Meister v. Davis

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF IDAHO DAVID JOSEPH MEISTER, Case No. 1:19-cv-00173-CWD Petitioner, MEMORANDUM DECISION AND v. ORDER AL RAMIREZ, Respondent. Pending before the Court is a Petition for Writ of Habeas Corpus filed by Idaho prisoner David Joseph Meister (“Petitioner”), challenging Petitioner’s state court convictions of first-degree murder and conspiracy to commit first-degree murder. Dkt. 1. Respondent has filed a Motion for Partial Summary Dismissal, arguing that Claims 1, 2, 7 (in part), and 8(a) are procedurally defaulted without legal excuse. Dkt. 18. The Motion is now ripe for adjudication. The Court takes judicial notice of the records from Petitioner’s state court proceedings, which have been lodged by Respondent. See Dkt. 17; Fed. R. Evid. 201(b); Dawson v Mahoney, 451 F.3d 550 , 551 n.1 (9th Cir. 2006). The parties have consented to the jurisdiction of a United States Magistrate Judge to conduct all proceedings in this case in accordance with 28 U.S.C. § 636 (c) and Federal Rule of Civil Procedure 73. Dkt. 7. Having carefully reviewed the record, including the state court record, the Court finds that oral argument is unnecessary. See D. Idaho L. Civ. R. 7.1(d). Accordingly, the Court will enter the following Order granting the Motion and dismissing, with prejudice, Claims 1, 2, 7 (in part), and 8(a). BACKGROUND The facts underlying Petitioner’s conviction are set forth clearly and accurately in State v. Meister, Docket No. 39807 (Idaho Ct. App. Mar. 4, 2014) (unpublished) (appeal of convictions after retrial), and Meister v. State, Docket No. 44322 (Idaho Ct. App. Dec. 24, 2018) (unpublished) (post-conviction appeal), which are contained in the record at State’s Lodgings D-5 and F-4, respectively. The facts will not be repeated here except as necessary to explain the Court’s decision. In a jury trial in the Second Judicial District Court in Latah County, Idaho, Petitioner was charged with one count of first-degree murder and one count of conspiracy to commit first-degree murder. Petitioner confessed to the crime and told police that the victim’s boyfriend hired Petitioner to kill her.1 After an evidentiary hearing, the trial court denied Petitioner’s motion to suppress his confession, concluding that it was not coerced. State’s Lodging C-5 at 857–62. Petitioner testified at trial that his confession was false and coerced. The jury convicted Petitioner on both charges.2 1 Though the interrogation lasted over four hours, only Petitioner’s “final repetition of his confession” was recorded. State’s Lodging B-4 at 2. 2 The judgment challenged by Petitioner in this matter is the judgment of conviction entered after Petitioner’s second trial. The Idaho Supreme Court vacated the judgment following the first trial, finding error in the trial court’s exclusion of certain alternate perpetrator evidence. State v. Meister, 220 P.3d 1055, 1059 (Idaho 2009). On direct appeal, Petitioner argued that the trial court abused its discretion, under Idaho Rule of Evidence 704, by limiting the testimony of Dr. Ofshe, Petitioner’s expert witness on police interrogation techniques. State’s Lodging D-2, D-4. The trial court had permitted Dr. Ofshe to testify about interrogation techniques and false confessions in general, but it did not permit Dr. Ofshe to testify about the techniques used in Petitioner’s interrogation or to opine whether Petitioner’s confession was true or false. State’s Lodging C-8 at 1588–92. The Idaho Court of Appeals affirmed. Without addressing whether the trial court erred by limiting Dr. Ofshe’s testimony, the court concluded that any such error was harmless beyond a reasonable doubt. State’s Lodging D-5 at 7. The Idaho Supreme Court denied review. State’s Lodging D-8. Petitioner filed a post-conviction petition asserting 46 claims. State’s Lodging E16 at 3511–28. The state district court dismissed the petition. State’s Lodging E-21 at 4457–73. On appeal, Petitioner raised three claims of ineffective assistance of direct appeal counsel, one of which alleged that appellate counsel should have “federalized” Petitioner’s Rule 704 claim by asserting it as a violation of Petitioner’s right to present a defense. State’s Lodging F-1 at 7–9. Petitioner also raised numerous claims of ineffective assistance of trial counsel, as well as a claim that the jury room was not properly insulated from sound. Id. at 10–54. In the instant federal habeas corpus petition, Petitioner asserts eight claims. Claims 1 and 2 assert that the trial court’s limitation of Dr. Ofshe’s testimony violated Petitioner’s right to due process, right to present a defense, and right to a jury trial. Dkt. 1, at 4–5. The Petition also asserts that Petitioner’s trial counsel rendered ineffective assistance in failing to present evidence that Petitioner’s confession could not be true (Claim 3), in failing to present evidence of Petitioner’s alibi (Claim 4), in introducing evidence that was prejudicial to Petitioner (Claim 5), and in failing to object to prosecutorial misconduct (Claim 6). Id. at 6–9. Claim 7 alleges cumulative error arising from the violations set forth in Claims 1 through 6. Id. at 10. And Claim 8 alleges that (a) Petitioner’s right to due process was violated because the jury room was not insulated from sound, and (b) Petitioner’s counsel rendered ineffective assistance in failing to object on that basis. Id. at 11. The Court previously reviewed the Petition and allowed Petitioner to proceed on his claims to the extent those claims “(1) are cognizable in a federal habeas corpus action, (2) were timely filed in this Court, and (3) were either properly exhausted in state court or subject to a legal excuse for any failure to exhaust in a proper manner.” Dkt. 8 at 2–3. Respondent now argues that Claims 1, 2, 7 (in part), and 8(a) are subject to dismissal as procedurally defaulted. For the reasons that follow, the Court agrees. DISCUSSION 1. Standard of Law Governing Summary Dismissal The Rules Governing § 2254 Cases (“Habeas Rules”) authorize the Court to summarily dismiss a petition for writ of habeas corpus when “it plainly appears from the face of the petition and any attached exhibits,” as well as those records subject to judicial notice, “that the petitioner is not entitled to relief in the district court.” Habeas Rule 4; see Fed. R. Evid. 201(b); Dawson, 451 F.3d at 551 n.1. Where appropriate, a respondent may file a motion for summary dismissal, rather than an answer. White v. Lewis, 874 F.2d 599, 602 (9th Cir. 1989). 2. Procedural Default Standards of Law A habeas petitioner must exhaust his or her remedies in the state courts before a federal court can grant relief on constitutional claims. O’Sullivan v. Boerckel, 526 U.S. 838, 842 (1999). To do so, the petitioner must invoke one complete round of the state’s established appellate review process, fairly presenting all constitutional claims to the state courts so that they have a full and fair opportunity to correct alleged constitutional errors at each level of appellate review. Id. at 845 . In a state that has the possibility of discretionary review in the highest appellate court, like Idaho, the petitioner must have presented all of his federal claims at least in a petition seeking review before that court. Id. at 847 . “Fair presentation” requires a petitioner to describe both the operative facts and the legal theories upon which the federal claim is based. Gray v. Netherland, 518 U.S. 152, 162-63 (1996). The mere similarity between a federal claim and a state law claim, without more, does not satisfy the requirement of fair presentation. See Duncan v. Henry, 513 U.S. 364, 365-66 (1995) (per curiam). General references in state court to “broad constitutional principles, such as due process, equal protection, [or] the right to a fair trial,” are likewise insufficient. See Hiivala v. Wood, 195 F.3d 1098, 1106 (9th Cir. 1999). For proper exhaustion, a petitioner must bring his federal claim before the state court by “explicitly” citing the federal legal basis for his claim. Lyons v. Crawford, 232 F.3d 666, 669 (9th Cir. 2000), as amended, 247 F.3d 904 (9th Cir. 2001). When a habeas petitioner has not fairly presented a constitutional claim to the highest state court, and the state court would now refuse to consider it because of the state’s procedural rules, the claim is said to be procedurally defaulted. Gray, 518 U.S. at 161-62 . Procedurally defaulted claims include the following: (1) when a petitioner has completely failed to raise a claim before the Idaho courts; (2) when a petitioner has raised a claim, but has failed to fully and fairly present it as a federal claim to the Idaho courts; and (3) when the Idaho courts have rejected a claim on an adequate and independent state procedural ground. Id.; Baldwin v. Reese, 541 U.S. 27, 32 (2004); Coleman v. Thompson, 501 U.S. 722, 750 (1991). “To qualify as an adequate procedural ground, a state rule must be firmly established and regularly followed.” Walker v. Martin, 562 U.S. 307 , 316 (2011) (internal quotation marks omitted). That is, the state procedural bar must be one that is “‘clear, consistently applied, and well-established at the time of the petitioner’s purported default.’” Martinez v. Klauser, 266 F.3d 1091 , 1093–94 (9th Cir. 2001) (quoting Wells v. Maass, 28 F.3d 1005, 1010 (9th Cir. 1994)). A state procedural bar can be considered adequate even if it is a discretionary rule, and even though “the appropriate exercise of discretion may permit consideration of a federal claim in some cases but not others.” Beard v. Kindler, 558 U.S. 53, 61 (2009). A state rule’s “use of an imprecise standard … is no justification for depriving a rule’s language of any meaning.” Walker, 562 U.S. at 318 (internal quotation marks and alteration omitted). A state procedural bar is “independent” of federal law if it does not rest on, and if it is not interwoven with, federal grounds. Bennett v. Mueller, 322 F.3d 573, 581 (9th Cir. 2003). A rule will not be deemed independent of federal law “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. (internal quotation marks and alteration omitted); see also Ake v. Oklahoma, 470 U.S. 68, 75 (1985) (stating that “when resolution of the state procedural law question depends on a federal constitutional ruling, the state-law prong of the court’s holding is not independent of federal law, and our jurisdiction is not precluded,” and holding that a state waiver rule was not independent because, “[b]efore applying the waiver doctrine to a constitutional question, the state court must rule, either explicitly or implicitly, on the merits of the constitutional question”). Once the state sufficiently pleads the existence of an adequate and independent state procedural bar, the burden shifts to the petitioner to establish that the rule is not adequate or is dependent on federal law. “The petitioner may satisfy this burden by asserting specific factual allegations that demonstrate the inadequacy of the state procedure, including citation to authority demonstrating inconsistent application of the rule.” Bennett, 322 F.3d at 586 . The ultimate burden to show that the procedural rule is adequate and independent, however, remains with the state. 3. Claims 1, 2, 7 (in part), and 8(a) Are Procedurally Defaulted without Legal Excuse A. Claims 1, 2, 7 (in part), and 8(a) Are Procedurally Defaulted i. Claims 1 and 2 were not fairly presented to the state courts On direct appeal, Petitioner argued that the trial court abused its discretion, under Rule 704, by limiting Dr. Ofshe’s testimony. State’s Lodging D-2, D-4. Although that claim is similar to Claims 1 and 2, and arises from the same set of facts, Petitioner presented it only as a state-law claim based on the Idaho Rules of Evidence. The Idaho Court of Appeals addressed and denied the claim as such. Petitioner acknowledges that he did not fairly present Claim 1 on direct appeal. However, Petitioner contends that he did, in fact, raise Claim 2 on direct appeal. Dkt. 19 at 3–4. In his brief in support of his petition for review to the Idaho Supreme Court, Petitioner argued that the Idaho Court of Appeals’ harmlessness determination was in conflict with decisions of both the Idaho Supreme Court and the United States Supreme Court. State’s Lodging D-7 at 12–17. However, the Court finds this argument did not suffice to fairly present Claim 2, for two reasons. First, the underlying claim was still presented as a state-law evidentiary claim in Petitioner’s brief in support of the petition for review. See id. at 17–28. The brief’s citation to United States Supreme Court precedent did not constitute the assertion of a federal claim—it was simply an acknowledgement that the Idaho courts have adopted the federal harmless error standard as applicable to state-law claims of “objected-to error.” Id. at 15. Second, even if Petitioner did raise Claim 2 as a constitutional claim in the petition for review on direct appeal, that claim was procedurally barred. The Idaho Supreme Court does not consider claims made for the first time in a petition for review. Hernandez v. State, 905 P.2d 86, 88 (Idaho 1995) (“We also do not address Hernandez’s claim premised on due process of law presented in support of his petition for review. We look to the initial brief on appeal, before the case was assigned to the Court of Appeals, for the issues presented on appeal.”); see also Waters v. Double L, Inc., 114 Idaho 256, 268 , 755 P.2d 1294, 1306 (Idaho Ct. App. 1987) (“This issue is raised for the first time on rehearing, not having been presented to the district court nor to this Court earlier on appeal. Accordingly, we will not address it now.”) Johnson v. Bekins Moving & Storage Co., 86 Idaho 569, 582 , 389 P.2d 109, 117 (Idaho 1963) (“[A] contention cannot be considered when raised for the first time in a petition for rehearing.”). The Court finds no basis to conclude that this state procedural rule is inadequate or dependent on federal law. Thus, Claims 1 and 2 were not fairly presented on direct appeal. Petitioner attempted to raise Claims 1 and 2, as federal constitutional claims, in his post-conviction petition. However, the Idaho Court of Appeals held, under Idaho law, that its direct appeal decision upholding the trial court’s limitation on Dr. Ofshe’s testimony “precludes resurrection of the issue in a petition for post-conviction relief.” State’s Lodging F-4 at 38–39 (relying on Hall v. State, 885 P.2d 1165, 1168 (Idaho Ct. App. 1994). Petitioner has not established that this state-law procedural ground was not adequate at the time of the state court’s decision, and the rule is not dependent on federal law. Therefore, Claims 1 and 2 are procedurally defaulted. ii. Claim 8(a) was defaulted based on an adequate and independent state procedural ground Petitioner raised Claim 8(a)—that the jury room’s inadequate insulation constituted a federal constitutional violation—in his post-conviction proceedings. However, the Idaho Court of Appeals declined to address the claim. State’s Lodging F-4 at 39–40. The court relied on Idaho Code § 19-4901 (b), which provides that “[a]ny issue which could have been raised on direct appeal, but was not, is forfeited and may not be considered in post-conviction proceedings.” The only exception to this procedural bar is where “the asserted basis for relief raises a substantial doubt about the reliability of the finding of guilt and could not, in the exercise of due diligence, have been presented earlier.” Id. Petitioner has failed to meet his burden of showing that Idaho Code § 19-4901 (b) was not “clear, consistently applied, and well-established” at the time of Petitioner’s default. Martinez v. Klauser, 266 F.3d at 1093 (internal quotation marks omitted). Nor has Petitioner established that this procedural rule is dependent on federal law. Finally, this Court has already determined that § 19-4901(b) is adequate and independent. Sheahan v. Valdez, No. 1:09-cv-00191, 2010 WL 3893934 , at *3 (D. Idaho Sept. 27, 2010) (unpublished). Therefore, Claim 8(a) is procedurally defaulted based on an adequate and independent state procedural rule. iii. The portion of Claim 7 relying on the errors alleged in Claims 1 and 2 is procedurally defaulted Claim 7 asserts cumulative error based on the violations asserted in Claims 1 through 6. Because Claims 1 and 2 are procedurally defaulted, the portion of Petitioner’s cumulative error claim that relies on those claims is also procedurally defaulted. The facts underlying those claims will not be considered when the Court reviews Claim 7 on the merits. B. Petitioner Has Not Established a Legal Excuse for the Default As explained above, Claims 1, 2, 7 (in part), and 8(a) are procedurally defaulted. However, that conclusion does not end the inquiry. If a petitioner’s claim is procedurally defaulted, a federal district court still can hear the merits of the claim, but only if the petitioner meets one of two exceptions: (1) a showing of adequate legal cause for the default and prejudice arising from the default, or (2) a fundamental miscarriage of justice—that is, a showing of actual innocence.3 Murray v. Carrier, 477 U.S. 478, 488 (1986), Schlup v. Delo, 513 U.S. 298, 329 (1995). i. Petitioner has not established cause and prejudice for the default of Claims 1 and 2 Petitioner contends that cause and prejudice exist to excuse the default of Claims 1 and 2—his constitutional claims arising from the trial court’s limitation on Dr. Ofshe’s testimony. Dkt. 19 at 4–28. 3 Neither an assertion of cause and prejudice nor an assertion of actual innocence under Schlup is an independent constitutional claim. Rather, these are federal procedural arguments that, if sufficiently established by a petitioner, allow a federal court to consider the merits of an otherwise procedurallydefaulted constitutional claim. To show “cause” for a procedural default, a petitioner must ordinarily demonstrate that some objective factor external to the defense impeded his or his counsel’s efforts to raise the claim to the state courts or to comply with the state procedural rule at issue. Murray, 477 U.S. at 488 . To show “prejudice,” a petitioner generally bears “the burden of showing not merely that the errors [in his proceeding] constituted a possibility of prejudice, but that they worked to his actual and substantial disadvantage, infecting his entire [proceeding] with errors of constitutional dimension.” United States v. Frady, 456 U.S. 152, 170 (1982). Ineffective assistance of counsel (“IAC”) may constitute cause for a default. For example, the failure on appeal to raise a meritorious claim of trial error—or the failure at trial to preserve a claim for appeal—may render that claim procedurally defaulted. See Edwards v. Carpenter, 529 U.S. 446, 452 (2000) (“[I]n certain circumstances counsel’s ineffectiveness in failing properly to preserve the claim for review in state court will suffice.”). However, for IAC to serve as cause to excuse a default, that IAC claim must itself have been separately presented to the state appellate courts. Id. (“A claim of ineffective assistance ... generally must be presented to the state courts as an independent claim before it may be used to establish cause for a procedural default.”) (internal quotation marks and alteration omitted). In other words, before a federal court can consider ineffective assistance of counsel as cause to excuse the default of an underlying habeas claim, a petitioner generally must have presented that IAC claim in a procedurally proper manner to the state courts, such as in a post-conviction relief petition, including through the level of the Idaho Supreme Court. If the ineffective assistance asserted as cause was not fairly presented to the state courts, a petitioner must show an excuse for that separate default, as well. Id. at 453 (“[A]n ineffective-assistance-of-counsel claim asserted as cause for the procedural default of another claim can itself be procedurally defaulted.”). Petitioner alleges that his direct appeal counsel rendered ineffective assistance by failing to assert Claims 1 and 2 (and 7, in part) as federal constitutional claims and that, therefore, cause and prejudice exist to excuse the default of those claims. The Court disagrees. The Sixth Amendment to the United States Constitution provides that a criminal defendant has a right to the effective assistance of counsel in his defense. The Supreme Court explained the standard for IATC claims in Strickland v. Washington, 466 U.S. 668 (1984). A petitioner asserting ineffective assistance of counsel must show that (1) “counsel made errors so serious that counsel was not functioning as the ‘counsel’ guaranteed the defendant by the Sixth Amendment,” and (2) those errors prejudiced the defendant by “depriv[ing] the defendant of a fair trial, a trial whose result is reliable.” Id. at 687 . A petitioner must establish both deficient performance and prejudice to prove an IAC claim. Id. at 697 . Whether an attorney’s performance was deficient is judged against an objective standard of reasonableness. Id. at 687-88 . A reviewing court’s inquiry into the reasonableness of counsel’s actions must not rely on hindsight: Judicial scrutiny of counsel’s performance must be highly deferential. It is all too tempting for a defendant to secondguess counsel’s assistance after conviction or adverse sentence, and it is all too easy for a court, examining counsel’s defense after it has proved unsuccessful, to conclude that a particular act or omission of counsel was unreasonable. A fair assessment of attorney performance requires that every effort be made to eliminate the distorting effects of hindsight, to reconstruct the circumstances of counsel’s challenged conduct, and to evaluate the conduct from counsel’s perspective at the time. Because of the difficulties inherent in making the evaluation, a court must indulge a strong presumption that counsel’s conduct falls within the wide range of reasonable professional assistance; that is, the defendant must overcome the presumption that, under the circumstances, the challenged action might be considered sound trial strategy. There are countless ways to provide effective assistance in any given case. Even the best criminal defense attorneys would not defend a particular client in the same way. Id. at 689 (internal citations and quotation marks omitted). Strategic decisions, such as the choice of a defense or of which claims to raise on appeal, “are virtually unchallengeable” if “made after thorough investigation of law and facts relevant to plausible options.” Id. at 690 . If a petitioner shows that counsel’s performance was deficient, the next step is the prejudice analysis. “An error by counsel, even if professionally unreasonable, does not warrant setting aside the judgment of a criminal proceeding if the error had no effect on the judgment.” Strickland, 466 U.S. at 691 . To satisfy the prejudice standard, a petitioner “must show that there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different.” Id. at 694 . As the Strickland Court instructed: In making this determination, a court hearing an ineffectiveness claim must consider the totality of the evidence before the judge or jury. Some of the factual findings will have been unaffected by the errors, and factual findings that were affected will have been affected in different ways. Some errors will have had a pervasive effect on the inferences to be drawn from the evidence, altering the entire evidentiary picture, and some will have had an isolated, trivial effect. Moreover, a verdict or conclusion only weakly supported by the record is more likely to have been affected by errors than one with overwhelming record support. Taking the unaffected findings as a given, and taking due account of the effect of the errors on the remaining findings, a court making the prejudice inquiry must ask if the defendant has met the burden of showing that the decision reached would reasonably likely have been different absent the errors. Id. at 695-96 . To constitute Strickland prejudice, “[t]he likelihood of a different result must be substantial, not just conceivable.” Richter, 562 U.S. 86 at 112 . With respect to claims of ineffective assistance of direct appeal counsel, effective legal assistance does not mean that appellate counsel must appeal every question of law or every nonfrivolous issue requested by a criminal defendant. Jones v. Barnes, 463 U.S. 745 , 751–54 (1983). “Nothing in the Constitution” requires “judges to second-guess reasonable professional judgments and impose on appointed counsel a duty to raise every ‘colorable’ claim suggested by a client.” Id. at 754 . “Experienced advocates since time beyond memory have emphasized the importance of winnowing out weaker arguments on appeal and focusing on one central issue if possible, or at most on a few key issues.” Id. at 751-52 . Thus, although it is “possible to bring a Strickland claim based on [appellate] counsel’s failure to raise a particular claim, … it is difficult to demonstrate that counsel was incompetent.” Smith v. Robbins, 528 U.S. 259, 288 (2000). A petitioner can show deficient performance of appellate counsel only when counsel failed to raise a nonfrivolous issue that “was clearly stronger than [the] issues that counsel did present.” Id. Further, to show prejudice with respect to direct appeal counsel’s performance, a petitioner must show that counsel failed to raise an issue obvious from the trial record that probably would have resulted in reversal. See Miller v. Keeney, 882 F.2d 1428 , 1434 n.9 (9th Cir. 1989). If a petitioner does not show that an attorney’s act or omission would probably have resulted in reversal, then he cannot satisfy either prong of Strickland. Id. at 1434 (“Appellate counsel will … frequently remain above an objective standard of competence (prong one) and have caused her client no prejudice (prong two) for the same reason—because she declined to raise a weak issue. Such is the case here.”). In Petitioner’s case, the argument raised by direct appeal counsel—that the trial court’s limitation on Dr. Ofshe’s testimony was inconsistent with the Idaho Rules of Evidence—was stronger than Petitioner’s federal constitutional claims based on that limitation. It is easier to show an evidentiary error than a federal constitutional violation. See Jammal v. Van de Kamp, 926 F.2d 918, 920 (9th Cir. 1991) (“Only if there are no permissible inferences the jury may draw from the evidence can its admission violate due process. Even then, the evidence must be of such quality as necessarily prevents a fair trial.”) (internal quotation marks omitted). Because the issue counsel raised was stronger than the issues that Petitioner contends should have been raised, Petitioner has failed to establish either prong of Strickland.4 See Keeney, 882 F.2d at 1435 . Thus, Petitioner has not shown that the default of Claims 1, 2, and 7 (in part) should be excused. ii. Petitioner has not established actual innocence to excuse the default of Claim 8(a) Petitioner invokes the miscarriage-of-justice exception with respect to Claim 8(a). That exception requires proof that a constitutional violation has probably resulted in the conviction of someone who is actually innocent. Murray v. Carrier, 477 U.S. at 496 . Actual innocence in this context “means factual innocence, not mere legal insufficiency.” Bousley v. United States, 523 U.S. 614, 623 (1998). In asserting actual innocence, a petitioner must “support his allegations of constitutional error with new reliable evidence—whether it be exculpatory scientific evidence, trustworthy eyewitness accounts, or critical physical evidence—that was not presented at trial.” Schlup v. Delo, 513 U.S. 298, 324 (1995). A procedurally defaulted claim may be heard under the miscarriage-of-justice exception only if, “in light of all of the evidence, ‘it is more likely than not that no reasonable juror would have found [the petitioner] guilty beyond a reasonable doubt.’” United States v. Avery, 719 F.3d 1080, 1083 (9th Cir. 2013) (quoting Schlup, 513 U.S. at 327 ). Stated another way, the petitioner 4 The Court rejects Petitioner’s contention that defaulting a federal claim is per se prejudicial under Strickland. See Dkt. 19 at 8. Petitioner’s argument, if accepted, would eliminate entirely the prejudice prong of the cause and prejudice analysis because anytime a claim was defaulted, it would be prejudicial to raising the claim on federal habeas review. Strickland prejudice requires Petitioner to show a reasonable probability that, had appellate counsel raised Claims 1 and 2 as federal violations, rather than only state-law violations, he would have prevailed on appeal. Petitioner has not done so. must show that, but for the constitutional error, every reasonable juror would vote to acquit. Petitioner does not argue that he is factually innocent. Instead, he asks the Court to expand the miscarriage-of-justice exception to cases of “severe due process violation[s]” outside of the actual innocence context. Dkt. 19 at 2. But this Court lacks the authority to do so. “[T]he miscarriage of justice exception is limited to those extraordinary cases where the petitioner asserts his innocence and establishes that the court cannot have confidence in the contrary finding of guilt. A petitioner who asserts only procedural violations without claiming actual innocence fails to meet this standard.” Johnson v. Knowles, 541 F.3d 933, 937 (9th Cir. 2008) (emphasis and internal citation omitted). CONCLUSION For the foregoing reasons, Claims 1, 2, 7 (in part), and 8(a) are subject to dismissal as procedurally defaulted. ORDER IT IS ORDERED: 1. Petitioner’s Motion for Enlargement of Brief (Dkt. 20) is GRANTED. 2. Respondent’s Motion for Extension of Time (Dkt. 21) is GRANTED. 3. Respondent’s Motion for Partial Summary Dismissal (Dkt. 18) is GRANTED. Claims 1, 2, 7 (in part), and 8(a) are DISMISSED with prejudice as set forth above. 4. Respondent must file an answer to the remaining claims—Claims 3, 4, 5, 6, 7 (in part), and 8(b)—-within 60 days of the date of this Order. Petitioner must file a reply (formerly called a traverse), containing a brief rebutting Respondent’s answer and brief, which must be filed and served within 28 days after service of the answer and brief. Respondent has the option of filing a sur-reply within 14 days after service of the reply. At that point, the case will be deemed ready for a final decision. GE DATED: April 21, 2020 wea, J — Seem ax. 2Z9/ Honorable Candy W. Dale <kicpoe> United States Magistrate Judge MEMORANDUM DECISION AND ORDER - 19