Back to Exhibit 7

ARGUMENT

C.  THE HABEAS CORPUS PETITION REGARDING A CONVICTION OCCURING ON MARCH 15^TH, 1994 (02-1226)

1. In its order to denying the defendant’s Habeas Corpus petition in State Court, the Superior Court judge, judge Krug, made a few brief, conclusory, findings on the merits of the petition (without allowing the defendant an evidentiary hearing to prove his claims), then denied the petition. Specifically what judge Krug held in regards to Superior Court case No.FWV-02836 was: (“Petitioner alleges ineffective assistance of counsel. He contends his plea was not voluntary. The petitioner has offered no independent evidence to support his conviction that his 1994 Plea was the result of some misrepresentation by counsel. He also has failed to explain or justify waiting some seven years to complain. In Re. Alvernaz, 2C4924.”), order entered on 12-14-01. See (EXHIBIT: 1, attached).
    
2. In that order judge Krug merely commented that the defendant, at that time, had not explained why he had waited so long to file the Habeas petition. However, he did not SPECIFICALLY cite that as being one of the reasons he denied the Habeas petition. And even though the defendant filed briefs with the State Appeals and Supreme Court explaining why the petition had been filed after so long, and asking for a “good cause” exemption, both the Appeals and Supreme Court affirmed the Superior Court judge’s denial, as written, without comment. See (EXHIBIT: 2 and 3). Thus, because the State Courts did not specifically cite the delay in filing as being a definite reason for denying the Habeas petition, there is no enforceable “time bar” issue, and this court cannot, under the circumstances, deny federal review.
    
3. See Bledsue V. Johnson, 188 F.3d 250, 256 (5^th cir.1999) (“When one reasoned state court decision rejects a federal claim, subsequent unexplained orders upholding the judgment or rejecting the same claim are considered to rest on the same ground as did the reasoned state judgment.”),  citing Coleman V. Thompson, 501 U.S. 722, 804, 111 s.ct.2546 (1991). See also Lambright V. Stewart, 241 F.3d 1201, 1205 (9^th cir.2001) (“To determine whether a state procedural ruling bars federal review, we look to the ‘last reasoned opinion of the claim.’ “) (internal citation omitted). This means that this court must look to Superior Court judge Krug’s order of state Habeas denial in order to determine whether any purported jurisdictional “time bar” was SUFFICIENTLY and “explicitly” invoked. And in the case at bar, it was not. See Contreras V. Rice, 5F. supp. 2d 854, 863 (C.D.cal.1998); Owens V. Ventura County Superior Court, 42 F.supp.2d 993, 997 (C.D.cal.1999) (“[ W]here there has been one reasoned state judgment rejecting a federal claim, Federal Courts are to presume that later unexplained orders upholding that judgment or rejecting the same claim rest upon the SAME ground.”), (internal citations omitted).
    

4. See Lacrosse V. Kernan, supra, 244 F.3d 702, 704 (9^th cir.2001) (“[U]nless the State Court makes CLEAR that it is resting its decision denying relief on an independent and adequate state ground, it is presumed that the state denial was based at least in part upon Federal grounds, and the petitioner may seek relief in Federal Court.’). See also Lambright V. Stewart, 241 F.3d 1201, 1205 (9^th cir.2001) (“The last reasoned opinion on [the defendant’s] ineffective assistance of counsel DID NOT CLEARLY INVOKE a procedural default rule and therefore does not bar federal review. It is well established that ‘a procedural default does not bar consideration of a federal claim on either direct or Habeas review unless the last State Court rendering a judgment in the case clearly and EXPRESSELY (emphasis) states that its judgment rests on a state procedural bar.”). And in the case at hand the States Court(s) have not done that. And the Superior Court judge’s order itself is at best, ambiguous. See Lambright V. Stewart, supra, at 1205: (“Indeed, ‘a procedural default based on an ambiguous order that does not clearly rest on an independent and adequate state ground is not sufficient to preclude Federal Habeas review”.), (internal citation omitted).
    

5. Wherefore, since the State Courts did not “clearly and expressly” invoke a time bar as a definite and express reason for denying the defendant’s 1994 conviction based Habeas petition (Federal case No. 02-1226-PA (PLA)), then this court cannot deny federal review of this said Habeas petition on those said grounds, as no such grounds exist. And further, the defendant had not tried to show “good cause” for the belayed filing of the Habeas petition in State Court in the first instance, because having had absolutely no access to California State Court caselaw at that point, he had had no realistic way of finding out or knowing whether or not California had any specific common law time limits to begin with, and if so, what they were. So the defendant had been left in the horrible position of having to grope around through trial and error before he could finally make sense of how to properly present his claims to the California courts. He did not have the luxury of researching California Habeas law in advance. He had to wait until the Superior Court had already denied defendant’s petition, then use the cases the judge cited in the denial order, as the springboard to find and have other relevant cases mailed in from the internet, before the defendant could finally find California caselaw to support his justification and legitimate reasons for taking 7 years to file this particular Habeas petition.

6. Also at page 5 of her Memorandum, Ms. Beale claims that: “First, the filing of these very petitions while petitioner is still incarcerated in Colorado belies his claim that he had no way to learn how to challenge those convictions.” Id. The defendant finally being able to file his petitions in State Court “belies” nothing. The defendant is incarcerated in the State of Colorado, and anyone with common sense can surmise the fact that the Colorado prison system is not going to spend hundreds of thousand of dollars on California law reporters and California law books on the off chance that maybe 3 or 4 prisoners in the whole 20,000 man prison system might find need to review and have access to California law, annually. It is also a well known fact that court clerk’s are not going to give prisoners legal advice on how to go about challenging illegal convictions either. So the salient fact is that until the defendant was lucky enough to find another prisoner who had family members who were kind enough to download the California post conviction relief statute from the internet and mail it to the defendant in October, 2001, the defendant HAD no access to California law as he has previously stated, and he HAD no realistic means of knowing the proper way to attack his conviction in California, before October, 2001. The assistant A.G.’s comments regarding this issue are deliberately misleading and callous.
    

7. But again, how long it took the defendant to file his state Habeas petition on this case (02-1226) is  irrelevant, since NONE of the three State Courts SPECIFICALLY HELD that the dismissal of the petition was based on any imagined “time bars’ or “limitations periods”. Thus, in such case, the court must grant Federal review. See Thomas V. McCaughtry, 201 F.3d 995, 1000 (7^th cir.2000) (“in order for the state judgment to bar federal Habeas review, the last State Court to render a judgment in the case must have ‘clearly and expressly stated that its judgment rests on a state procedural bar.”) (Internal citations omitted). And even if the State Courts HAD clearly invoked a time bar, it still would not matter, and still would not prevent federal review since the time frames for filing Habeas petitions in California State Courts is “inconsistently” applied. See Johnson V. Mississippi, 108 s.ct.1981, 1987, 486 U.S.578 (1988) (“[A] state procedural ground is not “adequate’ unless the procedural rule is ‘strictly or regularly followed’.”), (internal citations omitted). Thus the court must deny the state’s motion to dismiss Habeas petition no.: 02-1226-PA (PLA), as there are no legally enforceable grounds for dismissal, and review the said petition on its merits.