Vigil v. McDonald, No. 3:2009cv04994 - Document 17 (N.D. Cal. 2010)
Court Description: ORDER Denying 1 Petition for Writ of Habeas Corpus filed by David Vigil; Denying 15 Petitioner's Renewed Motion for Appointment of Counsel; Granting 15 Petitioner's Renewed Motion For Leave to Proceed In Forma Pauperis. Signed by Judge Thelton E. Henderson on 8/3/10. (tehlc4, COURT STAFF) (Filed on 8/3/2010)
Download PDF
<![CDATA[
Vigil v. McDonald Doc. 17 1 IN THE UNITED STATES DISTRICT COURT 2 FOR THE NORTHERN DISTRICT OF CALIFORNIA 3 4 5 DAVID VIGIL, 6 Petitioner, 7 8 v. MIKE McDONALD, Warden, 9 Respondent. ORDER DENYING PETITION FOR WRIT OF HABEAS CORPUS; DENYING APPOINTMENT OF COUNSEL; GRANTING LEAVE TO PROCEED IN FORMA PAUPERIS 11 For the Northern District of California United States District Court 10 NO. C09-4994 TEH 12 Petitioner David Vigil (“Petitioner”) is currently incarcerated by the California 13 Department of Corrections and Rehabilitation at High Desert State Prison in Susanville, 14 California. He filed a petition for writ of habeas corpus, pursuant to 28 U.S.C. § 2254, 15 before this Court on October 20, 2009. After conducting an initial review of the petition, the 16 Court ordered Respondent Mike McDonald (“Respondent”) to show cause as to why the writ 17 should not be granted. Respondent filed an answer on June 1, 2010, and Petitioner filed a 18 traverse on June 8, 2010. Petitioner requests that the case be set for an evidentiary hearing 19 or, in the alternative, for oral argument; he also renews his motions for appointment of 20 counsel and his applications for leave to proceed in forma pauperis, which this Court denied 21 on December 2, 2009.1 After carefully reviewing the parties’ written arguments, the record, 22 and the governing law, the Court now DENIES the petition for the reasons set forth below. 23 The Court also DENIES the renewed request for appointment of counsel and GRANTS leave 24 to proceed in forma pauperis. 25 26 27 1 The motions for appointment of counsel were denied without prejudice; the applications for leave to proceed in forma pauperis were denied as moot, as Petitioner had 28 already paid the filing fee. Dockets.Justia.com 1 BACKGROUND 2 On April 5, 2006, Petitioner was charged with making criminal threats (Cal. Pen. 3 Code § 422) and resisting arrest (Cal. Pen. Code § 148(a)(1)) in a felony complaint filed in 4 Santa Clara County Superior Court. Two prior convictions for serious felonies were also 5 alleged, based on convictions for robbery (Cal. Pen. Code § 211) and assault with a deadly 6 weapon (Cal. Pen. Code § 245(a)(1)). On October 12, 2006, Petitioner entered a plea of no 7 contest to both charges and admitted the two prior convictions, in exchange for which the 8 State agreed not to seek sentencing enhancements for additional prior convictions or the use 9 of a knife. The two prior convictions subjected Petitioner to California’s Three Strikes Law, 11 which governs sentencing when a defendant is convicted of a felony and has one or more For the Northern District of California United States District Court 10 12 prior felony convictions that are “violent” or “serious” in nature. Cal. Pen. Code § 667(b), 13 (d); see also id. § 1170.12.2 Prior to sentencing, Petitioner moved to dismiss one of his two 14 strike priors pursuant to People v. Superior Court (Romero), 13 Cal. 4th 497, 504 (1996), in 15 which the California Supreme Court held that a sentencing court may “strike prior felony 16 conviction allegations in cases arising under” the Three Strikes Law.3 The trial court denied 17 the motion on June 11, 2007, sentencing Petitioner to 25 years to life in state prison. See Cal. 18 Pen. Code § 667(e)(2)(A). 19 In sentencing Petitioner, the trial court relied on the summary of Petitioner’s offense 20 that appeared in his probation officer’s report. Early in the evening of March 30, 2006, 21 22 2 The Three Strikes Law was passed in 1994 by the state Legislature, and codified as subdivisions (b) through (i) of section 667 of the California Penal Code. Another version of 23 the law, which was approved later that year by the state’s voters through the initiative process, appears at section 1170.12. See People v. Superior Court (Romero), 13 Cal. 4th 24 497, 504-06 (1996) (explaining history of Three Strikes Law’s passage). The two statutes differ only “in minor respects.” Id. 25 3 The sentencing court’s authority to strike a prior conviction is derived from section 26 1385(a) of the California Penal Code, which allows a judge, “in the furtherance of justice,” to “order an action to be dismissed.” The California Supreme Court has construed this 27 provision “as permitting a judge to dismiss not only an entire case, but also a part thereof, including the allegation that a defendant has previously been convicted of a felony.” 28 Romero, 13 Cal. 4th at 508 (citing People v. Thomas, 4 Cal. 4th 206, 209-10 (1992)). 2 1 Petitioner confronted his girlfriend, Jennifer Scaggs, and her two children at a convenience 2 store, where he accused her of cheating on him with another man. Petitioner had been dating 3 Scaggs for about two years, and – although she had obtained a restraining order against him – 4 had been living with her since September 2005. According to the probation report, “he 5 pulled out a steak knife, and while holding it again her stomach, stated, ‘I’ll kill you, you f--6 --g bitch.” State Court Clerk’s Transcript (“CT”) at 38. Scaggs was able to return to her car 7 and drive her children home, where she locked the door and began calling 911. Petitioner 8 then arrived and entered the house by breaking a living room window with his fist; he took 9 the phone from Scaggs when she told him she was calling the police. She retreated into a 11 For the Northern District of California United States District Court 10 bedroom with her children, found another phone, and stepped outside the house to redial 911. Officers had already arrived by then in response to a neighbor’s call. After speaking 12 to Scaggs, the officers saw Petitioner step onto the balcony of the second-floor apartment; 13 they asked him to come down and talk, but he instead returned inside and locked the door. 14 The officers, having been told that children were in the apartment, kicked in the door and 15 found Petitioner crawling out through the bathroom window. They grabbed his legs and 16 attempted to pull him inside, but he resisted. They were ultimately able to get him into the 17 bathroom and subdue him. 18 The probation report also conveyed a statement from Petitioner, based on an interview 19 in jail. Petitioner denied ever brandishing or even possessing a knife when he confronted 20 Scaggs outside the convenience store. He also characterized the breaking of the window as 21 an accident: he had been standing on an empty five-gallon paint container to turn off an 22 outside light, but lost his balance and fell against the front window, breaking it. 23 Petitioner’s first strike was for a robbery (Cal. Pen. Code § 211). Petitioner was one 24 of two assailants who grabbed a 14-year-old boy from behind, threw him to the ground, and 25 hit and kicked him before taking his portable radio and fleeing in a car.4 On January 28, 26 27 4 According to the statement of mitigation filed on Petitioner’s behalf for the Romero hearing, two friends had taken the radio while Petitioner was merely a passenger in the same 28 car. CT 15. 3 1 1983, he was sentenced six months in county jail, placed on three years’ probation, and 2 ordered to complete 200 hours of community service. He was sentenced to a one-year jail 3 term on June 29, 1984, for violating probation. His second strike was for stabbing a man in 4 the side during a fight that erupted at a family party in the summer of 1988. Petitioner was 5 convicted of assault with a deadly weapon, Cal. Pen. Code § 245(a)(1), with an enhancement 6 based on the use of a knife, id. § 12022(b). He was committed to state prison for a four-year 7 term. 8 The trial court held a Romero hearing on June 11, 2007, to determine whether to strike 9 any of Petitioner’s prior felonies and thereby sentence him “to something less than 25 years 11 Vaughn (“trial counsel”), stressed that Petitioner had committed the latest of the two prior For the Northern District of California United States District Court 10 to life.” State Court Reporter’s Transcript (“RT”) at 23. Petitioner’s trial counsel, John 12 felonies nearly two decades earlier, at the age of 25; at the time of the first felony, he was 19. 13 His conduct since that time, “while serious[,] has not been as serious as the conduct alleged 14 in his youth.” Id. at 25. Trial counsel acknowledged a factual dispute but declined to raise it: 15 “As a practical matter, there is a dispute as to what th[e] facts [underlying the offense] 16 actually are, but without quibbling there was an admission of guilt that brings us here today.” 17 Id. at 24. The sentence proposed by the State was, he argued, “for the worst of the worst,” a 18 category that did not include Petitioner. Id. at 26. The State asserted in response that 19 Petitioner’s “background is horrendous and violent,” and that he “is the worst of the worst 20 barring murderers and sex offenders.” Id. at 28. 21 The trial court, in ruling on the Romero motion, stated that the Three Strikes Law sets 22 a “presumptive sentence” of 25 years to life, and that Petitioner had the burden of showing 23 “reasons to depart” from that sentence. Id. at 33. Petitioner failed to meet that burden: 24 25 26 I’ve gone through the probation report and sadly have come to the conclusion that in this case I do not find any facts or circumstances that would warrant me exercising my discretion that would bear any semblance to a reasonable exercise of discretion, and for those reasons I’m going to deny the motion. 27 RT 34. The episode “had to be a nightmare to the victim,” the trial court observed, 28 characterizing it as follows: 4 1 2 3 4 5 6 It occurred out in public where a knife was held against her stomach, and there [were] threats made to her to kill her. She went home alone or with the children rather and then the breaking and entering starts, and the defendant had to be forcibly removed from the roof to get him back in the house. I would have probably given some credence and lessen the severity of this particular offense but in the probation report the defendant denied using a knife and indicated that he broke the glass accidentally. That did not measure with me well in terms of acceptance of responsibility and struck me as being somewhat not asking for the kind of help that the court could give. 7 Id. at 34. Although the court agreed with trial counsel that the “present offense” was “an in8 between type of case,” the court declared that “it would be an abuse of my discretion just 9 based solely on the offense in this particular case itself to grant” the Romero motion. Id. at 11 felonies on Petitioner’s record; his repeated domestic violence cases and violations of parole; For the Northern District of California United States District Court 10 35. Among the factors weighed by the trial court were the 39 misdemeanors and four 12 his “intolerance of authority,” which “makes . . . his prospects dim”; and his failure to take 13 advantage of previous opportunities to “try to straighten out his life.” Id. at 35-36. The trial 14 court therefore concluded that it was “duty bound” to deny the motion and impose the “very 15 heavy sanction” of a sentence of 25 years to life. Id. at 37. 16 The California Court of Appeal affirmed the judgment in an unpublished opinion. 17 Petitioner filed a petition for writ of habeas corpus in state court, which the Santa Clara 18 County Superior Court denied on October 22, 2008. The California Court of Appeal 19 summarily denied Petitioner habeas relief on November 26, 2008, and the California 20 Supreme Court denied review on January 28, 2009. Petitioner filed the instant federal 21 petition on October 20, 2009. 22 23 STANDARD OF REVIEW 24 Under the Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”), this 25 Court cannot grant a writ of habeas corpus with respect to any claim that was adjudicated on 26 the merits in state court unless the state court’s adjudication of the claim: 27 28 (1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States; or 5 1 2 (2) resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding. 3 28 U.S.C. § 2254(d). A state court’s decision is “contrary to” clearly established Supreme 4 Court law if it fails to apply the correct controlling authority, or if it applies the controlling 5 authority to a case involving materially indistinguishable facts but reaches a different result. 6 Williams v. Taylor, 529 U.S. 362, 412-13 (2000). A decision is an “unreasonable 7 application” of Supreme Court law if “the state court identifies the correct governing legal 8 principle . . . but unreasonably applies that principle to the facts of the prisoner’s case.” Id. 9 at 413. Holdings of the Supreme Court at the time of the state court decision are the only 11 definitive source of clearly established federal law under AEDPA. Williams, 529 U.S. at For the Northern District of California United States District Court 10 12 412. “While circuit law may be ‘persuasive authority’ for purposes of determining whether a 13 state court decision is an unreasonable application of Supreme Court law, only the Supreme 14 Court’s holdings are binding on the state courts and only those holdings need be reasonably 15 applied.” Clark v. Murphy, 331 F.3d 1062, 1069 (9th Cir. 2003) (citation omitted). 16 “[A] federal habeas court may not issue the writ simply because that court concludes 17 in its independent judgment that the relevant state-court decision applied clearly established 18 federal law erroneously or incorrectly. Rather, that application must be objectively 19 unreasonable.” Lockyer v. Andrade, 538 U.S. 63, 75-76 (2003) (internal quotation marks and 20 citation omitted). Moreover, in conducting its analysis, the federal court must presume the 21 correctness of the state court’s factual findings, and the petitioner bears the burden of 22 rebutting that presumption by clear and convincing evidence. 28 U.S.C § 2254(e)(1). 23 When applying these standards, the federal court should review the “last reasoned 24 decision” by the state courts. Avila v. Galaza, 297 F.3d 911, 918 (9th Cir. 2002). Because 25 the California Court of Appeal and the California Supreme Court summarily denied relief, 26 this Court looks to the written decision of the state superior court denying Petitioner’s 27 request for habeas relief. 28 6 1 DISCUSSION 2 Petitioner claims that he was denied the effective assistance of counsel at sentencing 3 in violation of the Sixth and Fourteenth Amendments, because trial counsel failed to 4 introduce evidence that Scaggs was unsure whether Petitioner held a knife when he accosted 5 her outside the convenience store. He seeks a new sentencing hearing. 6 The Sixth Amendment guarantees a criminal defendant the effective assistance of 7 counsel. A defendant is deprived of that guarantee where “counsel’s conduct so undermined 8 the proper functioning of the adversarial process that the trial cannot be relied on as having 9 produced a just result.” Strickland v. Washington, 466 U.S. 668, 686 (1984). A petitioner 11 and prejudice to the defense. Performance is deficient where it falls “below an objective For the Northern District of California United States District Court 10 raising an ineffective assistance claim must show the deficiency of counsel’s performance 12 standard of reasonableness,” with reasonableness assessed according to “prevailing 13 professional norms.” Id. at 688. Counsel’s “strategic choices made after thorough 14 investigation of law and facts relevant to plausible options are virtually unchallengeable,” 15 while “strategic choices made after less than complete investigation are reasonable precisely 16 to the extent that reasonable professional judgments support the limitations on investigation.” 17 Id. at 690-91. Prejudice occurs where “there is a reasonable probability that, but for 18 counsel’s unprofessional errors, the result of the proceeding would have been different.” Id. 19 at 694. “A reasonable probability is a probability sufficient to undermine confidence in the 20 outcome.” Id. A reviewing court may “dispose of an ineffectiveness claim on the ground of 21 lack of sufficient prejudice” without determining “whether counsel’s performance was 22 deficient.” Id. at 697. 23 In an interview with an investigator for the Santa Clara County Public Defender, 24 Scaggs explained that she did not see the sharp object that Petitioner held against her. The 25 investigator recounted the interview as follows in a report dated May 5, 2006: 26 27 28 She felt a sharp object on her side. She did not see what it was. She’s guessing it could have been one of her steak knives or it could have been a pen. She does not know. She did not see the sharp object. It did not cut her, nor did it go through her clothing. 7 1 Exh. A to Exh. 4. This statement, Petitioner argues, should have been presented at the 2 Romero hearing. Trial counsel’s failure to do so prevented Petitioner from obtaining a more 3 lenient sentence, he claims, as the trial court – in its own words – “would have probably 4 given some credence and lessen the severity of this particular offense but in the probation 5 report the defendant denied using a knife and indicated that he broke the glass accidentally.” 6 RT at 34. Since Scaggs’ statement suggests that Petitioner was truthful in denying the use of 7 a knife, such evidence would “probably” have prompted the trial court to grant the Romero 8 motion, Petitioner claims. 9 The state court denied habeas relief on this claim based on Petitioner’s failure to 11 different if Ms. Scagg[s’] statement had been introduced.” Exh. 12 (Order Denying Petition For the Northern District of California United States District Court 10 “show a reasonable probability that the outcome of the Romero motion would have been 12 for Writ of Habeas Corpus) at 2. “[W]hether petitioner used a knife or other ‘sharp object’ in 13 the commission of the crime is irrelevant,” the court found, as “the nature of the threat and 14 the fear instilled in the victim is the same.” Id. at 4. In light of the other evidence considered 15 on sentencing – Petitioner’s “long and continuous criminal record,” his repeated parole 16 violations, his poor performance on probation, and his “intolerance of authority” – it was not 17 “reasonably probable” that the omitted evidence would have prompted the trial court to deem 18 Petitioner “outside the scope of the Three Strikes scheme.” Id. 19 Petitioner argues that relief is warranted because the state court’s decision “involved 20 an unreasonable application of[] clearly established Federal law, as determined by the 21 Supreme Court of the United States.” 28 U.S.C. § 2254(d)(1). However, the Strickland 22 standard was articulated in the context of capital sentencing. The Court expressly declined 23 to “consider the role of counsel in an ordinary sentencing, which may involve informal 24 proceedings and standardless discretion in the sentencer, and hence may require a different 25 approach to the definition of constitutionally effective assistance.” Strickland, 466 U.S. at 26 686. Since Strickland, “the Supreme Court has not delineated a standard which should apply 27 to ineffective assistance of counsel claims in noncapital sentencing cases.” Davis v. Grigas, 28 443 F.3d 1155, 1158 (2006). The Ninth Circuit has therefore concluded that “there is no 8 1 clearly established federal law as determined by the Supreme Court in this context,” making 2 habeas relief based on an unreasonable application of “clearly established Supreme Court 3 precedent” unavailable for claims of ineffective assistance in a noncapital sentencing. Id.; 4 see also Cooper-Smith v. Palmateer, 397 F.3d 1236, 1244 (9th Cir. 2005). 5 Even if the Strickland standard were “clearly established Federal law” for non-capital 6 sentencing, the state court’s conclusion that there was no prejudice is not an unreasonable 7 application of that standard. In ruling on the Romero motion, the trial court applied the 8 standard articulated by the California Supreme Court in People v. Williams, which requires 9 the court to 11 For the Northern District of California United States District Court 10 12 13 consider whether, in light of the nature and circumstances of his present felonies and prior serious and/or violent felony convictions, and the particulars of his background, character, and prospects, the defendant may be deemed outside the scheme’s spirit, in whole or in part, and hence should be treated as though he had not previously been convicted of one or more serious and/or violent felonies. 14 People v. Williams, 17 Cal. 4th 148, 161 (1998). The suggestion that the trial court would 15 have granted the Romero motion if it had only heard the undisclosed evidence is contradicted 16 by the record. The trial court stated that it found no “facts or circumstances that would 17 warrant me exercising my discretion.” RT at 34. Although the trial court mentioned the 18 knife in characterizing Petitioner’s most recent felony as a “nightmare to the victim,” the 19 court also based that conclusion on the “threats . . . to kill her,” the “breaking and entering,” 20 and the need for police to “forcibly remove[]” Petitioner from the roof. Id. In stating that it 21 “would have probably . . . lessen[ed] the severity of this particular offense,” the trial court 22 declared that both Petitioner’s denial of using a knife and his claim to have accidentally 23 broken the window glass “did not measure with me well in terms of acceptance of 24 responsibility.” Id. Evidence suggesting Petitioner was truthful about the knife would not 25 have altered how the trial court regarded his account of breaking the glass. Finally, the trial 26 court explicitly stated that it would be an abuse of discretion to grant Romero relief “based 27 solely on the offense in this particular case.” Id. at 35. Since Petitioner’s claim relies 28 9 1 exclusively on evidence related to “this particular case,” it is not reasonably probable that 2 such evidence would have produced a different result. 3 The state court denied relief only after concluding that the undisclosed evidence could 4 not counter the extensive record that supported sentencing Petitioner pursuant to the Three 5 Strikes Law. As this was not an unreasonable application of clearly established Supreme 6 Court precedent, the habeas relief requested by Petitioner is DENIED. 7 Petitioner also renews his motions for appointment of counsel and his applications for 8 leave to proceed in forma pauperis. The Court had previously denied without prejudice the 9 motions for appointment of counsel, providing that the Court would “appoint counsel on its 11 As relief is being denied without an evidentiary hearing, the renewed request for appointment For the Northern District of California United States District Court 10 own motion if an evidentiary hearing is later required.” Order to Show Cause (Doc. 6) at 3. 12 of counsel is DENIED. The Court also denied as moot the applications for leave to proceed 13 in forma pauperis, as the $5.00 filing fee had already been paid. Petitioner represents that he 14 does not have the funds to pay the filing fee for an appeal. For good cause appearing, the 15 application to proceed in forma pauperis is therefore GRANTED. 16 17 CONCLUSION 18 For the above reasons, Petitioner has failed to show that he is entitled to habeas relief 19 in this case. Accordingly, with good cause appearing, the petition for a writ of habeas corpus 20 is DENIED, and the renewed request for appointment of counsel is DENIED. Leave to 21 proceed in forma pauperis is GRANTED. 22 The Clerk shall enter judgment and close the file. 23 24 IT IS SO ORDERED. 25 26 Dated: 8/3/10 27 THELTON E. HENDERSON, JUDGE UNITED STATES DISTRICT COURT 28 10
]]>
Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You
should read the full case before relying on it for legal research purposes.
This site is protected by reCAPTCHA and the Google
Privacy Policy and
Terms of Service apply.
