NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS APR 14 2021
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
TYQUAN KNOX, No. 19-55111
Petitioner-Appellant, D.C. No.
2:16-cv-09481-JAK-SS
v.
RAYMOND MADDEN, Warden, MEMORANDUM*
Respondent-Appellee.
Appeal from the United States District Court
for the Central District of California
John A. Kronstadt, District Judge, Presiding
Submitted April 12, 2021**
Pasadena, California
Before: M. SMITH and IKUTA, Circuit Judges, and VRATIL,*** District Judge.
Petitioner Tyquan Knox (Petitioner) appeals the district court’s denial of his
federal habeas petition. Because the parties are familiar with the facts, we do not
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
***
The Honorable Kathryn H. Vratil, United States District Judge for the
District of Kansas, sitting by designation.
recount them here, except as necessary to provide context to our ruling. We have
jurisdiction under 28 U.S.C. §§ 2253 and 1291. We review de novo a district court’s
denial of a habeas petition, Murray v. Schriro, 882 F.3d 778, 801 (9th Cir. 2018),
and we can affirm on any ground supported by the record, even if it differs from the
district court’s rationale, Ybarra v. McDaniel, 656 F.3d 984, 989 (9th Cir. 2011)
(citations omitted).
The Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA) governs
our review. See Woodford v. Garceau, 538 U.S. 202, 210 (2003). Under AEDPA,
we cannot grant habeas relief unless the state court proceedings resulted in a decision
that was (1) “contrary to, or involved an unreasonable application of, clearly
established Federal law, as determined by the Supreme Court of the United States;”
or (2) “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).
The district court exercised its discretion to address and deny the petition on
the merits without determining whether Petitioner’s claims were procedurally
defaulted. We issued a certificate of appealability regarding whether the state trial
court erred by allowing in-court identification testimony by Dechanne Lane (Lane),
in violation of Petitioner’s right to due process, including whether that issue is
procedurally defaulted. See 28 U.S.C. § 2253(c)(3).
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Petitioner argues the district court erred by denying his petition and by
concluding the state trial court did not violate his constitutional right to due process
by allowing Lane’s in-court identification testimony at Petitioner’s preliminary
hearing. Respondent-Appellee Raymond Madden (Respondent) argues that
Petitioner’s claim is procedurally defaulted, and, in the alternative, that the district
court properly denied the petition on the merits.
Due to comity and federalism concerns, and the requirement that States have
the first opportunity to correct their own mistakes, federal habeas courts generally
will not review a state court’s denial of a state prisoner’s federal constitutional claim
if the state court’s decision “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, 729–730 (1991) (citations omitted). A state procedural bar is independent
of federal law unless it rests primarily on, or is interwoven with, federal law. See id.
at 734–35. A state procedural bar is adequate if it is firmly established and regularly
followed at the time it is applied. Ford v. Georgia, 498 U.S. 411, 423–24 (1991).
The California Court of Appeal denied Petitioner’s habeas claim regarding
Lane’s in-court identification by citing to In re Dixon, 41 Cal. 2d 756 (1953), which
signifies the claim was procedurally barred because Petitioner failed to raise it on
direct appeal. Under California law, “habeas corpus may not be used instead of an
appeal to review determinations of fact made upon conflicting evidence after a fair
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trial.” In re Dixon, 41 Cal. 2d at 760. This rule is colloquially referred to as
California’s “Dixon bar.”
In Johnson v. Lee, the Supreme Court held that California’s Dixon bar was
both firmly established and regularly followed such that it can serve as an “adequate
and independent ground for denying a federal habeas petition . . . .” 136 S. Ct. 1802,
1806–07 (2016) (quoting Walker v. Martin, 562 U.S. 307, 311 (2011)). The Supreme
Court explained that the Dixon bar is “firmly established” because the California
Supreme Court warned defendants for decades that, “absent ‘special circumstances,’
habeas ‘will not lie where the claimed errors could have been, but were not, raised
upon a timely appeal from a judgment of conviction.’” Id. at 1805 (quoting Dixon,
41 Cal. 2d at 759). In addition, the Court explained that the California Supreme Court
eliminated any arguable ambiguity surrounding this bar by reaffirming Dixon in In
re Harris, 5 Cal. 4th 813 (1993) and In re Robbins, 18 Cal. 4th 770 (1998). See
Johnson, 136 S. Ct. at 1805.
Petitioner contends he has sufficient cause and prejudice to overcome the
Dixon bar because his failure to raise his due process claim on direct appeal was
allegedly caused by his appellate counsel’s constitutionally ineffective
representation. See Coleman, 501 U.S. at 752–53 (recognizing “cause and prejudice”
to overcome a state procedural bar may exist when that bar was imposed as a result
of ineffective assistance of counsel during a proceeding when the petitioner had a
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right to counsel). However, Petitioner failed to exhaust his ineffective assistance of
appellate counsel claim in state court, so it cannot serve as the basis to overcome the
Dixon bar. See Murray v. Carrier, 477 U.S. 478, 485–90 (1986).
To exhaust his state remedies, Petitioner must have given the California courts
a “fair opportunity” to act on his claim of ineffective assistance of appellate counsel
before presenting it in federal court. See O’Sullivan v. Boerckel, 526 U.S. 838, 844
(1999). To be provided a fair opportunity, a state court needs to be apprised that a
petitioner is making a claim under the United States Constitution, and the petitioner
must describe “both the operative facts and the federal legal theory on which his
claim is based so that the state courts [could] have a ‘fair opportunity’ to apply
controlling legal principles to the facts bearing upon his constitutional claim.”
Castillo v. McFadden, 399 F.3d 993, 999 (9th Cir. 2005) (quoting Kelly v. Small,
315 F.3d 1063, 1066 (9th Cir. 2003)); see Anderson v. Harless, 459 U.S. 4, 6 (1982)
(per curiam).
However, “[e]xhaustion demands more than drive-by citation, detached from
any articulation of an underlying federal legal theory.” Castillo, 399 F.3d at 1003.
The Supreme Court recognized that “[f]or purposes of exhausting state remedies, a
claim for relief in habeas corpus must include reference to a specific federal
constitutional guarantee, as well as a statement of the facts that entitle the petitioner
to relief.” Gray v. Netherland, 518 U.S. 152, 162–63 (1996) (citation omitted).
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A petitioner does not satisfy the exhaustion requirement by presenting the state court
only with the facts necessary to state a claim for relief. Id. at 163. Nor is it enough
to make a general appeal to a constitutional guarantee as broad as due process to
present the substance of such a claim to a state court. Id.
Petitioner’s passing references in his state-court proceedings to ineffective
assistance of appellate counsel are insufficient to exhaust this claim. First, Petitioner
does not contend he raised appellate counsel’s performance in his petition to the Los
Angeles County Superior Court nor California Court of Appeal. Second, Petitioner
does not contend he ever alleged the specific claim he argues here—that appellate
counsel was constitutionally ineffective for failing to raise his due process claim
related to Lane’s allegedly tainted preliminary hearing testimony. And third, neither
the Los Angeles County Superior Court, nor California Court of Appeal, nor
California Supreme Court addressed his passing allegations against appellate
counsel. Instead, the state courts focused on the substance of his claims that related
to alleged ineffective assistance of his trial counsel.
Therefore, Petitioner failed to exhaust his claim for ineffective assistance of
appellate counsel, so it may not serve as the basis to overcome the Dixon bar and
procedural default. Accordingly, we cannot consider the merits of Petitioner’s due
process claim on AEDPA review because the state court’s decision rests on a state
6
procedural bar, California’s Dixon bar, which is independent of the federal question
and adequate to support the state-court judgment. See Coleman, 501 U.S. at 729–30.
AFFIRMED.
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