`///
`///
`///
`///
`///
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`The Court of Appeal, in turn, issued remittitur on August 13, 2020, and remanded
`Petitioner’s case back to the trial court.2 On July 14, 2021, on remand, the trial court held
`a hearing to determine whether Petitioner was eligible for mental health diversion and
`concluded he was not eligible. (ECF No. 18-1 at 3.) On September 21, 2021, the trial court
`struck two of Petitioner’s prior strikes and his three prison priors, resentencing him to 18
`years in prison. (Id. at 1–2; see also ECF No. 18-3 at 12–13.) An amended Abstract of
`Judgment was issued the same day and forwarded to the California Department of
`Corrections and Rehabilitation. (Id.) Petitioner did not appeal.
`On July 10, 2022, Petitioner filed the instant Petition for Writ of Habeas Corpus.
`(ECF No. 1.)3 The Petition asserts two grounds for relief: (1) the prosecutor committed
`prosecutorial error during rebuttal closing argument by referring to evidence outside of the
`record, and (2) defense counsel provided ineffective assistance in failing to object to the
`prosecutor’s argument. (Id. at 6–7.) On January 12, 2023, Respondent Brian Cates,
`
`
`
`The Court takes judicial notice of the Court of Appeal docket in People v.
`2
`Scott, No. D074334, which indicates the appellate court issued remittitur on August 13,
`2020. See People v. Scott, No. D074334, Appellate Courts Case Information,
`https://appellatecases.courtinfo.ca.gov/search/case/dockets.cfm?dist=41&doc_id=225791
`7&doc_no=D074334&request_token=NiIwLSEmLkw5W1BVSSFdXEtJUDw6UkxbJC
`NeSzlSMCAgCg%3D%3D [https://perma.cc/LX7R-4SVS]. See also Fed. R. Evid. 201(b)
`(“The court may judicially notice a fact that is not subject to reasonable dispute because it:
`(1) is generally known within the trial court’s territorial jurisdiction; or (2) can be
`accurately and readily determined from sources whose accuracy cannot reasonably be
`questioned”); Dawson v. Mahoney, 451 F.3d 550, 551 n.1 (9th Cir. 2006) (taking judicial
`notice of court dockets in state court proceedings). Under California law, remittitur is the
`final step in the appellate process and consists of remitting the certificate of judgment to
`the court below. See Cal. Penal Code § 1265(a); Cal. R. Ct. 8.272.
`3
`The petition was docketed on July 25, 2022. (See ECF No. 1.) Under the
`“mailbox rule,” a federal habeas petition is deemed filed at the moment the prisoner
`delivers it to prison authorities for forwarding to the clerk of the court. Stillman v.
`LaMarque, 319 F.3d 1199, 1201 (9th Cir. 2003). In this case, that was July 10, 2022, when
`Petitioner signed a certification that he handed the petition to prison staff for mailing. (See
`ECF No. 1 at 11–12.)
`
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`Warden of California Correctional Institution, Tehachapi of the California Department of
`Corrections and Rehabilitation (“Respondent”), moved to dismiss the Petition as barred by
`the one-year statute of limitations period set forth in 28 U.S.C. § 2244(d)(1). (ECF No.
`12.) Respondent filed a Notice of Lodgment and Supplemental Notice of Lodgment in
`support of his motion. (ECF Nos. 13, 18.) On July 27, 2023, Judge Huie issued an Order
`Denying Respondent’s Motion to Dismiss. (ECF No. 19.) On September 25, 2023,
`Respondent filed an Answer. (ECF No. 22.) Petitioner did not file a Traverse.4
`B.
`Factual Background
`The Court takes the following underlying statement of facts from the Court of
`Appeal’s opinion in People v. Scott, No. D074334, slip. op. (Cal. Ct. App. Jan. 7, 2020).
`(ECF No. 13-13.)5
`A. The People’s evidence
`
`One summer afternoon in 2017, the victim, who was homeless, was at
`a park in City Heights. The victim was seated on the ground next to several
`other people. On the ground, next to the victim, was a golf club that the victim
`had brought to the park. The victim testified that he brought the golf club to
`the park because he intended to use it to threaten an individual who had been
`“messing with [his] sister.”
`[Petitioner], who also was at the park, walked up to the group and
`approached the victim. [Petitioner] picked up the golf club. Seconds later,
`[Petitioner] swung the club and struck the victim in the head. [Petitioner] then
`swung the club at the victim a second time, striking the victim in the face and
`
`
`
`Petitioner’s Traverse was initially due November 6, 2023. (ECF No. 21.)
`4
`However, the Court’s order setting that deadline was returned as undeliverable on
`September 25, 2023. (ECF No. 23.) On November 16, 2023, the Court received an updated
`address for Petitioner and reset the deadline to file a Traverse to no later than
`December 26, 2023. (ECF No. 24.) No further filings have been submitted.
`5
`A state court’s findings of fact are presumed to be correct unless the petitioner
`rebuts that presumption with clear and convincing evidence. See 28 U.S.C. § 2254(e)(1);
`Tilcock v. Budge, 538 F.3d 1138, 1141 (9th Cir. 2008). Here, Petitioner has not attempted
`to overcome the presumption with respect to the underlying events.
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`on his arms. The victim had not said or done anything to [Petitioner] prior to
`being hit.
`A security guard at a recreation center located in the park saw
`[Petitioner] strike the victim with the golf club. The security guard called 911.
`After striking the victim, [Petitioner] was “ranting and raving” and appeared
`to be angry and upset. The guard did not see the victim acting aggressively
`either before or after being struck with the club. Police arrived at the scene
`minutes later and detained [Petitioner].
`Surveillance video of the incident was shown to the jury.
`B.
`The defense
`[Petitioner’s] former girlfriend, Maria Perez, testified that she was with
`[Petitioner] at the park on the day of the incident. [Petitioner] went near the
`restrooms. While [Petitioner] was near the restrooms, several people,
`including the victim, directed racial epithets at [Petitioner]. Perez saw two
`people throw punches at [Petitioner].
`[Petitioner] testified that he was at the park on the day of the charged
`offenses and that he went to use the restroom at the park. As he approached
`the restroom, he was confronted by several men, including the victim.
`According to [Petitioner], the victim swung his fist at [Petitioner], who backed
`away quickly. Another man with a tattoo indicating his affinity for white
`supremacy asked [Petitioner], “What’s up now, motherfucker?” [Petitioner]
`backed out of the bathroom.
`A few minutes later, [Petitioner] approached the men with whom he
`had the encounter by the restroom. The men continued to insult [Petitioner].
`According to [Petitioner], as he walked by, someone said, “Get his ass now.”
`[Petitioner] thought that the victim was going to grab the golf club and hit
`[Petitioner] with it. Fearing an attack, [Petitioner] grabbed the club and struck
`the victim with the club.
`(ECF No. 13-13 at 4–5 (footnote omitted).)
`///
`///
`///
`///
`///
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`II. LEGAL STANDARD
`
`Under the Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”), a
`federal court may only grant a habeas corpus petition on behalf of a person in state custody
`if the adjudication of the claim on the merits in State court proceedings resulted in a
`decision that (1) “was contrary to, or involved an unreasonable application of, clearly
`established Federal law, as determined by the Supreme Court of the United States[]” or (2)
`“was based on an unreasonable determination of the facts in light of the evidence presented
`in the State court proceeding.” 28 U.S.C. § 2254(d)(1)–(2); see also Lockyer v. Andrade,
`538 U.S. 63, 71–72 (2003) (“‘[C]learly established Federal law’ under § 2254(d)(1) is the
`governing legal principle or principles set forth by the Supreme Court at the time the state
`court renders its decision.”) (citing Williams v. Taylor, 529 U.S. 362, 405, 413 (2000)).
`
`A state court’s decision may be “contrary to” clearly established Supreme Court
`precedent (1) “if the state court applies a rule that contradicts the governing law set forth
`in [the Supreme Court’s] cases” or (2) “if the state court confronts a set of facts that are
`materially indistinguishable from a decision of [the Supreme] Court and nevertheless
`arrives at a result different from [the Supreme Court’s] precedent.” Williams, 529 U.S. at
`405–06. A state court decision may involve an “unreasonable application” of clearly
`established federal law “if the state court identifies the correct governing legal rule from
`[the Supreme] Court’s cases but unreasonably applies it to the facts of the particular state
`prisoner’s case.” Id. at 407. In order to satisfy § 2254(d)(2), the factual findings relied
`upon by the state court must be objectively unreasonable in light of the evidence presented
`in the state court proceeding. Miller-El v. Cockrell, 537 U.S. 322, 340 (2003).
`III. DISCUSSION
`
`A. Claim 1: Prosecutorial Misconduct
`
`1.
`Parties’ Arguments
`In Claim 1, Petitioner argues that the prosecutor committed prosecutorial
`misconduct during her closing argument by referring to facts outside the record. (ECF No.
`1 at 6.) Petitioner argues that, in doing so, the prosecutor undermined Petitioner’s
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`credibility, thereby tainting the jury’s deliberations pertaining to Petitioner’s self-defense
`claim. (Id.)
`In his Answer, Respondent argues that Petitioner’s claim of prosecutorial
`misconduct is procedurally barred by California’s contemporaneous objection rule, i.e.,
`defense counsel’s failure to object at trial, and that Petitioner has failed to show cause or
`prejudice to excuse the procedural bar. (ECF No. 22-1 at 7, 12–19.)
`
`2. Relevant Facts
`During closing argument, defense counsel argued that Petitioner was entitled to
`stand his ground and use self-defense. (ECF No. 13-7 at 201.) Defense counsel argued:
`
`The fact that [Petitioner] didn’t, you know, leave the park after this
`happened and was cooperative with the police is also circumstantial evidence
`that he was using self-defense.
`I mean, if he had really just randomly, or purposefully, decided that he
`was going to take out [the victim], then why would he stay around? Everyone
`knows there’s a police station directly across the street. It’s only going to take
`[a] minute or two for them to respond. If you actually are swinging this club
`maniacally at someone to injure them and you have no legal excuse for doing
`so, you’re not going to stick around and wait for the police to come. You’re
`going to take off.
`That’s not what [Petitioner] did. Again, that’s circumstantial evidence
`that he was acting in self-defense.
`(Id. at 202.)
`During her rebuttal closing argument, the prosecutor responded to defense counsel’s
`argument:
`
`[] You know, and Counsel was getting up here and saying, “Well, yeah,
`he stayed at the park so that shows he knew it was self-defense.” No.
`Also look at—first of all, people do that all the time. That’s how the
`cops catch people.
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`Beyond that, what—how reasonable is the evidence with his testimony?
`That he’s claiming that he is so scared that they’re going to kill him—look at
`his body language. Is he acting like someone that’s scared?
`Is it reasonable for someone who was truly threatened, who is truly
`fearful for their life, to just hang out? That’s not reasonable. That’s not
`reasonable because he was not in danger. He was not being threatened. His
`behavior is inconsistent with someone who is fearful for their life.
`
`(Id. at 218–19 (emphasis added).)
`
`
`3.
`Court of Appeal Decision
`Federal courts, on habeas review, “look through unexplained state court decisions
`leaving, in effect, the denial of post-conviction relief to the last reasoned state court
`decision to address the claim at issue.” Medley v. Runnels, 506 F.3d 857, 862 (9th Cir.
`2007) (citing Ylst v. Nunnemaker, 501 U.S. 797, 804–06 (1991)). In this case, the Court of
`Appeal provided the last reasoned decision on the merits of Petitioner’s claims. (See ECF
`No. 13-13.) In its decision, the Court of Appeal analyzed Petitioner’s claim of
`prosecutorial error as follows:
`
`[Petitioner] contends that the italicized portion of the prosecutor’s
`rebuttal argument quoted [above] constituted prosecutorial error because there
`was no evidence in the record supporting the prosecutor’s statements.
`a.
`
`Substantive law
`“The use of deceptive or reprehensible methods to persuade the jury
`constitutes [prosecutorial] misconduct.” [Footnote omitted.] (People v.
`Sanchez (2016) 63 Cal. 4th 411, 475.) “‘“A prosecutor’s misconduct violates
`the Fourteenth Amendment to the United States Constitution when it ‘infects
`the trial with such unfairness as to make the conviction a denial of due
`process.’ [Citations.] In other words, the misconduct must be ‘of sufficient
`significance to result in the denial of the defendant’s right to a fair trial.’
`[Citation.] A prosecutor’s misconduct that does not render a trial
`fundamentally unfair nevertheless violates California law if it involves ‘the
`use of deceptive or reprehensible methods to attempt to persuade either the
`court or the jury.’”’” (People v. Covarrubias (2016) 1 Cal. 5th 838, 894.)
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`“‘“[S]tatements of facts not in evidence by the prosecuting attorney in
`his argument to the jury constitute misconduct.”’” (People v. Rivera (2019)
`7 Cal. 5th 306, 382 (Rivera).)
`b.
`
`Forfeiture
`In People v. Forrest (2017) 7 Cal. App. 5th 1074, 1081, the Court of
`Appeal discussed well-established law regarding what a defendant must do in
`order to preserve a claim of prosecutorial error for appellate review:
`“To preserve a misconduct claim for review on appeal, “‘a
`defendant must make a timely and specific objection and ask the
`trial court to admonish the jury to disregard the improper
`argument.”’ The underlying purpose of this requirement is to
`“‘“encourage a defendant to bring errors to the attention of the
`trial court, so that they may be corrected or avoided and a fair
`trial had . . . .”’” ‘The objection requirement is necessary in
`criminal cases because a “contrary rule would deprive the People
`of the opportunity to cure the defect at trial and would “permit
`the defendant to gamble on an acquittal at his trial secure in the
`knowledge that a conviction would be reversed on appeal.”’”
`A claim of prosecutorial error is reviewable on appeal notwithstanding
`the lack of a timely objection if an admonition would not have cured the harm
`resulting from the prosecutor’s remarks. (See, e.g., People v. Cunningham
`(2001) 25 Cal. 4th at pp. 1000–1001.)
`c.
`Application
`Defense counsel made no objection at trial to the portion of the
`prosecutor’s rebuttal argument that [Petitioner] challenges on appeal, and
`[Petitioner] does not contend on appeal that the asserted prosecutorial error
`could not have been cured by an admonition.
`[Petitioner] requests that we exercise our discretion to consider his
`unpreserved claim because his contention is “important” and provides “a
`textbook case” of misconduct. He also argues that we should review his
`unpreserved claim because he received a lengthy prison sentence under the
`Three Strikes law. Neither of [Petitioner’s] arguments provides a compelling
`basis for excusing [Petitioner’s] forfeiture and we decline to exercise our
`
`
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`discretion to consider [Petitioner’s] claim on appeal.6 However, we address
`below [Petitioner’s] related claim that his counsel rendered ineffective
`assistance in failing to object to the prosecutor’s rebuttal closing argument.
`
`(ECF No. 13-13 at 7–9.)
`
`
`4.
`Analysis
`
`
`i.
`Procedural Bar
`
`a.
`Legal Standard
`Federal courts “will not consider an issue of federal law on direct review from a
`judgment of a state court if that judgment rests on a state-law ground that is both
`‘independent’ of the merits of the federal claim and an ‘adequate’ basis for the court’s
`decision.” Harris v. Reed, 489 U.S. 255, 260 (1989) (quoting Fox Film Corp. v. Muller,
`296 U.S. 207, 210 (1935)); see also Wainwright v. Sykes, 433 U.S. 72, 81 (1977) (“As to
`the role of adequate and independent state grounds, it is a well-established principle of
`federalism that a state decision resting on an adequate foundation of state substantive law
`is immune from review in the federal courts.”). The state holds the burden of proving the
`existence of an independent and adequate state procedural ground. See Bennett v. Mueller,
`322 F.3d 573, 585–86 (9th Cir. 2003). Once the state has adequately pled the existence of
`an independent and adequate state procedural ground as an affirmative defense, the burden
`shifts to the petitioner to assert “specific factual allegations that demonstrate the
`inadequacy of the state procedure, including citation to authority demonstrating
`inconsistent application of the rule.” Id. at 586. However, the ultimate burden of proving
`procedural default belongs to the state. Id.
`///
`
`
`
`[footnote in original] If we were to exercise our discretion to consider
`6
`[Petitioner’s] claim, we would conclude that the prosecutorial error of which [Petitioner]
`complains was harmless, for the reasons outlined in connection with our rejection of
`[Petitioner’s] related ineffective assistance claim.
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`“For a state procedural rule to be ‘independent,’ the state law basis for the decision
`must not be interwoven with federal law.” La Crosse v. Kernan, 244 F.3d 702, 704 (9th
`Cir. 2001) (citation omitted). “A state law ground is so interwoven if ‘the state has made
`application of the procedural bar depend on an antecedent ruling on federal law [such as]
`the determination of whether federal constitutional error has been committed.’” Id.
`(quoting Park v. California, 202 F.3d 1146, 1152 (9th Cir. 2000)). For a state procedural
`rule to be adequate, it “must have been ‘firmly established and regularly followed’ by the
`time as of which it is to be applied.” Ford v. Georgia, 498 U.S. 411, 424 (1991) (quoting
`James v. Kentucky, 466 U.S. 341, 348–49 (1984)); see also Fields v. Calderon, 125 F.3d
`757, 760 (9th Cir. 1997). If a federal court concludes that an asserted state procedural bar
`was not an independent and adequate ground for the state court decision, the federal court
`must consider the claim on the merits; if the state court never reached the merits of the
`claim, the federal court reviews the claim de novo. Pirtle v. Morgan, 313 F.3d 1160, 1167–
`68 (9th Cir. 2002).
`Where a state petitioner has defaulted on federal claims in state court pursuant to an
`independent and adequate state procedural rule, federal habeas review of the claims is
`barred unless the petitioner can show cause for the default and actual prejudice because of
`the alleged violation of federal law. United States v. Frady, 456 U.S. 152, 167–68 (1982)
`(citing Davis v. United States, 411 U.S. 233 (1973)) (“[T]o obtain collateral relief based on
`trial errors to which no contemporaneous objection was made, a convicted defendant must
`show both (1) ‘cause’ excusing his double procedural default, and (2) ‘actual prejudice’
`resulting from the errors of which he complains.”); see also Sykes, 433 U.S. at 84.
`Cause “must be something external to the petitioner.” Coleman v. Thompson, 501
`U.S. 722, 753 (1991), holding modified by Martinez v. Ryan, 566 U.S. 1 (2012). “[I]f the
`procedural default is the result of ineffective assistance of counsel, the Sixth Amendment
`itself requires that responsibility for the default be imputed to the State,” thus establishing
`cause to excuse the default. Id. (quoting Murray v. Carrier, 477 U.S. 478, 488 (1986));
`see also Loveland v. Hatcher, 231 F.3d 640, 644 (9th Cir. 2000) (“The lack of effective
`
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`assistance of counsel, as provided for by the Sixth Amendment, can be sufficient cause for
`a failure to comply with a state’s procedural bar rule.”). “[I]t is not the gravity of the
`attorney’s error that matters, but that it constitutes a violation of petitioner’s right to
`counsel, so that the error must be seen as an external factor . . . .” Id. at 754.
`To establish cause based on ineffective assistance of counsel, a petitioner must show
`that counsel “made errors so serious that counsel was not functioning as the ‘counsel’
`guaranteed the defendant by the Sixth Amendment . . . and the deficient performance
`prejudiced the defense.” Strickland v. Washington, 466 U.S. 668, 687 (1984). Regarding
`a counsel’s failure to object during closing argument, the Ninth Circuit has indicated that
`“[b]ecause many lawyers refrain from objecting during opening statement and closing
`argument, absent egregious misstatements, the failure to object during closing argument
`and opening statement is within the ‘wide range’ of permissible professional legal
`conduct.” Cunningham v. Wong, 704 F.3d 1143, 1159 (9th Cir. 2013) (quoting United
`States v. Necoechea, 986 F.2d 1273, 1281 (9th Cir. 1993)).
`To show “actual prejudice,” a petitioner must show “not merely that the errors at his
`trial created a possibility of prejudice, but that they worked to his actual and substantial
`disadvantage, infecting his entire trial with error of constitutional dimensions.” Frady, 456
`U.S. at 170 (emphasis in original); see also Fauber v. Davis, 43 F.4th 987, 1003 (9th Cir.
`2022).
`A petitioner may also overcome the procedural bar by demonstrating that “failure to
`consider the claims will result in a fundamental miscarriage of justice.” Coleman, 501 U.S.
`at 750; see also Murray, 477 U.S. at 496. A “fundamental miscarriage of justice” occurs
`when “a constitutional violation has probably resulted in the conviction of one who is
`actually innocent.” Murray, 477 U.S. at 496; see also Schlup v. Delo, 513 U.S. 298, 321
`(1995) (stating that Murray “explicitly tied the miscarriage of justice exception to the
`petitioner’s innocence”).
`///
`///
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`Analysis
`b.
`
`Respondent argues that Petitioner’s prosecutorial misconduct claim is procedurally
`barred by California’s contemporaneous objection rule. (ECF No. 22-1 at 12–14.) As the
`Court of Appeal stated, “[t]o preserve a misconduct claim for review on appeal, a defendant
`must make a timely and specific objection and ask the trial court to admonish the jury to
`disregard the improper argument.” (ECF No. 13-3 at 8 (quoting People v. Forrest, 7 Cal.
`App. 5th 1074, 1081 (2017) (internal quotation marks omitted).) Because defense counsel
`did not object at the time of the alleged prosecutorial misconduct during trial, the court
`concluded Petitioner’s claims were forfeited. (Id. at 2, 9.)
`The Ninth Circuit has recognized California’s contemporaneous objection rule as an
`independent and adequate basis for denial of a petition for habeas corpus, thus precluding
`federal review of such a claim. See Inthavong v. Lamarque, 420 F.3d 1055, 1058 (9th Cir.
`2005) (finding claim was procedurally barred from habeas review where state court found
`that petitioner failed to object at trial); Paulino v. Castro, 371 F.3d 1083, 1092–93 (9th Cir.
`2004) (finding claim procedurally defaulted based on California’s contemporaneous
`objection rule). Thus, Respondent has satisfied his initial burden of pleading the existence
`of an independent and adequate state procedural ground. Bennett, 322 F.3d at 586. The
`burden then shifts to Petitioner to “place [Respondent’s affirmative defense] in issue . . .
`by asserting factual allegations that demonstrate the inadequacy of the state procedure,
`including . . . inconsistent application of the rule.” Id.; see also King v. LaMarque, 464
`F.3d 963, 966–67 (9th Cir. 2006) (shifting the burden to the petitioner after the state
`satisfied its burden of pleading the existence of an independent and adequate state
`procedural ground).
`Petitioner has failed to do so here. (See generally ECF No. 1.) In his Petition,
`Petitioner raises no specific factual allegations demonstrating the inadequacy of the state
`procedure and provides no citation to authority demonstrating inconsistent application of
`the contemporaneo