(HC) Hightower v. Koehn, No. 1:2014cv01675 - Document 24 (E.D. Cal. 2016)
Court Description: FINDINGS and RECOMMENDATIONS to Deny 1 Petition for Writ of Habeas Corpus signed by Magistrate Judge Jennifer L. Thurston on 4/26/16. Referred to Judge O'Neill. Objections to F&R Due Within Twenty-One Days. (Gonzalez, R)
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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 CURTIS HIGHTOWER, 12 Petitioner, 13 v. 14 BRIAN KOEHN, Respondent. 15 ) ) ) ) ) ) ) ) ) ) Case No.: 1:14-cv-01675 LJO JLT (HC) FINDINGS AND RECOMMENDATIONS TO DENY PETITION FOR WRIT OF HABEAS CORPUS (Doc. 1) ORDER DIRECTING THAT OBJECTIONS BE FILED WITHIN TWENTY-ONE DAYS 16 17 Petitioner was convicted of a number of crimes including commercial burglary. As a result, 18 the trial court sentenced him, ultimately, to ten years and four months in prison. In this action, 19 Petitioner claims the trial court improperly calculated his custody credits, that there was insufficient 20 evidence to support the conviction for commercial burglary, that he failed to receive effective 21 assistance of counsel and that he was not provided the discovery he sought before trial. 22 The Court finds that Petitioner has failed to exhaust two of the claims and he fails to 23 demonstrate any entitlement to relief on other grounds. Thus, the Court recommends the petition be 24 DENIED. 25 I. PROCEDURAL HISTORY 26 A jury convicted Petitioner of second degree commercial burglary, unlawful driving or taking of 27 a vehicle, and misdemeanor possession of burglary tools. (Doc. 17, Ex. A). After Petitioner waived his 28 right to a jury trial, the court found true allegations that he had three prior serious felony convictions 1 1 within the meaning of California’s Three Strikes Law, as well as three prior prison term enhancements. 2 (Id.). The court sentenced Petitioner to a term of 25-years-to-life for the burglary conviction and a 3 concurrent term of 25-years-to-life for taking the vehicle. (Id.). Following a change in state law, the 4 court granted Petitioner’s request for resentencing after which, the court sentenced him to a term of ten 5 years and four months. (Lodged Document (“LD”) 8). Petitioner filed a direct appeal in the California Court of Appeals, Fifth Appellate District (the 6 7 “5th DCA”), which affirmed the conviction. (Doc. 17, Ex. A). Petitioner then filed a petition for 8 review in the California Supreme Court that was denied. (LD 7). Petitioner next filed three state habeas corpus petitions in the Superior Court (LD 14; 15; 16), 9 10 each of which was denied. (LD 17; 18; 19). Petitioner then filed three petitions in the 5th DCA which 11 were also denied. (LD 20-22; 23-25). Finally, Petitioner filed three habeas petitions in the California 12 Supreme Court. (LD 26-28). That court denied each of these petitions as well. (LD 29; 30; 31). In his opposition to the petition, Respondent contends Petitioner has not exhausted two of the 13 14 stated grounds for relief. (Doc. 17). 15 II. FACTUAL BACKGROUND 16 The Court adopts the Statement of Facts in the 5th DCA’s unpublished decision1: 17 On January 13, 2011, Randall Burke exited his house and found his light gold Toyota Camry missing from his driveway. Burke had not given anyone permission to take his car. Burke had locked the car the previous day and had given the keys to his son to find something in his car. Burke could not find his car keys. Burke believed that his son may have left the key in the car door. 18 19 On the morning of January 13, 2011, Mehdi Huda and Danish Khakoo were working at Prince's Superette, a gas station and convenience store in Visalia. Between 11 a.m. and noon, appellant entered the store and asked for adult movies. Huda pulled out a box of DVDs and placed them on the counter for appellant. After sorting through the DVDs, appellant grabbed five or six of them and ran out of the store. 20 21 22 Khakoo chased appellant but did not catch him. Khakoo identified appellant in a field identification that afternoon and testified that appellant was the person who stole the DVDs. 23 24 Huda got into his car to look for appellant. Huda saw a gold Toyota Camry parked in an odd place, like a red zone, and took down the license plate number. Huda then saw the appellant enter the car and drive away. Appellant took an unusual turn as he left the scene and nearly hit another car. 25 26 27 28 1 The 5th DCA’s summary of the facts in its unpublished opinion is presumed correct. 28 U.S.C. §§ 2254(d)(2), (e)(1). Thus, the Court adopts the factual recitations set forth by the 5th DCA. 2 Just before 1 p.m. that afternoon, Barbara Raibley, the owner of a tax service, learned that an unidentified car was parked in the back parking lot of her business. Raibley reported the vehicle description and license plate number to the police. Raibley viewed a surveillance videotape from a parking lot camera and saw that the car had been left by a male carrying a backpack. The police determined that the car was Burke's stolen Camry. Sergeant Corey Sumpter began searching the area for someone who matched appellant's description. Sumpter stopped appellant, who was carrying a backpack, as appellant was leaving a nearby apartment complex. Sumpter found the stolen Camry key belonging to Burke in appellant's sweatshirt. Sumpter searched inside appellant's backpack and found a plastic DVD case containing six adult DVDs, some shaved Honda master keys used to open doors and start ignitions, latex gloves, and mail addressed to appellant. 1 2 3 4 5 6 Khakoo was brought to the scene for a field identification and he identified appellant as the DVD thief. Appellant was arrested. 7 8 A defense investigator tried to show Huda a photographic lineup, but Huda told the investigator that he did not see appellant long enough to identify him. According to the investigator, Khakoo also was unable to identify anyone in the photographic lineup as the DVD thief. 9 10 Appellant testified that he either took the bus or walked on the day of his arrest. Appellant stated that he had not been in Prince's Superette the morning of the theft. Appellant said he found the keys to the Camry on the ground while walking around. Appellant received the shaved keys and the DVDs from a friend. Appellant admitted he had prior felony convictions and was on parole at the time of his arrest. 11 12 13 14 (Doc. 17, Exh. A, pp. 4-5). 15 III. DISCUSSION 16 A. Jurisdiction 17 Relief by way of a petition for writ of habeas corpus extends to a person in custody pursuant to 18 the judgment of a state court if the custody is in violation of the Constitution, laws, or treaties of the 19 United States. 28 U.S.C. § 2254(a); 28 U.S.C. § 2241(c)(3); Williams v. Taylor, 529 U.S. 362, 375 n. 20 7 (2000). Petitioner asserts that he suffered violations of his rights as guaranteed by the United States 21 Constitution. The challenged conviction arises out of the Tulare County Superior Court, which is 22 located within the jurisdiction of this court. 28 U.S.C. § 2254(a); 28 U.S.C.§ 2241(d). 23 On April 24, 1996, Congress enacted the Antiterrorism and Effective Death Penalty Act of 1996 24 (“AEDPA”), which applies to all petitions for writ of habeas corpus filed after its enactment. Lindh v. 25 Murphy, 521 U.S. 320 (1997), cert. denied, 522 U.S. 1008, 118 S.Ct. 586 (1997); Jeffries v. Wood, 26 114 F.3d 1484, 1500 (9th Cir. 1997), cert. denied, 520 U.S. 1107 (1997), overruled on other grounds 27 by Lindh v. Murphy, 521 U.S. 320 (holding the AEDPA only applicable to cases filed after statute’s 28 enactment). The instant petition was filed after the enactment of the AEDPA and is therefore governed 3 1 by its provisions. 2 B. 3 A petition for writ of habeas corpus under 28 U.S.C. § 2254(d) will not be granted unless the 4 petitioner can show that the state court’s adjudication of his claim: (1) resulted in a decision that was 5 contrary to, or involved an unreasonable application of, clearly established Federal law, as determined 6 by the Supreme Court of the United States; or (2) resulted in a decision that “was based on an 7 unreasonable determination of the facts in light of the evidence presented in the State court 8 proceeding.” 28 U.S.C. § 2254(d); Lockyer v. Andrade, 538 U.S. 63, 70-71 (2003); Williams, 529 U.S. 9 at 412-413. 10 Legal Standard of Review A state court decision is “contrary to” clearly established federal law “if it applies a rule that 11 contradicts the governing law set forth in [the Supreme Court’s] cases, or “if it confronts a set of facts 12 that is materially indistinguishable from a [Supreme Court] decision but reaches a different result.” 13 Brown v. Payton, 544 U.S. 133, 141 (2005), citing Williams, 529 U.S. at 405-406 (2000). 14 In Harrington v. Richter, 562 U.S. ___ , 131 S.Ct. 770 (2011), the U.S. Supreme Court 15 explained that an “unreasonable application” of federal law is an objective test that turns on “whether 16 it is possible that fairminded jurists could disagree” that the state court decision meets the standards set 17 forth in the AEDPA. The Supreme Court has “said time and again that ‘an unreasonable application of 18 federal law is different from an incorrect application of federal law.’” Cullen v. Pinholster, 131 S.Ct. 19 1388, 1410-1411 (2011). Thus, a state prisoner seeking a writ of habeas corpus from a federal court 20 “must show that the state court’s ruling on the claim being presented in federal court was so lacking in 21 justification that there was an error well understood and comprehended in existing law beyond any 22 possibility of fairminded disagreement.” Harrington, 131 S.Ct. at 787-788. 23 The second prong pertains to state court decisions based on factual findings. Davis v. 24 Woodford, 384 F.3d at 637, citing Miller-El v. Cockrell, 537 U.S. 322 (2003). Under § 2254(d)(2), a 25 federal court may grant habeas relief if a state court’s adjudication of the petitioner’s claims “resulted 26 in a decision that was based on an unreasonable determination of the facts in light of the evidence 27 presented in the State court proceeding.” Wiggins v. Smith, 539 U.S. at 520; Jeffries v. Wood, 114 28 F.3d at 1500. A state court’s factual finding is unreasonable when it is “so clearly incorrect that it 4 1 would not be debatable among reasonable jurists.” Id.; see Taylor v. Maddox, 366 F.3d 992, 999-1001 2 (9th Cir. 2004), cert.denied, Maddox v. Taylor, 543 U.S. 1038 (2004). To determine whether habeas relief is available under § 2254(d), the federal court looks to the 3 4 last reasoned state court decision as the basis of the state court’s decision. See Ylst v. Nunnemaker, 5 501 U.S. 979, 803 (1991); Robinson v. Ignacio, 360 F.3d 1044, 1055 (9th Cir. 2004). “[A]lthough we 6 independently review the record, we still defer to the state court’s ultimate decisions.” Pirtle v. 7 Morgan, 313 F.3d 1160, 1167 (9th Cir. 2002). The prejudicial impact of any constitutional error is assessed by asking whether the error had “a 8 9 substantial and injurious effect or influence in determining the jury’s verdict.” Brecht v. Abrahamson, 10 507 U.S. 619, 623 (1993); see also Fry v. Pliler, 551 U.S. 112, 119-120 (2007)(holding that the Brecht 11 standard applies whether or not the state court recognized the error and reviewed it for harmlessness). 12 IV. 13 Review of Petitioner’s Claims. Petitioner alleges as grounds for relief: (1) the trial court improperly calculated his sentence by 14 misapplying state custody credits; (2) there was insufficient evidence to support the conviction for 15 burglary; (3) he suffered from ineffective assistance of trial counsel; and (4) the trial court erred in 16 denying his request for discovery. 17 A. Custody Credits 18 Petitioner contends that, pursuant to Proposition 36, passed in California in 2012, Petitioner is 19 entitled to have his custody credits determined at 33.33% rather than at 20%. (Doc. 1, p. 5). 20 Respondent argues that this claim is unexhausted and, because it implicates only state law issues, it is 21 not cognizable in these proceedings. The Court agrees. 22 23 1. Exhaustion A petitioner who is in state custody and wishes to bring a collateral challenge to his conviction 24 by a petition for writ of habeas corpus must first exhaust state judicial remedies. 28 U.S.C. § 25 2254(b)(1). The exhaustion doctrine is based on comity to the state court and gives the state court the 26 initial opportunity to correct the state’s alleged constitutional deprivations. Coleman v. Thompson, 501 27 U.S. 722, 731 (1991); Rose v. Lundy, 455 U.S. 509, 518 (1982); Buffalo v. Sunn, 854 F.2d 1158, 1163 28 (9th Cir. 1988). 5 1 To exhaust a claim, the petitioner must provide the highest state court with a full and fair 2 opportunity to consider each claim before presenting it to the federal court. Duncan v. Henry, 513 U.S. 3 364, 365 (1995); Picard v. Connor, 404 U.S. 270, 276 (1971); Johnson v. Zenon, 88 F.3d 828, 829 (9th 4 Cir. 1996). Petitioner gives the highest state court a full and fair opportunity to hear a claim only if he 5 presents the court with the factual and legal basis for the claim. Duncan, 513 U.S. at 365 (legal basis); 6 Kenney v. Tamayo-Reyes, 504 U.S. 1, 112 S.Ct. 1715, 1719 (1992) (factual basis). Additionally, the 7 petitioner must tell the state court specifically that he was raising a claim based on the United States 8 Constitution. Duncan, 513 U.S. at 365-66; Lyons v. Crawford, 232 F.3d 666, 668-669 (9th Cir. 2000), 9 amended, 247 F.3d 904 (2001); Hiivala v. Wood, 195 F.3d 1098, 1106 (9th Cir. 1999); Keating v. 10 11 Hood, 133 F.3d 1240, 1241 (9th Cir. 1998). Respondent has lodged documents with the Court establishing that, though Petitioner raised this 12 issue in some lower state courts, he did not raise this claim in the California Supreme Court. 13 Accordingly, the claim is unexhausted and federal review is barred. 14 15 2. State Law Issues In addition, the issue of his sentence calculation implicates only state law. Such a claim is not 16 cognizable in federal habeas proceedings. Estelle v. McGuire, 502 U.S. 62, 67 (1991) (“We have stated 17 many times that ‘federal habeas corpus relief does not lie for errors of state law.’”), quoting Lewis v. 18 Jeffers, 497 U.S. 764, 780 (1990); Gilmore v. Taylor, 508 U.S. 333, 348-349 (1993)(O’Connor, J., 19 concurring)(“mere error of state law, one that does not rise to the level of a constitutional violation, 20 may not be corrected on federal habeas”). Indeed, subsection (c) of Section 2241 of Title 28 of the 21 United States Code provides that habeas corpus shall not extend to a prisoner unless he is “in custody in 22 violation of the Constitution.” 28 U.S.C. § 2254(a) states that the federal courts shall entertain a petition 23 for writ of habeas corpus only on the ground that the petitioner “is in custody in violation of the 24 Constitution or laws or treaties of the United States. See also, Rule 1 to the Rules Governing Section 25 2254 Cases in the United States District Court. Furthermore, Petitioner must demonstrate that the state 26 court adjudication resulted in a decision that was contrary to, or involved an unreasonable application 27 of, clearly established federal law, as determined by the Supreme Court of the United States. 28 U.S.C. 28 § 2254(d)(1), (2). Alternatively, he may demonstrated the decision that was based on an unreasonable 6 1 determination of the facts in light of the evidence presented in the State court proceeding. Id. However, 2 Petitioner does not allege a violation of the Constitution or federal law, nor does he argue that he is in 3 custody in violation of the Constitution or federal law. Indeed, federal courts are bound by state court rulings on questions of state law. Oxborrow v. 4 5 Eikenberry, 877 F.2d 1395, 1399 (9th Cir.), cert. denied, 493 U.S. 942 (1989). Further, “the 6 availability of a claim under state law does not of itself establish that a claim was available under the 7 United States Constitution.” Sawyer v. Smith, 497 U.S. 227, 239 (1990), quoting, Dugger v. Adams, 8 489 U.S. 401, 409 (1989). Tinsley v. Borg, 895 F.2d 520, 530 (9th Cir.1990), cert. denied, 498 U.S. 9 1091 (1991) (“incorrect” evidentiary rulings are not the basis for federal habeas relief). To the extent that the petition can be construed as seeking to raise a federal claim by alleging 10 11 the state court’s calculations violated Petitioner’s “due process” rights, such vague and broad assertions 12 do not transform this claim into a federal one. Merely placing a “due process” label on an alleged state 13 law violation does not entitle Petitioner to federal relief. Langford v. Day, 110 F.3d 1386, 1388-89 14 (1996). Broad, conclusory allegations of unconstitutionality are insufficient to state a cognizable claim. 15 Jones v. Gomez, 66 F.3d 199, 205 (9th Cir.1995); Greyson v. Kellam, 937 F.2d 1409, 1412 (9th 16 Cir.1991) (bald assertions of ineffective assistance of counsel did not entitle the petitioner to an 17 evidentiary hearing); see also Hiivala v. Wood, 195 F.3d 1098, 1106 (9th Cir.1999), citing Gray v. 18 Netherland, 518 U.S. 152, 162-63 (1996) (“general appeals to broad constitutional principles, such as 19 due process, equal protection, and the right to a fair trial, are insufficient to establish exhaustion). 20 Accordingly, Ground One fails to state a federal question for which habeas relief can be granted However, even on the merits, this claim fails. The Superior court rejected the claim, reasoning 21 22 that Petitioner “is not entitled to credits under [Proposition 36]. His offenses occurred prior to 23 implementation of the new sentencing gridlines [sic]. The law is not retroactive and, therefore, 24 petitioner is entitled to credits under the old sentencing.” (LD 19). The state court’s reasoning is 25 simple, concise, and direct. Nothing Petitioner has argued in any contradicts the state court’s analysis 26 or requires a different outcome. Accordingly, even on the merits, the claim must be rejected. 27 /// 28 /// 7 1 2 3 B. Sufficiency of the Evidence 1. The State Court Decisions The Superior Court’s order denying Petitioner’s sufficiency claim was summary and contained 4 no explanation or reasoning. (LD 17). When a state court decision on a petitioner's claims rejects some 5 claims but does not expressly address a federal claim, a federal habeas court must presume, subject to 6 rebuttal, that the federal claim was adjudicated on the merits. Johnson v. Williams, ––– U.S. ––––, –––– 7 , 133 S.Ct. 1088, 1091 (2013). Moreover, where the state court reaches a decision on the merits but 8 provides no reasoning to support its conclusion, a federal habeas court independently reviews the 9 record to determine whether habeas corpus relief is available under § 2254(d). Stanley v. Cullen, 633 10 F.3d 852, 860 (9th Cir. 2011); Himes v. Thompson, 336 F.3d 848, 853 (9th Cir.2003); Greene v. 11 Lambert, 288 F.3d 1081, 1089 (9th Cir.2002) (holding that when there is an adjudication on the merits 12 but no reason for the decision, the court must review the complete record to determine whether 13 resolution of the case constitutes an unreasonable application of clearly established federal law); 14 Delgado v. Lewis, 223 F.3d 976, 982 (9th Cir. 2000) (“Federal habeas review is not de novo when the 15 state court does not supply reasoning for its decision, but an independent review of the record is 16 required to determine whether the state court clearly erred in its application of controlling federal 17 law.”). “[A]lthough we independently review the record, we still defer to the state court’s ultimate 18 decisions.” Pirtle v. Morgan, 313 F.3d 1160, 1167 (9th Cir. 2002). “Independent review of the record 19 is not de novo review of the constitutional issue, but rather, the only method by which we can 20 determine whether a silent state court decision is objectively unreasonable.” Himes, 336 F.3d at 853. 21 Where no reasoned decision is available, the habeas petitioner still has the burden of “showing there 22 was no reasonable basis for the state court to deny relief.” Harrington, 131 S.Ct. at 784. 23 The 5th DCA, in rejecting this claim, deemed the claim procedurally barred for failure to raise 24 the claim in the direct appeal, citing In re Harris, 5 Cal.4th 813 (1993). (LD 23). State courts may 25 decline to review a claim based on a procedural default. Wainwright v. Sykes, 433 U.S. 72, 86–87 26 (1977). Federal courts “will not review a question of federal law decided by a state court if the decision 27 of that court rests on a state law ground that is independent of the federal question and adequate to 28 support the judgment.” Coleman v. Thompson, 501 U.S. 722, 729 (1991); LaCrosse v. Kernan, 244 8 1 F.3d 702, 704 (9th Cir. 2001); see Ylst v. Nunnemaker, 501 U.S. 797, 801 (1991); Park v. California, 2 202 F.3d 1146, 1150 (2000) (“A district court properly refuses to reach the merits of a habeas petition if 3 the petitioner has defaulted on the particular state’s procedural requirements . . . .”); see also Fox Film 4 Corp. v. Muller, 296 U.S. 207, 210 (1935). This concept has been commonly referred to as the 5 procedural default doctrine, and is based on concerns of comity and federalism. Coleman, 501 U.S. at 6 730-32. If the court finds an independent and adequate state procedural ground, “federal habeas review 7 is barred unless the prisoner can demonstrate cause for the procedural default and actual prejudice, or 8 demonstrate that the failure to consider the claims will result in a fundamental miscarriage of justice.” 9 Noltie v. Peterson, 9 F.3d 802, 804-805 (9th Cir. 1993); Coleman, 501 U.S. at 750; Park v. California, 10 202 F.3d 1146, 1150 (9th Cir. 2000). 11 “For a state procedural rule to be ‘independent,’ the state law basis for the decision must not be 12 interwoven with federal law.” LaCrosse v. Kernan, 244 F.3d 702, 704 (9th Cir. 2001) (citing Michigan 13 v. Long, 463 U.S. 1032, 1040-41 (1983)); Morales v. Calderon, 85 F.3d 1387, 1393 (9th Cir. 1996) 14 (“Federal habeas review is not barred if the state decision ‘fairly appears to rest primarily on federal 15 law, or to be interwoven with federal law.’” (quoting Coleman, 501 U.S. at 735). “A state law is so 16 interwoven if ‘the state has made application of the procedural bar depend on an antecedent ruling on 17 federal law [such as] the determination of whether federal constitutional error has been committed.’” 18 Park, 202 F.3d at 1152 (quoting Ake v. Oklahoma, 470 U.S. 68, 75 (1985)). 19 To be deemed adequate, the state law ground for decision must be well-established and 20 consistently applied. Poland v. Stewart, 169 F.3d 573, 577 (9th Cir. 1999) (“A state procedural rule 21 constitutes an adequate bar to federal court review if it was ‘firmly established and regularly followed’ 22 at the time it was applied by the state court.”)(quoting Ford v. Georgia, 498 U.S. 411, 424, 111 S.Ct. 23 850 (1991)). Although a state court’s exercise of judicial discretion will not necessarily render a rule 24 inadequate, the discretion must entail “‘the exercise of judgment according to standards that, at least 25 over time, can become known and understood within reasonable operating limits.’” Id. at 377 (quoting 26 Morales, 85 F.3d at 1392). 27 28 California has established a procedural rule which provides that a California court, in a habeas corpus proceeding, will not review the merits of a claim if that claim could have been raised in a timely 9 1 appeal but was not. In re Dixon, 41 Cal.2d at 759 (“[I]n the absence of special circumstances 2 constituting an excuse for failure to employ [the] remedy [of direct review], the writ will not lie where 3 the claimed errors could have been, but were not, raised upon a timely appeal from a judgment of 4 conviction”). See In re Harris, 5 Cal.4th 813, 823 (1993) (explaining In re Dixon rule). Despite the 5 petitioner’s failure to bring a claim on direct appeal from a conviction, a California court will hear the 6 merits of case if the court finds one of four exceptions. The four exceptions to the Dixon bar are: 1) 7 fundamental constitutional error; 2) a lack of fundamental jurisdiction by the trial court over the 8 petitioner; 3) the trial court’s acting in excess of jurisdiction; and 4) an intervening change in the law. 9 Fields, 125 F.3d at 763, quoting, In re Harris, 5 Cal.4th at 828-842. Since the California Supreme Court’s 1998 decision in In re Robbins, 18 Cal.4th 770, 811-812 10 11 & n. 32 (1998), the Dixon rule has been independent of federal law. Park v. California, 202 F.3d 1146, 12 1152 (2000). Since the California Supreme Court’s 1993 decisions in In re Harris, 5 Cal.4th 813, 823 13 (1993), citing here by the 5th DCA, and In re Clark, 5 Cal.4th 750 (1993), the Dixon rule has been 14 consistently applied, i.e., “adequate.” Park, 202 F.3d at 1152. Hence, any state court ruling 15 procedurally barring a habeas claim because the petition failed to raise that claim in his direct appeal, 16 i.e., the Dixon rule, will be barred on federal habeas review unless the petitioner can demonstrate (1) 17 cause for the default and actual prejudice resulting from the alleged violation of federal law, or (2) a 18 fundamental miscarriage of justice. Harris v. Reed, 489 U.S. 255, 262-263 (1989); Coleman v. 19 Thompson, 501 U.S. 722, 750 (1989). Thus, to the extent that the claim is procedurally barred, habeas 20 review in this Court is barred. However, even as to the merits, the Court, applying the independent 21 review standard, nevertheless concludes that the claim is without merit.2 2. 22 Federal Standard 23 Pursuant to the Supreme Court’s holding in Jackson v. Virginia, the test on habeas review to 24 determine whether a factual finding is fairly supported by the record is as follows: “[W]hether, after 25 viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have 26 found the essential elements of the crime beyond a reasonable doubt.” Id., 443 U.S. at 319; see also 27 28 2 The Superior Court rejected the claim stating “He claims the evidence was insufficient to convict him. That is clearly not true .” (LD 17). In the Court’s view, such a conclusory analysis fails to qualify as a last “reasoned” decision by the state court. Accordingly, the Court, in addressing the merits, must conduct an independent review of the record . 10 1 Lewis v. Jeffers, 497 U.S. 764, 781 (1990). Thus, only if “no rational trier of fact” could have found 2 proof of guilt beyond a reasonable doubt will a petitioner be entitled to habeas relief. Jackson, 443 U.S. 3 at 324. Sufficiency claims are judged by the elements defined by state law. Id. at 324, n. 16. 4 A federal court reviewing collaterally a state court conviction does not determine whether it is 5 satisfied that the evidence established guilt beyond a reasonable doubt. Payne v. Borg, 982 F.2d 335, 6 338 (9th Cir. 1992). The federal court “determines only whether, ‘after viewing the evidence in the 7 light most favorable to the prosecution, any rational trier of fact could have found the essential elements 8 of the crimes beyond a reasonable doubt.’” See id., quoting Jackson, 443 U.S. at 319. Only where no 9 rational trier of fact could have found proof of guilt beyond a reasonable doubt may the writ be granted. 10 See Jackson, 443 U.S. at 324; Payne, 982 F.2d at 338. If confronted by a record that supports conflicting inferences, a federal habeas court “must 11 12 presume–even if it does not affirmatively appear in the record–that the trier of fact resolved any such 13 conflicts in favor of the prosecution, and must defer to that resolution.” Jackson, 443 U.S. at 326. A 14 jury’s credibility determinations are therefore entitled to near-total deference. Bruce v. Terhune, 376 15 F.3d 950, 957 (9th Cir. 2004). Except in the most exceptional of circumstances, Jackson does not 16 permit a federal court to revisit credibility determinations. See id. at 957-958. Circumstantial evidence and inferences drawn from that evidence may be sufficient to sustain a 17 18 conviction. Walters v. Maass, 45 F.3d 1355, 1358 (9th Cir. 1995). However, mere suspicion and 19 speculation cannot support logical inferences. Id.; see, e.g., Juan H. v. Allen, 408 F.3d 1262, 1278- 20 1279 (9th Cir. 2005)(only speculation supported conviction for first degree murder under theory of 21 aiding and abetting). After the enactment of the AEDPA, a federal habeas court must apply the 22 standards of Jackson with an additional layer of deference. Juan H., 408 F.3d at 1274. Generally, a 23 federal habeas court must ask whether the operative state court decision reflected an unreasonable 24 application of Jackson3 and Winship to the facts of the case. Id. at 1275. Moreover, in applying the AEDPA’s deferential standard of review, this Court must also 25 26 3 27 28 To the extent that the 5th DCA’s opinion does not expressly cite the Jackson v. Virginia standard in analyzing the sufficiency claims herein, it must be noted that, long ago, the California Supreme Court expressly adopted the Jackson standard for sufficiency claims in state criminal proceedings. People v. Johnson, 26 Cal.3d 557, 576 (1980). Accordingly, the state court applied the correct legal standard, and this Court’s only task is to determine whether the state court adjudication was contrary to or an unreasonable application of that standard. 11 1 presume the correctness of the state court’s factual findings. 28 U.S.C. § 2254(e)(1); Kuhlmann v. 2 Wilson, 477 U.S. 436, 459 (1986). This presumption of correctness applies to state appellate 3 determinations of fact as well as those of the state trial courts. Tinsley v. Borg, 895 F.2d 520, 525 (9th 4 Cir.1990). Although the presumption of correctness does not apply to state court determinations of 5 legal questions or mixed questions of law and fact, the facts as found by the state court underlying those 6 determinations are entitled to the presumption. Sumner v. Mata, 455 U.S. 539, 597 (1981); Cavazos, v. 7 Smith, __U.S. __, 132 S.Ct. 2, 3 (2011) [“Because rational people can sometimes disagree, the 8 inevitable consequence of this settled law is that judges will sometimes encounter convictions that they 9 believe to be mistaken, but that they must nonetheless uphold.”] 3. 10 Analysis The gravamen of Petitioner’s claim is that the prosecution presented insufficient evidence on 11 12 the charge of commercial burglary. (LD 27, p. 3). Petitioner appears to argue that simply taking 13 compact discs without payment and running out of the store is not burglary but, instead, some kind of 14 shoplifting or petty theft, at most. (Id.). Petitioner also contends that his evidence was not “accurately 15 presented,” i.e., that all he did was grab CDs and leave without paying; he did not commit burglary. 16 (Id.). 17 Petitioner was convicted of second degree commercial burglary, a violation of California Penal 18 Code sec. 459. (Doc. 17, Ex. A). Section 459 provides, in pertinent part, as follows: “Every person 19 who enters any…shop…[or]…store, …with intent to commit grand or petit larceny or any felony is 20 guilty of burglary.” At trial, Danish Khakoo testified he was working at a convenience store and gas 21 station when a man came in and asked where the magazines were located. (Reporter’s Transcript on 22 Appeal (“RT”) p. 88). Khakoo then saw his boss, Mehdi Huda, pull out a box of DVD’s so the man 23 could look through them. (Id.). About fifteen seconds later, the man grabbed a handful of the DVDs 24 and ran out of the store without paying for them. (RT 89). Khakoo chased the individual for about one 25 hundred feet but eventually gave up. (RT 90). The DVDs in question were “adult” DVDs that sell for 26 approximately $14-15. (Id.). Khakoo identified Petitioner as the individual who took the DVDs. (RT 27 93). Kkakoo also identified Petitioner on the day of the theft during a police “show-up.” (RT 94). 28 Sharon Brown, an officer with the Visalia Police Department, was called to the scene of the 12 1 burglary and interviewed both Huda and Khakoo. (RT 127). Huda, who had followed Petitioner in a 2 stolen vehicle, obtained a license plate number, which he gave to Brown. (RT 129). Brown put the 3 license number in her report. (Id.). Approximately an hour later, a report was made of a stolen vehicle 4 matching the plate number given to Brown by Huda. (RT 129). At that location, Brown learned that a 5 suspect had been detained. (RT 130). She then returned to the convenience store to get Khakoo and 6 bring him for a field showup with Petitioner. (RT 134). Khakoo told Brown that Petitioner “definitely” 7 was the individual who took the DVDs. (RT 136). Corey Sumpter, a sergeant in the Visalia Police Department, testified that he was called to the 8 9 scene of a stolen vehicle and determined that it matched the license plate number of the vehicle in 10 which Petitioner had escaped from the convenience store. (RT 171). Sumpter then began to search the 11 area for someone matching the description given to police by Huda and Khakoo, and saw Petitioner 12 coming out of some apartments nearby. (RT 172). Sumpter stopped Petitioner and, after Petitioner 13 agreed to a search of his backpack, discovered the keys to the stolen car and a DVD case containing six 14 “X-rated” DVDs. (RT 175). From the foregoing, it is patent that, construing the evidence in the light most favorable to the 15 16 prosecution, sufficient evidence was presented that Petitioner entered a “store” with the intent to 17 commit petit larceny. Under Jackson, no more is required.4 That Petitioner wished to portray his crime 18 as simple shoplifting or larceny is understandable. However, his claim is framed as a “sufficiency” 19 argument and that is how it was presented to the state courts. Thus, this Court reviews the claim as 20 framed, and, in doing finds that a “rational trier of fact” could have found Petitioner guilty of second 21 degree commercial burglary. Jackson, 443 U.S. at 324. Accordingly, the claim should be denied. 22 C. Ineffective Assistance of Counsel 23 Petitioner next argues his trial and appellate counsel failed to provide effective representation, 24 as required by the Sixth Amendment. Specifically, Petitioner contends that trial counsel “failed to 25 present all evidence, failed to subpoena witnesses, failed to maintain contact with [Petitioner],” and that 26 27 28 4 In rejecting Petitioner’s sufficiency claim, the 5 th DCA astutely noted that the claim “is based on [Petitioner’s] view of the evidence, not [upon] a complete lack of it.” (Doc. 1, p. 14). 13 1 appellate counsel “failed to address applicable grounds on opening brief,” focusing exclusively on 2 sentencing error rather than trial error. (Doc. 1, p. 12). This contention also lacks merit. 1. 3 4 5 6 7 8 9 10 11 Superior Court’s Opinion After an extensive discussion of the Strickland standard, discussed infra, the state court concluded as follows: Petitioner failed to raise any issues which rise to the level of prima facie evidence which would warrant relief….In addition to all of the above, the petitioner entered into a plea agreement to avoid exposure to greater punishment should he be convicted of the charged offenses. He received the benefit of his bargain and received the exact sentence he agreed to. He cannot now come forward and claim he doesn’t want the deal. (LD 18). 2. Federal Standard The Due Process Clause of the Fourteenth Amendment guarantees effective assistance of 12 appellate counsel. Evitts v. Lucey, 469 U.S. 387, 391-405 (1985). Claims of ineffective assistance of 13 counsel are reviewed according to Strickland's two-pronged test. Miller v. Keeney, 882 F.2d 1428, 14 1433 (9th Cir.1989); United States v. Birtle, 792 F.2d 846, 847 (9th Cir.1986); see also Penson v. Ohio, 15 488 U.S. 75(1988) (holding that where a defendant has been actually or constructively denied the 16 assistance of appellate counsel altogether, the Strickland standard does not apply and prejudice is 17 presumed; the implication is that Strickland does apply where counsel is present but ineffective). 18 To prevail, Petitioner must show two things. First, he must establish that counsel’s deficient 19 performance fell below an objective standard of reasonableness under prevailing professional norms. 20 Strickland v. Washington, 466 U.S. 668, 687-88, 104 S.Ct. 2052 (1984). Second, Petitioner must 21 establish that he suffered prejudice in that there was a reasonable probability that, but for counsel’s 22 unprofessional errors, he would have prevailed on appeal. Id. at 694. A “reasonable probability” is a 23 probability sufficient to undermine confidence in the outcome of the appeal. Id. The relevant inquiry is 24 not what counsel could have done; rather, it is whether the choices made by counsel were reasonable. 25 Babbitt v. Calderon, 151 F.3d 1170, 1173 (9th Cir.1998). 26 With the passage of the AEDPA, habeas relief may only be granted if the state court decision 27 unreasonably applied this general Strickland standard for ineffective assistance. Knowles v. 28 Mirzayance, 556 U.S. ___, 129 S.Ct. 1411, 1419 (2009). Accordingly, the question “is not whether a 14 1 federal court believes the state court’s determination under the Strickland standard “was incorrect but 2 whether that determination was unreasonable–a substantially higher threshold.” Schriro v. Landrigan, 3 550 U.S. 465, 473 (2007); Knowles v. Mirzayance, 556 U.S. ___, 129 S.Ct. at 1420. In effect, the 4 AEDPA standard is “doubly deferential” because it requires that it be shown not only that the state 5 court determination was erroneous, but also that it was objectively unreasonable. Yarborough v. 6 Gentry, 540 U.S. 1, 5 (2003). Moreover, because the Strickland standard is a general standard, a state 7 court has even more latitude to reasonably determine that a defendant has not satisfied that standard. 8 See Yarborough v. Alvarado, 541 U.S. 652, 664 (2004)(“[E]valuating whether a rule application was 9 unreasonable requires considering the rule’s specificity. The more general the rule, the more leeway 10 11 courts have in reaching outcomes in case-by-case determinations”). In challenges to the effective assistance of appellate counsel, the same standards apply as with 12 the claims of ineffective assistance of trial counsel. Smith v. Robbins, 528 U.S. 259, 285 (2000); Smith 13 v. Murray, 477 U.S. 527 (1986). In Smith, the United States Supreme Court indicated that an appellate 14 attorney filing a merits brief need not and should not raise every non-frivolous claim. Robbins, 528 15 U.S. at 288. Rather, an attorney may select from among them in order to maximize the likelihood of 16 success on appeal. Id. As a result, there is no requirement that an appellate attorney raise issues that 17 are clearly untenable. Gustave v. United States, 627 F.2d 901, 906 (9th Cir. 1980); see also Gillhan v. 18 Rodriguez, 551 F.2d 1182 (10th Cir. 1977). 19 3. Analysis 20 Rule 2 of the Rules Governing Section 2254 Cases provides that the petition: 21 “…shall specify all the grounds for relief which are available to the petitioner and of which he has or by the exercise of reasonable diligence should have knowledge and shall set forth in summary form the facts supporting each of the grounds thus specified.” 22 23 Rule 2(c), Rules Governing Section 2254 Cases. Petitioner must also clearly state the relief sought in 24 the petition. Id. Additionally, the Advisory Committee Notes to Rule 4 explains that “… ‘[N]otice’ 25 pleading is not sufficient, for the petition is expected to state facts that point to a ‘real possibility of 26 constitutional error.’” Advisory Committee Notes to Rule 4; see Blackledge v. Allison, 431 U.S. 63, 27 75, n. 7 (1977). 28 Here, as mentioned, Petitioner challenges trial counsel’s representation in failing to present all 15 1 evidence, to subpoena witnesses, and to maintain contact with Petitioner. The petition, however, 2 contains no details or specific allegations regarding the evidence trial counsel could or should have 3 presented, nor which witnesses counsel should have called but did not. The petition does not specify in 4 what ways counsel failed to maintain contact with Petitioner or what communication could have been, 5 but was not, transmitted had additional contacts been maintained. In short, the petition is conclusory 6 and inadequate to state a cognizable federal habeas claim for ineffective assistance of counsel. Such 7 inadequacy is fatal for federal review since Petitioner has not provided any information regarding 8 specific acts of attorney misconduct to which the Court could apply Strickland. 9 Respondent assumes, understandably, that Petitioner intended to argue that counsel was derelict 10 in failing to challenge his prior convictions. However, a comprehensive review of the petition itself 11 fails to disclose any such claim. Accordingly, the Court need not address any allegation not raised in 12 the petition. 13 In sum, Petitioner has submitted a claim that fails to comply with the requirements of Rule 2(c). 14 It is Petitioner’s responsibility to specify the ground for relief and to provide sufficient factual 15 allegations for the Court to determine what claim Petitioner is seeking to raise and whether that claim 16 states the kind of federal constitutional violations upon which this Court’s habeas jurisdiction may be 17 predicated. Petitioner has failed to meet these minimal pleading requirements with regard to this claim. 18 As the state court put it, Petitioner has failed to make a prima facie showing of ineffective assistance. 19 Accordingly, the claim should be rejected. 20 D. Denial of Discovery 21 Finally, Petitioner contends that the trial court permitted his conviction without proper police 22 investigation, e.g., videotapes from the convenience store, forensic testing of the stolen vehicle, 23 surveillance cameras in the area, and without permitting Petitioner and his counsel to conduct a proper 24 investigation into Petitioner’s allegation that he had been misidentified. (Doc. 1, p. 16). This 25 contention is also without merit. 26 1. 27 28 Analysis Respondent first argues that the claim is unexhausted and the Court agrees. In his petition, Petitioner appears to concede he has not exhausted this claim by raising it in the California Supreme 16 1 Court. (Doc. 1, pp. 16-18). Accordingly, as discussed previously, an unexhausted claim bars federal 2 review. Second, Petitioner has not identified, and the Court is unaware of, any “clearly established 3 4 Supreme Court” authority that a petitioner has a constitutional right to be provided the kinds of 5 discovery—through additional investigation and research—to which Petitioner alludes. In the absence 6 of any clearly established federal law, there can be no habeas relief. See 28 U.S.C. § 2254(d); Lockyer 7 v. Andrade, 538 U.S. at 70-71. 8 Finally, Petitioner does not provide any specific information about what such additional 9 discovery or investigation would have revealed, how it would have affected his defense or the trial, or, 10 indeed, whether such additional discovery would have had any impact at all on the state court 11 proceedings at all. Based on this paucity of evidence, the Court can only conclude that even if, 12 arguendo, the error occurred, it failed to have a “substantial and injurious” effect on the outcome of the 13 trial. See Brecht v. Abrahamson, 407 U.S. at 637. Accordingly, the error, if any, was harmless. RECOMMENDATION 14 Accordingly, the Court RECOMMENDS that Petitioner’s Petition for Writ of Habeas Corpus 15 16 (Doc. 1), be DENIED with prejudice. 17 This Findings and Recommendation is submitted to the United States District Court Judge 18 assigned to this case, pursuant to the provisions of 28 U.S.C. § 636 (b)(1)(B) and Rule 304 of the 19 Local Rules of Practice for the United States District Court, Eastern District of California. Within 21 20 days after being served with a copy, any party may file written objections with the court and serve a 21 copy on all parties. Such a document should be captioned “Objections to Magistrate Judge’s Findings 22 and Recommendation.” Replies to the objections shall be served and filed within 10 days (plus three 23 days if served by mail) after service of the objections. The Court will then review the Magistrate 24 Judge’s ruling pursuant to 28 U.S.C. § 636 (b)(1)(C). 25 /// 26 /// 27 /// 28 /// 17 1 2 The parties are advised that failure to file objections within the specified time may waive the right to appeal the District Court’s order. Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991). 3 4 5 6 IT IS SO ORDERED. Dated: April 26, 2016 /s/ Jennifer L. Thurston UNITED STATES MAGISTRATE JUDGE 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 18
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