Kimber v. Foulk, No. 3:2008cv02062 - Document 14 (N.D. Cal. 2009)
Court Description: ORDER DENYING PETITION FOR A WRIT OF HABEAS CORPUS AND DENYING CERTIFICATE OF APPEALABILITY. Signed by Judge Jeffrey S. White on 12/11/09. (jjo, COURT STAFF) (Filed on 12/11/2009)
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Kimber v. Foulk Doc. 14 1 2 3 4 5 IN THE UNITED STATES DISTRICT COURT 6 FOR THE NORTHERN DISTRICT OF CALIFORNIA 7 8 9 10 11 12 13 ) ) Petitioner, ) ) vs. ) ) ) ED FOULK, Executive Director, Napa ) State Hospital, ) ) Respondent. ) CURTIS KIMBER, No. C 08-2062 JSW (PR) ORDER DENYING PETITION FOR A WRIT OF HABEAS CORPUS AND DENYING CERTIFICATE OF APPEALABILITY 14 15 INTRODUCTION 16 This is a habeas case filed pro se by a person presently confined at the Napa State 17 Hospital. The petition is directed to a revocation of probation and the consequent prison 18 sentence imposed on February 22, 2007. This Court ordered Respondent to show cause 19 why a writ should not issue. Respondent filed an answer and a memorandum of points 20 and authorities in support of the answer. He also lodged the record with the court. 21 22 23 24 Petitioner has filed a traverse. For the reasons stated below, the petition is denied on the merits. BACKGROUND In 2003 Petitioner pled guilty to a charge of assault by means of force likely to 25 produce great bodily injury and was sentenced to three years of probation. The person 26 27 28 who was injured was a “psych tech” at Napa State Hospital. (See Ex. B, RT 11/6/03 at 5.) Petitioner apparently was confined there on a mental health conservatorship at the Dockets.Justia.com 1 time of the incident. (Id. at 7.) 2 On September 28, 2005, the Napa County prosecutor filed a petition to revoke 3 Petitioner’s probation. On January 20, 2006, the prosecutor filed another petition to 4 revoke probation, based on a different incident than that which gave rise to the 5 September petition. After a suspension of proceedings for restoration of competency, the 6 two petitions to revoke probation were tried and on January 17, 2007, were sustained. 7 (Ex. B, RT 1/17/09.) On February 22, 2007, Petitioner was sentenced to two years in 8 state prison, with credit for time in custody of 616 days. It is this judgment he attacks 9 here. 10 11 Petitioner’s state habeas petitions in the California Court of Appeal and the California Supreme Court were denied. 12 13 14 DISCUSSION A. Standard of Review The Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”), codified 15 under 28 U.S.C. § 2254, provides “the exclusive vehicle for a habeas petition by a state 16 prisoner in custody pursuant to a state court judgment, even when the Petitioner is not 17 challenging his underlying state court conviction.” White v. Lambert, 370 F.3d 1002, 18 1009-10 (9th Cir. 2004). Under the AEDPA, this court may entertain a petition for 19 habeas relief on behalf of a California state inmate “only on the ground that he is in 20 custody in violation of the Constitution or laws or treaties of the United States." 28 21 U.S.C. § 2254(a). 22 The writ may not be granted unless the state court’s adjudication of any claim on 23 the merits: “(1) resulted in a decision that was contrary to, or involved an unreasonable 24 application of, clearly established Federal law, as determined by the Supreme Court of 25 the United States; or (2) resulted in a decision that was based on an unreasonable 26 determination of the facts in light of the evidence presented in the State court 27 proceeding.” Id. at § 2254(d). Under this deferential standard, federal habeas relief will 28 not be granted “simply because [this] court concludes in its independent judgment that 2 1 the relevant state-court decision applied clearly established federal law erroneously or 2 incorrectly. Rather, that application must also be unreasonable.” Williams v. Taylor, 529 3 U.S. 362, 411 (2000). 4 While circuit law may provide persuasive authority in determining whether the 5 state court made an unreasonable application of Supreme Court precedent, the only 6 definitive source of clearly established federal law under 28 U.S.C. § 2254(d) is in the 7 holdings (as opposed to the dicta) of the Supreme Court as of the time of the state court 8 decision. Id. at 412; Clark v. Murphy, 331 F.3d 1062, 1069 (9th Cir. 2003). 9 B. Evidentiary Hearing 10 Petitioner asks for an evidentiary hearing in his petition and in his traverse. 11 An evidentiary hearing is held in federal habeas cases only under the most limited 12 circumstances. Baja v. Ducharme, 187 F.3d 1075, 1077-79 (9th Cir. 1999). An 13 evidentiary hearing on a claim for which the Petitioner failed to develop a factual basis in 14 state court can be held only if Petitioner shows that: (1) the claim relies either on (a) a 15 new rule of constitutional law that the Supreme Court has made retroactive to cases on 16 collateral review, or (b) a factual predicate that could not have been previously 17 discovered through the exercise of due diligence, and (2) the facts underlying the claim 18 would be sufficient to establish by clear and convincing evidence that but for 19 constitutional error, no reasonable fact finder would have found the applicant guilty of 20 the underlying offense. 28 U.S.C. § 2254(e)(2)(A)-(B). In short, if Petitioner did not 21 attempt to present in state court the facts he wishes to present now, for instance by 22 attempting to develop them in his state habeas proceedings, he cannot do so now unless 23 he can show that he meets the provisions of section 2254(e)(2) outlined above. 24 A prisoner "fails" to develop the factual basis of a claim, triggering § 2254(e)(2), 25 if "there is lack of diligence, or some greater fault, attributable to the prisoner or the 26 prisoner's counsel." Williams (Michael) v. Taylor, 529 U.S. 420, 432 (2000). "Diligence 27 will require in the usual case that the prisoner, at a minimum, seek an evidentiary hearing 28 in state court in the manner prescribed by state law." Id. at 437. Accordingly, where the 3 1 prisoner has met the burden of showing he was diligent in efforts to develop the facts 2 supporting his claims in state court, an evidentiary hearing may be held without regard to 3 whether the "stringent" requirements of § 2254(e)(2) apply. Id. at 437; Jaramillo v. 4 Stewart, 340 F.3d 877, 882 (9th Cir. 2003); Jones v. Wood, 114 F.3d 1002, 1013 (9th 5 Cir. 1997). 6 It is Petitioner's burden to show that he attempted to develop the facts in state 7 court but was prevented from doing so, for instance by showing that the state court 8 denied a request for an evidentiary hearing. Hutchison v. Bell, 303 F.3d 720, 747 (6th 9 Cir. 2002) (requiring Petitioner to demonstrate "sufficient diligence"); Baja, 187 F.3d at 10 1078-79. 11 Petitioner has not presented any information showing that he acted with due 12 diligence in attempting to develop the facts in state court, whether by requesting an 13 evidentiary hearing in state court or submitting declarations there. He thus has failed to 14 develop facts in state court, and because he has not attempted to show that the exceptions 15 of Section 2254(e)(2)(A)-(B) apply to him, is not entitled to an evidentiary hearing. 16 Furthermore, Petitioner provides only conclusory contentions as to what he 17 expects to show if a hearing were to be held, rather than alleging facts. Thus, even if he 18 had not failed to show that he attempted to develop the facts in state court and was 19 prevented from doing so, he has not shown an entitlement to an evidentiary hearing 20 under the pre-AEDPA standard. See Williams v. Calderon, 52 F.3d 1465, 1484 (9th Cir. 21 1995) (to establish right to evidentiary hearing, Petitioner must provide allegations of 22 fact that, if proven, would establish right to relief). 23 24 The motion for an evidentiary hearing will be denied. C. Merits 25 As grounds for habeas relief Petitioner contends: (1) he was the victim of 26 vindictive and selective prosecution; (2) his right to appeal was violated; (3) his lack of 27 mental capacity shows that the prosecution must have been retaliatory; and (4) his 28 appellate counsel was ineffective. 4 1 1. 2 Petitioner contends that he was prosecuted because his mother campaigned 3 publically against abuses she perceived in the mental health care system. Because 4 Petitioner is not alleging that the prosecution was motivated by anything he did, as 5 opposed to the actions of someone else, this is not a vindictive prosecution claim, but 6 rather is for selective prosecution. See Bordenkircher v. Hayes, 434 U.S. 357, 363 (1978) 7 (“vindictive prosecution” is when charges are brought to punish the defendant for his or 8 her exercise of a constitutional or statutory right). 9 Vindictive or Selective Prosecution Petitioner presents nothing but speculative allegations that he was prosecuted 10 because of his mother’s activities. Unsupported allegations of selective prosecution are 11 not enough. United States v. Davis, 36 F.3d 1424, 1433 (9th Cir. 1994); see also United 12 States v. Buffington, 815 F.2d 1292, 1305 (9th Cir. 1987) (speculation of selectivity by 13 black defendant previously acquitted of officer's murder, without additional proof, 14 insufficient to establish selective prosecution). Petitioner’s conclusory allegations are not 15 sufficient to overcome the presumption that the prosecutor properly discharged his or her 16 official duties. See United States v. Armstrong, 517 U.S. 456, 463 (1996) (presumption). 17 This claim is without merit. 18 2. 19 Petitioner contends that his due process rights were violated when he was not able 20 21 Right to Appeal to appeal. The Constitution does not require states to grant appeals as of right to criminal 22 defendants seeking to review alleged trial court errors. Evitts v. Lucey, 469 U.S. 387, 393 23 (1985) (citation omitted). However, if a state creates a system for appellate review, the 24 procedures must comport with the demands of constitutional due process and equal 25 protection. Id. 26 Petitioner says that his mother mailed a timely notice of appeal and request for a 27 certificate of probable cause to the Napa County Superior Court, and when that court 28 failed to file the documents and did not respond, Petitioner’s mother “mailed another 5 1 notice.” (Pet. at 7.) He asserts that the mailing of these two documents is proved by 2 copies of certified mail receipts provided with his petition. (Id.) He says that the superior 3 court forwarded the second notice to the California Court of Appeal, which opened case 4 number A119266 and appointed counsel. When counsel did nothing, Petitioner’s mother 5 petitioned the court of appeal to allow the appeal, but “the petition” was denied without 6 comment. (Id.) 7 Petitioner was sentenced to prison in the revocation case on February 22, 2007. He 8 thus had until and including April 23, 2007, to file a notice of appeal with the Superior 9 Court. See Cal. R. Ct. 8.308(a) (60 days from entry of judgment to file appeal in criminal 10 11 case). Petitioner claims that his mother filed a timely notice of appeal, but a review of the 12 attachments to the petition shows that this is a misstatement. The earliest of the certified 13 mail receipts showing mail addressed to the Napa Superior Court carries a mailing date of 14 April 24, 2007. Attached to it is a letter dated April 19, 2007, addressed to the Napa 15 County Superior Court. In it Petitioner’s mother says that she sent a notice of appeal to 16 Petitioner at San Quentin, with instructions for him to sign it and return it to her for filing 17 with the court. She says that she did not receive the receipt back showing that the 18 documents had been received at San Quentin, nor did her son send her the signed notice 19 of appeal. She asks that the court hold her son to less stringent standards than lawyers 20 and that it appoint counsel for him. This does not show that Petitioner (or his mother) 21 mailed a notice of appeal to the Napa County Superior Court within the time to appeal, 22 and contrary to Petitioner’s suggestion, the “mailbox” rule does not apply when, as here, 23 the prisoner has not delivered to prison authorities a document for filing with the court. 24 See Stillman v. LaMarque, 319 F.3d 1199, 1201 (9th Cir. 2003). In her letter dated July 25 16, 2007, Petitioner’s mother describes her letter dated April 19, 2007, as an “inquiry,” 26 which is consistent with its not having been a notice of appeal. 27 28 Petitioner says in his petition that the superior court forwarded his second notice of appeal to the court of appeals, which opened case number A119266 and appointed 6 1 counsel. The attachments to the petition show that what Petitioner refers to as the second 2 notice of appeal was a document headed “Petition to Enforce Disabled Person’s Right to 3 Appeal.” The California Court of Appeal treated it as a petition for habeas corpus and 4 denied it. And although it does not seem to have any bearing on this claim, Petitioner has 5 not provided any evidence to support his contention that the court of appeal appointed 6 counsel, no order appointing counsel appears on the docket of that case, and the docket 7 does not show an appearance by any lawyer for Petitioner – it lists him as “pro per.” 8 Nothing in this was a violation of due process. 9 Petitioner has not established that he filed a notice of appeal within the time 10 allowed to do so under California law. His claim that his due process rights were violated 11 with regard to his attempt to appeal is without merit. 12 3. 13 For his third issue, Petitioner states that: “Defense counsel and the trial court 14 acknowledge on the record at sentencing that the doctors who examined me opined that ‘it 15 does not appear that I had the mental facilities [sic] to comply with probation terms,’ and 16 noted that I have brain damage and I should not be sentenced to prison or even tried.” 17 (Pet. at 8.) In his statement of facts supporting the claim he contends that his prosecution 18 was in retaliation for his mother’s activities, a claim dealt with above, and that the 19 prosecution thus violated his due process and equal protection rights. This claim 20 duplicates claim one, above, and is without merit for the reasons discussed there. Mental Capacity 21 4. 22 Petitioner contends that his appellate counsel was ineffective. There is no 23 evidence that Petitioner had either an appellate case or appellate counsel. The court of 24 appeal treated his “Petition to Enforce Disabled Person’s Right to Appeal” as a petition 25 for habeas corpus and denied it, without appointing counsel. No other case by Petitioner 26 appears on its docket. This claim is without merit. 27 /// 28 /// Ineffective Assistance of Appellate Counsel 7 1 2 D. Certificate of Appealability The federal rules governing habeas cases brought by state prisoners have recently 3 been amended to require a district court that denies a habeas petition to grant or deny a 4 certificate of appealability in the ruling. See Rule 11(a), Rules Governing § 2254 Cases, 5 28 U.S.C. foll. § 2254 (effective December 1, 2009). 6 A petitioner may not appeal a final order in a federal habeas corpus proceeding 7 without first obtaining a certificate of appealability (formerly known as a certificate of 8 probable cause to appeal). See 28 U.S.C. § 2253(c); Fed. R. App. P. 22(b). A judge shall 9 grant a certificate of appealability "only if the applicant has made a substantial showing of 10 the denial of a constitutional right." 28 U.S.C. § 2253(c)(2). The certificate must indicate 11 which issues satisfy this standard. See id. § 2253(c)(3). “Where a district court has 12 rejected the constitutional claims on the merits, the showing required to satisfy § 2253(c) 13 is straightforward: the petitioner must demonstrate that reasonable jurists would find the 14 district court’s assessment of the constitutional claims debatable or wrong.” Slack v. 15 McDaniel, 120 S.Ct. 1595, 1604 (2000). 16 17 For the reasons set out above, jurists of reason would not find the result debatable. A certificate of appealability will be denied. 18 19 CONCLUSION Petitioner’s requests for an evidentiary hearing are DENIED. The petition for a 20 writ of habeas corpus is DENIED, and the Court declines to issue a certificate of 21 appealability. The Clerk shall close the file. 22 IT IS SO ORDERED. 23 24 25 26 DATED: December 11, 2009 JEFFREY S. WHITE United States District Judge 27 28 8 1 UNITED STATES DISTRICT COURT 2 FOR THE 3 NORTHERN DISTRICT OF CALIFORNIA 4 5 6 CURTIS KIMBER, Plaintiff, 7 8 9 10 Case Number: CV08-02062 JSW CERTIFICATE OF SERVICE v. ED FOULK et al, Defendant. / 11 12 13 14 15 I, the undersigned, hereby certify that I am an employee in the Office of the Clerk, U.S. District Court, Northern District of California. That on December 11, 2009, I SERVED a true and correct copy(ies) of the attached, by placing said copy(ies) in a postage paid envelope addressed to the person(s) hereinafter listed, by depositing said envelope in the U.S. Mail, or by placing said copy(ies) into an inter-office delivery receptacle located in the Clerk's office. 16 17 18 19 Curtis M. Kimber NA 202929-6 C/O Ann P. Williams 2251 Nobili Ave Santa Clara, CA 95051 20 21 22 Dated: December 11, 2009 Richard W. Wieking, Clerk By: Jennifer Ottolini, Deputy Clerk 23 24 25 26 27 28 G:\JSWALL\Pro-Se Prisoner\2008\Kimber2062.ruling.frm
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