Zachary Glenn Libby v. Warden, No. 5:2009cv00870 - Document 15 (C.D. Cal. 2010)

Court Description: OPINION AND ORDER ON A PETITION FOR HABEAS CORPUS AND DENYING CERTIFICATE OF APPEALABILITY by Magistrate Judge Rosalyn M. Chapman; See order for details. (jy)

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Zachary Glenn Libby v. Warden Doc. 15 1 2 3 4 5 6 7 UNITED STATES DISTRICT COURT 8 CENTRAL DISTRICT OF CALIFORNIA 9 10 11 ZACHARY GLENN LIBBY, aka ZACHERY GLENN LIBBY, 12 Petitioner, 13 vs. 14 WARDEN DARREL ADAMS, 15 Respondent. 16 ) Case No. EDCV 09-0870-RC ) ) ) ) ) OPINION AND ORDER ON A ) PETITION FOR HABEAS CORPUS ) ) ) ) 17 18 On April 27, 2009, Zachary Glenn Libby, aka Zachery Glenn Libby, 19 a state inmate proceeding pro se, constructively filed a habeas corpus 20 petition under 28 U.S.C. § 2254, which this Court dismissed with leave 21 to amend on May 6, 2009, finding petitioner had failed to name the 22 respondent as required by Rule 2(a) of the Rules Governing Section 23 2254 Cases in the United States District Courts. 24 petitioner filed his First Amended Petition, claiming there was 25 insufficient evidence to support the firearm enhancement that he 26 personally used a firearm within the meaning of California Penal Code 27 ( P.C. ) § 12022.53(b) and the alleged gun wasn t used menacingly. 28 On July 15, 2009, respondent filed an answer to the petition. On May 14, 2009, Dockets.Justia.com 1 However, petitioner did not file a reply. The parties have consented 2 to this Court pursuant to 28 U.S.C. § 636(c). 3 4 BACKGROUND 5 I 6 On April 27, 2007, in Riverside County Superior Court case no. 7 SWV017270, a jury convicted petitioner of one count of second degree 8 robbery in violation of P.C. § 211 (count 1), one count of 9 obstructing/resisting executive officers in violation of P.C. § 69 10 (count 2) and one count of false representation of identity to a peace 11 officer in violation of P.C. § 148.9 (count 3), and, as to count 1, 12 the jury found it to be true that petitioner personally used a firearm 13 within the meaning of P.C. §§ 12022.53(b) and 1192.7(c)(8) in 14 commission of the second degree robbery. 15 100-01, 103-06. 16 years in state prison, including 10 years on the firearm enhancement. 17 CT 116-17, 138-40. Clerk s Transcript ( CT ) The petitioner was sentenced to the total term of 13 18 19 The petitioner appealed his convictions and sentence to the 20 California Court of Appeal, CT 141-42, Lodgment nos. 3-4, which 21 affirmed the judgment in an unpublished opinion filed May 2, 2008. 22 Lodgment no. 5. 23 counsel, filed a petition for review in the California Supreme Court, 24 which denied the petition on July 9, 2008. On June 9, 2008, petitioner, proceeding through Lodgment nos. 6-7. 25 26 II 27 The California Court of Appeal, in affirming petitioner s 28 convictions, made the following findings of fact regarding the 2 1 circumstances underlying the offenses:1 2 convenience store at 11:45 p.m., walked around the store, grabbed a 3 12-pack of beer, and placed it on the cashier counter. 4 then exited the store. 5 store. 6 door, peered outside from side to side, turned around, and told the 7 cashier to give him all the money in the cash register. 8 asked if petitioner was serious. 9 pocket what appeared to the cashier to be a gun and showed it to the The petitioner entered a The petitioner The petitioner thereafter returned inside the After the last customer exited, petitioner opened the front The cashier The petitioner then removed from his 10 cashier. The cashier testified that the gun was silver, was probably 11 like a .22[,] and fit inside petitioner s hand. 12 trigger and at least one barrel. 13 handling of the alleged weapon as brandish[ing]. 14 simultaneously reiterated his demand that the clerk give petitioner 15 all the money. 16 petitioner then showed the object to the clerk on one more occasion 17 before he left with the money from the register. 18 into evidence a videotape taken from the market s surveillance cameras 19 and two still photos showing petitioner holding the object. 20 the still photos is a close-up of the object in petitioner s hand. The object had a The clerk characterized petitioner s The petitioner The petitioner returned the object to his pocket. The The People offered One of 21 22 At no time did petitioner point the object at the clerk or refer 23 to it as a weapon. The petitioner never verbally threatened the 24 clerk. 25 The clerk could not recall whether the object had one or two barrels. 26 The clerk confessed that he could not actually determine the caliber The petitioner merely held the object in his up-faced palm. 27 28 1 Lodgment no. 5 at 2-3. 3 1 of the weapon. 2 before. 3 had. The clerk indicated that he had never seen a fake gun He could not remember what type of grip or handle the object The clerk only saw the object for a few seconds. 4 5 A clerk at another nearby convenience store alerted sheriff s 6 deputies to petitioner s presence a couple hours later, after a 7 description of petitioner had been sent to local businesses. 8 deputies arrival, petitioner saw them and ran. 9 petitioner with the aid of a trained dog. Upon the Deputies pursued Deputies apprehended 10 petitioner approximately half an hour thereafter. Deputies searched 11 petitioner and the trail of their pursuit, but did not find any 12 weapon. 13 to be a gun nor were any other witnesses encountered who saw 14 petitioner with a gun. Deputies never saw petitioner discard anything that appeared 15 16 DISCUSSION 17 III 18 The Antiterrorism and Effective Death Penalty Act of 1996 19 ( AEDPA ) circumscribes a federal habeas court s review of a state 20 court decision. 21 1166, 1172, 155 L. Ed. 2d 144 (2003); Wiggins v. Smith, 539 U.S. 510, 22 520, 123 S. Ct. 2527, 2534, 156 L. Ed. 2d 471 (2003). 23 AEDPA, 28 U.S.C. § 2254(d) provides: Lockyer v. Andrade, 538 U.S. 63, 70, 123 S. Ct. As amended by 24 25 An application for a writ of habeas corpus on behalf of a 26 person in custody pursuant to the judgment of a State court 27 shall not be granted with respect to any claim that was 28 adjudicated on the merits in State court proceedings unless 4 1 the adjudication of the claim- [¶] (1) resulted in a 2 decision that was contrary to, or involved an unreasonable 3 application of, clearly established Federal law, as 4 determined by the Supreme Court of the United States; or [¶] 5 (2) resulted in a decision that was based on an unreasonable 6 determination of the facts in light of the evidence 7 presented in the State court proceeding. 8 9 28 U.S.C. § 2254(d). Further, under AEDPA, a federal court shall 10 presume a state court s determination of factual issues is correct, 11 and the petitioner has the burden of rebutting this presumption by 12 clear and convincing evidence. 28 U.S.C. § 2254(e)(1). 13 14 The California Supreme Court reached the merits of petitioner s 15 claim when it denied petitioner s petition for review without comment 16 or citation to authority. 17 Cir. 2005), amended by, 447 F.3d 1165 (9th Cir. 2006), cert. denied, 18 549 U.S. 1134 (2007); Hunter v. Aispuro, 982 F.2d 344, 348 (9th Cir. 19 1992), cert. denied, 510 U.S. 887 (1993). 20 reasoned judgment rejecting a federal claim, later unexplained orders 21 upholding that judgment or rejecting the same claim rest upon the same 22 ground. 23 2594, 115 L. Ed. 2d 706 (1991); Medley v. Runnels, 506 F.3d 857, 862 24 (9th Cir. 2007) (en banc), cert. denied, 552 U.S. 1316 (2008). 25 this Court will consider the reasoned opinion of the California Court 26 of Appeal, which denied petitioner s claim on the merits. 27 Roe, 606 F.3d 561, 568 (9th Cir. 2010); Collins v. Runnels, 603 F.3d 28 1127, 1130 (9th Cir.), cert. denied, __ S. Ct. __, 2010 WL 2632367 Gaston v. Palmer, 417 F.3d 1030, 1038 (9th Where there has been one Ylst v. Nunnemaker, 501 U.S. 797, 803, 111 S. Ct. 2590, 5 Thus, Maxwell v. 1 (2010). 2 IV 3 4 To review the sufficiency of evidence in a habeas corpus 5 proceeding, the Court must determine whether any rational trier of 6 fact could have found the essential elements of the crime beyond a 7 reasonable doubt. 8 3092, 3102-03, 111 L. Ed. 2d 606 (1990) (internal quotations and 9 citation omitted); Jackson v. Virginia, 443 U.S. 307, 319, 99 S. Ct. Lewis v. Jeffers, 497 U.S. 764, 781, 110 S. Ct. 10 2781, 2789, 61 L. Ed. 2d 560 (1979). All evidence must be considered 11 in the light most favorable to the prosecution, Jeffers, 497 U.S. at 12 782, 110 S. Ct. at 3103; Jackson, 443 U.S. at 319, 99 S. Ct. at 2789, 13 and if the facts support conflicting inferences, reviewing courts 14 must presume -- even if it does not affirmatively appear in the 15 record -- that the trier of fact resolved any such conflicts in favor 16 of the prosecution, and must defer to that resolution. 17 U.S. at 326, 99 S. Ct. at 2793; McDaniel v. Brown, __ U.S. __, 130 18 S. Ct. 665, 673, 175 L. Ed. 2d 582 (2010); Bruce v. Terhune, 376 F.3d 19 950, 957 (9th Cir. 2004) (per curiam). 20 federal courts must apply the standards of Jackson with an additional 21 layer of deference. 22 2005), cert. denied, 546 U.S. 1137 (2006); Briceno v. Scribner, 555 23 F.3d 1069, 1078 (9th Cir. 2009). 24 substantive elements of the criminal offenses under state law. 25 Jackson, 443 U.S. at 324 n.16, 99 S. Ct. at 2792 n.16; Chein v. 26 Shumsky, 373 F.3d 978, 983 (9th Cir.) (en banc), cert. denied, 543 27 U.S. 956 (2004). 28 // Jackson, 443 Furthermore, under AEDPA, Juan H. v. Allen, 408 F.3d 1262, 1274 (9th Cir. These standards are applied to the 6 1 At the time of petitioner s offense, Penal Code § 12022.53(b) 2 provided that any person who, in the commission of a felony specified 3 in subdivision (a), personally uses a firearm, shall be punished by an 4 additional and consecutive term of imprisonment in the state prison 5 for 10 years. 6 enhancement to apply. 7 lists robbery, as set forth in P.C. § 211, as an offense covered by 8 subdivision (b). 9 petitioner claims the jury s finding that he personally used a firearm The firearm need not be operable or loaded for this P.C. § 12022.53(b) (2006). Subdivision (a) See P.C. § 12022.53(a)(4) (2006). Nevertheless, 10 when committing the second degree robbery is not supported by 11 substantial evidence, in part because he never threatened the clerk 12 or pointed the gun at the cashier. 13 this claim, as the California Court of Appeal found. FAP at 5. There is no merit to 14 15 16 The California Court of Appeal, in affirming petitioner s conviction, denied petitioner s insufficient evidence claim, holding: 17 18 Here, substantial evidence supported the jury s 19 determination that the object displayed by [petitioner] was 20 a gun. 21 the money in the cash register. 22 asking if [petitioner] was serious, [petitioner] withdrew 23 the object from his pocket and showed it to the clerk. 24 Obviously, [petitioner] intended the object to facilitate 25 his robbery of the clerk. 26 inference that [petitioner] knew the object was of such 27 ominous import that it would invoke fear in the clerk 28 sufficient that he would comply with [petitioner s] demand. [Petitioner] first told the clerk to give him all When the clerk replied by This factor permits the rational 7 1 This it did. The clerk testified that he was shocked and 2 scared after being confronted with the object. 3 thereafter complied with [petitioner s] command to give him 4 the money. 5 [¶] 6 was sufficient for the jury to determine that it was, 7 indeed, a gun. 8 familiarity with firearms as both his father and uncle were 9 registered gun owners. The clerk This, in itself, suggests the object was a gun. Moreover, the clerk s testimony regarding the object The clerk testified that he had some [Petitioner] held the object in his 10 open, up-faced palm within five feet of the clerk. 11 [Petitioner] showed the object to the clerk twice. 12 clerk described the gun as a small caliber weapon, silver, 13 with at least one barrel, and a trigger. 14 object appeared to be heavy. 15 only saw the object for a few seconds, he had no doubt that 16 the object was a gun. 17 there was a doubt in the clerk s mind as to whether the 18 object was a gun, the clerk replied it was a real it was 19 a gun. 20 the object was a real gun or not, the clerk responded, What 21 I saw [was] a gun. 22 incident was played to the jury, the clerk pointed out the 23 moment that [petitioner] showed him the gun. 24 testimony was credible and of solid value. 25 second guess the jury s obvious reliance upon the clerk s 26 credibility when determining that the object was, in fact, a 27 gun. 28 the video surveillance and the still photos further lends The He indicated the While he testified that he When asked by the People whether When asked by defense counsel whether he knew if [¶] When the video surveillance of the The clerk s We will not Furthermore, the introduction into evidence of 8 1 credence to the jury s determination. The videotape shows 2 [petitioner] approach the counter, remove something from his 3 pocket, and show it to the clerk. 4 videotape correspond closely with the testimony of the 5 clerk, reinforcing the accuracy of that testimony. 6 the quickness of the event and the distance of the camera 7 make it difficult to determine from the videotape alone 8 whether the object is a gun, the transpired events are 9 consistent with a rational inference that what occurred was The events of the Though 10 a robbery aided by the display of a weapon. The 11 photographic stills taken from the videotape, particularly 12 the close-up, further support the jury s determination that 13 the object was a gun. 14 palm consistent with the description given by the clerk. 15 The fact that no gun was found on [petitioner] when he was 16 apprehended or on the course of pursuit the officers engaged 17 in does not lend itself to the conclusion the object was not 18 a gun. 19 [petitioner] occurred more than two and a half hours after 20 the robbery. 21 additional half hour. 22 store with a 12-pack of beer and around $100, yet when he 23 was apprehended, he had no beer and only $25 dollars on him. 24 Thus, [petitioner] had plenty of time to dispose of the 25 weapon as he did with the beer and remaining money. 26 Finally, assuming arguendo that the object was a gun, 27 [petitioner] maintains that the evidence failed to support a 28 finding that he wielded it menacingly. They show an object in [petitioner s] Indeed, the officers initial sighting of [Petitioner] was not apprehended for an [Petitioner] left the convenience 9 The jury was [¶] 1 instructed with CALJIC No. 17.19, which indicates that 2 personal use of a weapon means that the defendant must have 3 intentionally displayed a firearm in a menacing manner, 4 intentionally fired it, or intentionally struck or hit a 5 human being with it. 6 [petitioner] fired or hit someone with the gun, [petitioner] 7 contends the evidence must show he used it menacingly. 8 find that, consistent with authorities interpreting the use 9 component of a personal use enhancement, [petitioner s] use Since no evidence was adduced that We 10 of the gun facilitated the robbery; thus, substantial 11 evidence supported the jury s finding. 12 enhancement attaches to an offense, regardless of its 13 nature, if the firearm use aids the defendant in completing 14 one of its essential elements. 15 limited to situations where the gun is pointed at the 16 victim. . . . 17 the defendant intentionally displayed a firearm in a 18 menacing manner in order to facilitate the commission of an 19 underlying crime. 20 shows a gun, or otherwise makes its presence known, and 21 there is no evidence to suggest any purpose other than 22 intimidating the victim (or others) so as to successfully 23 complete the underlying offense, the jury is entitled to 24 find a facilitative use rather than an incidental or 25 inadvertent exposure. 26 not to draw such an inference, but a failure to actually 27 point the gun, or to issue explicit threats of harm, does 28 not entitle the defendant to judicial exemption from [a [¶] A firearm use The enhancement is not Personal use of a firearm may be found where [¶] Thus when a defendant deliberately The defense may freely urge the jury 10 1 personal use enhancement]. [¶] Here, while [petitioner] 2 did not verbally threaten the clerk or point the gun at him, 3 the only apparent purpose for showing the clerk the gun was 4 to facilitate his completion of the robbery. 5 initially, [petitioner] did not display the gun when 6 demanding the clerk hand him the money in the cash register. 7 Only when encountering noncompliance from the clerk did 8 [petitioner] remove the gun from his pocket and show it to 9 the clerk. Indeed, The display of the gun accomplished its apparent 10 purpose. The clerk became shocked and scared and complied 11 with [petitioner s] demand to turn over the cash. 12 [petitioner] was free to argue, and in fact did argue, that 13 the jury should find the display of the gun incidental to 14 the robbery, the jury was under no obligation to so find. 15 The manner and timing of [petitioner s] exhibition of the 16 gun as recounted by the clerk and viewed in the videotape 17 amounts to substantial evidence that [petitioner] used it to 18 facilitate the robbery. 19 the personal use enhancement was proper. While Therefore, the jury s finding on 20 21 Lodgment no. 5 at 4-8 (citations omitted; emphasis added). 22 23 The testimony of a single witness is sufficient to uphold a 24 conviction, Bruce, 376 F.3d at 957-58, and a federal court in a habeas 25 corpus proceeding cannot redetermine the credibility of a witness when 26 it has not observed the demeanor of the witness. 27 Lonberger, 459 U.S. 422, 434, 103 S. Ct. 843, 851, 74 L. Ed. 2d 646 28 (l983); see also Schlup v. Delo, 513 U.S. 298, 330, 115 S. Ct. 851, 11 Marshall v. 1 868, 130 L. Ed. 2d 808 (1995) ( [U]nder Jackson, the assessment of the 2 credibility of witnesses is generally beyond the scope of review. ). 3 Rather, [t]he reviewing court must respect the province of the 4 [factfinder] to determine the credibility of witnesses, resolve 5 evidentiary conflicts, and draw reasonable inferences from proven 6 facts by assuming that the [factfinder] resolved all conflicts in a 7 manner that supports the verdict. 8 (9th Cir. 1997) (quoting Walters v. Maass, 45 F.3d 1355, 1358 (9th 9 Cir. 1995)). Jones v. Wood, 114 F.3d 1002, 1008 Moreover, [c]ircumstantial evidence and reasonable 10 inferences drawn from it may properly form the basis of a conviction. 11 Schad v. Ryan, 606 F.3d 1022, 1038 (9th Cir. 2010), pet. for cert. 12 filed, 79 USLW 3129 (Aug. 27, 2010); Walters, 45 F.3d at 1358. 13 14 Here, since the petitioner has not rebutted the California Court 15 of Appeal s factual findings with clear and convincing evidence, this 16 Court presume[s] that the state court s findings of fact are correct 17 . . . [and] rel[ies] on the state court s recitation of the facts. 18 Tilcock v. Budge, 538 F.3d 1138, 1141 (9th Cir. 2008) (citations 19 omitted), cert. denied, 129 S. Ct. 926 (2009). 20 not altered by the fact that the finding was made by a state court of 21 appeals, rather than by a state trial court. 22 F.3d 1082, 1087 (9th Cir. 2001), amended by, 253 F.3d 1150 (9th Cir. 23 2001); Pollard v. Garcia, 290 F.3d 1030, 1035 (9th Cir.), cert. 24 denied, 537 U.S. 981 (2002). 25 testimony, which fully supports the determination that petitioner 26 showed the clerk a gun to convince him to turn over to petitioner the 27 money in the store s cash register, and that petitioner s actions 28 shocked and scared the clerk, see Reporter s Transcript ( RT ) This presumption is Bragg v. Galaza, 242 Accordingly, given the store clerk s 12 1 58:5-74:3, there was more than sufficient evidence to support the P.C. 2 § 12022.53(b) enhancement. 3 1030, 1042 (C.D. Cal. 2008) ( [A]lthough no firearm was recovered, the 4 victims testimony describing the guns and the manner in which they 5 were used during the robberies amounted to sufficient evidence . . . 6 to conclude beyond a reasonable doubt that petitioner personally used 7 a firearm within the meaning of [P.C.] § 12022.53(b). ); Brown v. 8 Curry, 2010 WL 597980, *5 (N.D. Cal.) ( [A]lthough no firearm was 9 recovered, the victims testimony describing the weapon and the manner See Bovarie v. Giurbino, 558 F. Supp. 2d 10 in which it was used during the crime was sufficient evidence to 11 enable a reasonable juror to conclude beyond a reasonable doubt that 12 Petitioner personally used a firearm within the meaning of § . . . 13 12022.53(b). ); People v. Monjaras, 164 Cal. App. 4th 1432, 1437, 79 14 Cal. Rptr. 3d 926 (2008) ( [W]hen as here a defendant commits a 15 robbery by displaying an object that looks like a gun, the object s 16 appearance and the defendant s conduct and words in using it may 17 constitute sufficient circumstantial evidence to support a finding 18 that it was a firearm within the meaning of section 12022.53, 19 subdivision (b). ); People v. Dominguez, 38 Cal. App. 4th 410, 421, 45 20 Cal. Rptr. 2d 153 (1995) ( The evidence is sufficient to prove the use 21 of a firearm where there is some type of display of the weapon, 22 coupled with a threat to use it which produces fear of harm in the 23 victim. ). 24 Accordingly, the California Supreme Court s denial of 25 26 // 27 // 28 // 13 1 petitioner s claim was neither contrary to, nor an unreasonable 2 application of, clearly established federal law. 3 ORDER 4 1. 5 6 Judgment shall be entered denying the habeas corpus petition and dismissing the action with prejudice. 7 8 9 2. This Court finds an appeal would not be taken in good faith, and that petitioner has not made a substantial showing that he has 10 been denied a constitutional right for the reasons set forth herein; 11 thus, a certificate of appealability should not issue under 12 28 U.S.C. § 2253(c)(2) and Fed. R. App. P. 22(b). 13 529 U.S. 473, 483, 120 S. Ct. 1595, 1604, 146 L. Ed. 2d 542 (2000); 14 Mayfield v. Calderon, 270 F.3d 915, 922 (9th Cir. 2001) (en banc). Slack v. McDaniel, 15 16 17 3. The Clerk of Court shall notify petitioner of this Opinion and Order. 18 19 DATE: November 12, 2010 20 21 /S/ ROSALYN M. CHAPMAN ROSALYN M. CHAPMAN UNITED STATES MAGISTRATE JUDGE R&R\09-0870.mdo 11/12/10 22 23 24 25 26 27 28 14

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