NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS AUG 14 2023
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
KEVIN LIU, No. 20-56338
Petitioner-Appellant, D.C. No.
2:17-cv-07465-SB-JPR
v.
MARCUS POLLARD, Warden, MEMORANDUM*
Respondent-Appellee.
Appeal from the United States District Court
for the Central District of California
Stanley Blumenfeld, Jr., District Judge, Presiding
Submitted July 19, 2023**
Pasadena, California
Before: NGUYEN and FORREST, Circuit Judges, and BENNETT,*** District
Judge.
Partial Concurrence by Judge NGUYEN.
Petitioner-Appellant Kevin Liu appeals the district court’s denial of his 28
*
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 Richard D. Bennett, United States Senior District Judge
for the District of Maryland, sitting by designation.
U.S.C. § 2254 petition challenging his California state convictions for attempted
murder and related crimes. In support of his petition, Liu argued that he was denied
his right to counsel of choice when the state trial court denied his request for a
continuance at his preliminary hearing. The district court concluded that this claim
was procedurally defaulted under California’s Dixon bar. On appeal, Liu contends
that the district court’s finding was improper because there was no procedural
default, and, in any event, any default is excused. We have jurisdiction pursuant to
28 U.S.C. §§ 1291 and 2253(a), and we affirm.
I.
This Court reviews de novo the denial of a 28 U.S.C. § 2254 petition, Williams
v. Warden, 422 F.3d 1006, 1008 (9th Cir. 2005), as well as findings of procedural
default and exhaustion. Insyxiengmay v. Morgan, 403 F.3d 657, 665 (9th Cir. 2005).
“Federal habeas courts generally refuse to hear claims ‘defaulted . . . in state court
pursuant to an independent and adequate state procedural rule.’” Johnson v. Lee, 578
U.S. 605, 606 (2016) (per curiam) (quoting Coleman v. Thompson, 501 U.S. 722,
750 (1991)). Like all states, California requires criminal defendants to raise available
claims on direct appeal. Id. Under California law, courts will not entertain habeas
corpus claims “where the claimed errors could have been, but were not, raised upon
a timely appeal from a judgment of conviction.” In re Dixon, 264 P.2d 513, 514 (Cal.
1953). This is known as the Dixon bar, which the Supreme Court has held was both
2
firmly established and regularly followed such that it can serve as an adequate
ground for denying a federal habeas petition. See Johnson, 578 U.S. at 608–12.
Liu’s main argument1 is that the Dixon bar is inapposite, as his continuance
claim was based on facts outside the appellate record that could not have been raised
on direct review. But federal habeas relief generally “does not lie for errors of state
law,” Swarthout v. Cooke, 562 U.S. 216, 219 (2011), and “it is unusual to reject a
state court’s use of a procedural bar on the ground that it was erroneously applied.”
Sivak v. Hardison, 658 F.3d 898, 907 (9th Cir. 2011). In any event, the record
supports the state court’s application of the Dixon bar.
Liu contends that, in any event, he is excused from his procedural default. To
overcome a state procedural bar such as Dixon, a prisoner must demonstrate cause
for his state court default of any federal claim, as well as prejudice resulting
1
In his Reply Brief, Liu argues that “the Dixon bar [was] not adequate to bar
federal review because the state court’s application of Dixon in this case was novel,
unforeseeable, and inconsistent with long-standing California precedent,” citing
Cruz v. Arizona, 143 S. Ct. 650 (2023). However, Cruz concerned whether a state
prisoner could be barred from challenging an Arizona state court’s decision denying
his right to inform the jury about relevant sentencing information, where the state
court applied a novel rule to bar his ability to present the issue on post-conviction
review. Id. at 655–57. The Supreme Court held that the state court’s basis for
precluding the claim was such a novel and unforeseeable interpretation of state law
that it was not an “adequate state procedural ground” to bar federal review. Id. at
660–62. Comparatively, nothing suggests that the California Supreme Court’s
application of the Dixon bar in this case relied on a novel or unforeseeable
interpretation of state law. See Ford v. Georgia, 498 U.S. 411, 423–24 (1991)
(holding that a state procedural bar is adequate if it is “firmly established and
regularly followed” at the time it is applied).
3
therefrom, before the federal habeas court will consider the merits of that claim.
Edwards v. Carpenter, 529 U.S. 446, 451 (2000). The one exception to this rule—
which is not at issue here—is where the habeas petitioner can demonstrate a
sufficient probability that failure to review his federal claim will result in a
fundamental miscarriage of justice. Id.
Liu argues that he received ineffective assistance of appellate counsel, which
constitutes cause to excuse the procedural default. However, Liu did not exhaust this
ineffective assistance of counsel claim. Id. at 452 (“A claim of ineffective
assistance . . . generally must ‘be presented to the state court as an independent claim
before it may be used to establish cause for a procedural default.’” (citation and
alteration omitted)). Rather, he abandoned his ineffective assistance of appellate
counsel claim when he voluntarily dismissed it in his September 19, 2018, federal
filing, explicitly conceding the claim was unexhausted.
Petitioner next argues that he was not required to prove prejudice to overcome
his default because the denial of a continuance to allow him to be represented by a
different attorney constituted “structural error.” As the district court noted, Liu had
no constitutional right to a preliminary hearing; he likewise had no constitutional
right to have the preliminary hearing continued. See e.g., Peterson v. California, 604
F.3d 1166, 1169 (9th Cir. 2010); Ramirez v. Arizona, 437 F.2d 119, 119–20 (9th Cir.
1971). He specifically alleges that he was denied his Sixth Amendment right to
4
counsel of his choice. The California Supreme Court summarily denied both of his
state petitions. Trial judges have broad discretion to balance a defendant’s right to
counsel of choice with the demands of their calendars, Morris v. Slappy, 461 U.S. 1,
11–12 (1983), and nothing indicates that the trial court’s denial of Liu’s request for
a continuance was arbitrary or unreasonable. See, e.g., Armant v. Marquez, 772 F.2d
552, 556–58 (9th Cir. 1985); United States v. Flynt, 756 F.2d 1352, 1358 (9th Cir.
1985). While a continuance would have afforded Liu’s newly hired attorney time to
prepare for the hearing, Liu’s public defender indicated that she was prepared to
represent him, and a continuance would have inconvenienced the prosecution, which
had three witnesses present for the hearing. Accordingly, we conclude Liu’s claim
was procedurally defaulted.
II.
Alternatively, assuming Liu’s Sixth Amendment claim is not procedurally
defaulted, it fails on the merits. If a state inmate’s habeas claim is “clearly not
meritorious,” then “appeals courts are empowered to, and in some cases should,
reach the merits” of the claim “despite an asserted procedural bar.” Ayala v.
Chappell, 829 F.3d 1081, 1096 (9th Cir. 2016) (quoting Franklin v. Johnson, 290
F.3d 1223, 1232 (9th Cir. 2002)).
“[T]he right to counsel of choice is ‘circumscribed in several important
respects.’” Miller v. Blacketter, 525 F.3d 890, 895 (9th Cir. 2008) (quoting Wheat v.
5
United States, 486 U.S. 153, 159 (1988)). “[A] trial court requires ‘wide latitude in
balancing the right to counsel of choice against the needs of fairness, and against the
demands of its calendar.’” Id. (quoting United States v. Gonzalez-Lopez, 548 U.S.
140, 152 (2006)). “As such, trial courts retain the discretion to ‘make scheduling and
other decisions that effectively exclude a defendant’s first choice of counsel.’” Id.
(quoting Gonzalez-Lopez, 548 U.S. at 152).
Liu asserts that the trial court “did not ask [him] if the prosecutor’s
representations” about his refusal to waive time “were accurate,” but Liu was
represented by competent counsel who confirmed that “Mr. Liu didn’t want to waive
time.” Liu, who was present, did not contest his counsel’s representations.
Regardless, the trial court denied the continuance before being told that Liu had
refused to waive time, so that information did not sway the court’s decision.
The trial court had sound reasons for proceeding with the preliminary
hearing—in particular, the prosecution had ensured that the victims were present and
ready to testify. And the trial court allowed Liu’s retained counsel, who attended the
hearing, to substitute into the case immediately afterward. For these reasons, Liu’s
Sixth Amendment claim fails, and we affirm the district court’s order denying
habeas relief.
AFFIRMED.
6
FILED
AUG 14 2023
NGUYEN, Circuit Judge, concurring in part and in the judgment: MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
I concur in the majority’s resolution of the merits, but I would not decide the
procedural question. The California Supreme Court’s reasoning for twice denying
Kevin Liu’s habeas claim is opaque, and it’s not clear to me that Liu’s claim is
procedurally defaulted.
I.
Liu presented the California Supreme Court with two identical habeas
petitions containing several claims, including the one at issue here—that the trial
court denied Liu his Sixth Amendment right to counsel of choice. The California
Supreme Court summarily denied both petitions. In denying the first petition, the
court stated that “a petition for writ of habeas corpus must include copies of
reasonably available documentary evidence,” citing People v. Duvall, 886 P.2d
1252, 1258 (Cal. 1995).2 Liu provided some transcript excerpts with his second
petition. In denying that petition, the court stated that “a petition for writ of habeas
corpus must allege sufficient facts with particularity,” citing Ex parte Swain, 209
P.2d 793, 796 (Cal. 1949).
2
In denying both habeas petitions, the California Supreme Court also stated that
“courts will not entertain habeas corpus claims that were rejected on appeal,” citing
In re Waltreus, 397 P.2d 1001, 1005 (Cal. 1965). These Waltreus citations evidently
refer to the claims of misconduct based on the prosecution’s introduction of evidence
that Liu’s ex-wife, one of the victims, had cancer.
7
“[T]he California Supreme Court’s denial of [a] habeas petition with reference
to Swain and Duvall” means that the court “rejected [the] petition as insufficiently
pleaded.” Curiel v. Miller, 830 F.3d 864, 869 (9th Cir. 2016) (en banc). That makes
sense given Liu’s allegations. Just prior to the preliminary hearing, the trial court
denied Liu’s request for a continuance to substitute in newly retained counsel. In
his habeas petitions, Liu claimed that the prosecutor “misled the court . . . to believe
that” in an earlier, apparently unreported proceeding,3 Liu “refused to waive his right
to a speedy trial . . . as a tactical man[e]uver.” But Liu provided no further details.
Generally, a “denial [of habeas relief] accompanied by citations to Swain and
Duvall is the equivalent of a demurrer for pleading inadequacies.” Curiel, 830 F.3d
at 870. And “[a] dismissal without prejudice for failure to plead with specificity
invites a refiling of the habeas petition,” id. at 870–71, leading to the possibility that
Liu’s claim is still unexhausted. But not necessarily. If Liu’s claim is “incapable of
being alleged with any greater particularity,” “then the California Supreme Court’s
denial for lack of particularity amounts to a holding that the [claim itself is]
defective,” and we may consider it. Kim v. Villalobos, 799 F.2d 1317, 1319–20 (9th
Cir. 1986). And even if the claim is unexhausted, we may deny it on the merits if
3
The state provided numerous transcripts below, as required, see Rules Governing
§ 2254 Proceedings, R. 5(c), 28 U.S.C. foll. § 2254, but failed to include the
proceeding where Liu waived his speedy trial rights.
8
having the state courts consider Liu’s additional attempts at exhaustion would serve
no purpose. See 28 U.S.C. § 2254(b)(2).
II.
In denying Liu’s second state habeas petition, the California Supreme Court
also stated that “courts will not entertain habeas corpus claims that could have been,
but were not, raised on appeal,” citing Ex parte Dixon, 264 P.2d 513, 514 (Cal.
1953). The majority, assuming that the citation to Dixon referenced Liu’s Sixth
Amendment claim, concludes that the state court denied Liu’s claim pursuant to an
independent and adequate state procedural rule. For several reasons, that is doubtful.
First, as discussed above, Liu’s failure to allege any details regarding his claim
suggests that the state court’s denial was for pleading deficiencies rather than Liu’s
failure to raise the claim earlier. Second, if the state court thought that Liu should
have raised the claim on direct appeal, why did it wait until the second denial order
to say so? Instead, the court likely was responding to Liu’s allegations of error
during the trial, including that the prosecutor prejudicially manipulated facts and
evidence. Liu did not provide evidence for his trial-related claims because he
purportedly did not have access to the trial transcripts.
Third, Liu’s Sixth Amendment claim revolves around an event that is not part
of the record—Liu’s apparent refusal to waive his speedy trial rights—and
California courts do not consider such claims on direct appeal. See In re Bower, 700
9
P.2d 1269, 1272 (Cal. 1985) (“[W]hen reference to matters outside the record is
necessary to establish that a defendant has been denied a fundamental constitutional
right[,] resort to habeas corpus is not only appropriate, but required.”). To the extent
the state court concluded that Liu was required to raise his claim on appeal, “an
unforeseeable and unsupported state-court decision on a question of state procedure
does not constitute an adequate ground to preclude [federal habeas] review of a
federal question.” Cruz v. Arizona, 143 S. Ct. 650, 658 (2023) (quoting Bouie v.
City of Columbia, 378 U.S. 347, 354 (1964)).
Because the procedural default issue is close, I would not reach it. I therefore
concur in the majority disposition affirming the district court’s denial of habeas relief
only insofar as it concludes that Liu’s Sixth Amendment claim lacks merit.
10
Kevin Liu v. Marcus Pollard
Combined Opinion