James v. Gastello, No. 3:2017cv01570 - Document 25 (S.D. Cal. 2018)
Court Description: REPORT AND RECOMMENDATION re Denial of 1 Petition for Writ of Habeas Corpus; and Order Denying 24 Motion for Appointment of Counsel. The Court denies Petitioner's Motion for Appointment of Counsel. In addition, it is hereby recommended that the Court issue an Order: (1) approving and adopting this Report and Recommendation, and (2) directing that Judgment be entered denying the Petition. It is hereby ordered that any party to this action may file written objections with the Court a nd serve a copy on all parties no later than 8/10/2018. It is further ordered that any Reply to the Objections shall be filed with the Court and served on all parties no later than 8/24/2018. Signed by Magistrate Judge Nita L. Stormes on 7/24/2018.(All non-registered users served via U.S. Mail Service)(rmc)
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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 DARRYL JAMES, Case No.: 17cv1570 H (NLS) Petitioner, 12 13 14 (1) REPORT AND RECOMMENDATION RE DENIAL OF PETITION FOR WRIT OF HABEAS CORPUS; and v. J. GASTELLO, Warden, Respondents. 15 (2) ORDER DENYING MOTION FOR APPOINTMENT OF COUNSEL 16 17 18 19 I. INTRODUCTION Petitioner Darryl James (“Petitioner” or “James”), a state prisoner proceeding pro 20 21 se, has filed a Petition for Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254, 22 challenging his San Diego Superior Court convictions in case numbers SCD255814 and 23 SCD259896. (Pet. at 1, ECF No. 1 “Pet.”)1 He has also filed a Motion for Appointment 24 of Counsel. (See ECF No. 24.) The Court has reviewed the Petition, the Answer and 25 Memorandum of Points and Authorities in Support of the Answer, the Traverse, the 26 27 28 1 Page numbers for docketed materials cited in this Report and Recommendation refer to those imprinted by the court’s electronic case filing system. 1 17cv1570 H (NLS) 1 lodgments, the Motion and all the supporting documents submitted by both parties. For 2 the reasons discussed below, the Court DENIES the Motion for Appointment of Counsel 3 and RECOMMENDS the Petition be DENIED. 4 II. 5 FACTUAL BACKGROUND This Court gives deference to state court findings of fact and presumes them to be 6 correct; Petitioner may rebut the presumption of correctness, but only by clear and 7 convincing evidence. See 28 U.S.C. § 2254(e)(1) (West 2006); see also Parke v. Raley, 8 506 U.S. 20, 35-36 (1992) (holding findings of historical fact, including inferences 9 properly drawn from those facts, are entitled to statutory presumption of correctness). 10 Petitioner challenges his sentence imposed as a result of two criminal convictions, 11 summarized in one consolidated appellate decision. The following facts are taken from 12 the California Court of Appeal opinion: 13 14 15 16 17 18 19 20 21 22 23 24 A. San Diego County Superior Court Case No. SCD255814 On July 21, 2014, James pled guilty to second degree burglary and petty theft with a prior theft conviction. He also admitted that he had served three prior prison terms and had 15 prior robbery convictions and two prior attempted robbery convictions, which constituted strikes. When James failed to appear for the scheduled sentencing hearing, the trial court issued a bench warrant for his arrest. B. San Diego County Superior Court Case No. SCD259896 In November 2014, a police officer contacted James at a shopping center while the officer was investigating another matter. The officer checked James’s record and learned that James was required to register as a sex offender. The registration requirement arose out of James’s conviction of forcible rape in Missouri in 1977, which was based on a guilty plea that he entered when he was 17 years old. (See § 290.005, subd. (a).) The officer arrested James. 25 26 27 28 James later admitted to another police officer that he had missed his annual sex offender registration requirement. Officers also determined that James may have failed to update his registration upon changing his address. In March 2015, the People charged James with committing petty theft with a 2 17cv1570 H (NLS) 1 prior theft conviction and two counts of failing to register as a sex offender, one for missing his annual registration requirement and the other for failing to register when he changed his address. On both counts, the People alleged that James committed the offenses while he was out on bail. The People also alleged that James had served three prior prison terms and had 17 prior strike convictions. 2 3 4 5 James pled guilty to the count of petty theft with a prior theft conviction. After the trial court denied James’s motion in limine seeking to invalidate the 1977 Missouri forcible rape conviction, a jury found James guilty of failing to complete his annual registration as a sex offender and not guilty of failing to register upon changing his address. After the jury returned its verdicts, in a bifurcated proceeding James admitted that he was out on bail when he committed the failure to register offense, that he had been convicted of forcible rape in Missouri in 1977, that he had 11 robbery convictions and one attempted robbery conviction in 1985, that he had four robbery convictions and one attempted robbery conviction in 1992, and that he had served three prior prison terms. 6 7 8 9 10 11 12 13 14 (Lodgment No. 5, ECF No. 16-10 at 2-4.) 15 III. 16 PROCEDURAL BACKGROUND On May 6, 2014, Petitioner was charged by complaint with one count of second 17 degree burglary (Cal. Penal Code §459) and one count of petty theft with a prior theft 18 conviction (Cal. Penal Code § 484). (Lodgment No. 2, vol. 2, ECF No. 16-2 at 299-300.) 19 The prosecution further alleged that James had three prison priors (Cal. Penal Code 20 §§ 667.5, 668) and had suffered 17 prior strike convictions (Cal. Penal Code §§ 667(b)- 21 (i), 668, 1170.12). (Lodgment No. 2, vol. 2, ECF No. 16-2 at 302-05.) Finally, the 22 prosecutor alleged that Petitioner was ineligible for probation (Cal. Penal Code 23 § 1203(e)(4)). (Lodgment No. 2, vol. 2, ECF No. 16-2 at 302.) 24 On July 21, 2014, James pleaded guilty to both counts and admitted to all the 25 charged allegations and prior convictions. (Lodgment No. 2, vol. 2, ECF No. 16-2 at 26 306-08; see also Lodgment No. 3, vol. 1, ECF No. 16-3 at 8-9.) The trial court indicated 27 its intent to sentence James to no more than 32 months and set a sentencing date for 28 September 25, 2014. The judge explained that if James failed to appear for sentencing, 3 17cv1570 H (NLS) 1 “all deals were off.” (Lodgment No. 3, vol. 1, ECF No. 16-3 at 3, 7, 10; see also 2 Lodgment No. 2, vol. 2, ECF No. 16-2 at 306.) Petitioner failed to appear at his 3 September 25, 2014 sentencing hearing and a bench warrant was issued. (Lodgment No. 4 2, vol. 2, ECF No. 16-2 at 330.) 5 On March 10, 2015, James was charged with committing petty theft with a prior 6 theft conviction (Cal. Penal Code §§ 484, 666(a) & (b)). (Lodgment No. 2, vol. 1, ECF 7 No. 16-1 at 8-11.) He was further charged with two counts of failing to register as a sex 8 offender (Cal. Penal Code §§ 290.012, 290.013).2 (Lodgment No. 2, vol. 1, ECF No. 16- 9 1 at 8-9.) As to each count, the prosecution added an “out-on-bail” enhancement (Cal. 10 Penal Code §12022.1(b)). (Lodgment No. 2, vol. 1, ECF No. 16-1 at 9-10.) It was 11 further alleged that James had three prison priors (Cal. Penal Code §§ 667.5(b), 668) and 12 19 prior strike convictions (Cal. Penal Code §§ 667(b)-(i), 1170.12, 668). (Lodgment 13 No. 2, vol. 1, ECF No. 16-1 at 12-17.) The prosecutor noted that James was eligible for a 14 life sentence under California’s Three Strike’s law. (Lodgment No. 2, vol. 1, ECF No. 15 16-1 at 9.) 16 On January 26, 2016, James pleaded guilty to the petty theft count. (Lodgment 17 No. 1, vol. 1, ECF No. 16-1 at 155-57; see also Lodgment No. 4, vol. 4, ECF No. 16-7 at 18 191-93.) After a jury trial, James was convicted of failing to register within five working 19 days of his birthday but acquitted of failing to register upon changing addresses. 20 (Lodgment No. 2, vol. 2, ECF No. 16-2 at 186-87, 289, 293; see also Lodgment No. 4, 21 vol. 4, ECF No. 16-7 at 195-96.) 22 James waived his right to a jury trial on the enhancements and prior conviction 23 allegations. (Lodgment No. 4, vol. 3, ECF No. 16-6 at 17-20.) He admitted to the out- 24 on-bail enhancement and admitted that he had suffered a conviction for a prior strike 25 based on a forcible rape conviction in Missouri. (Lodgment No. 2, vol. 2, ECF No. 16-2 26 27 28 One count stemmed from James’s purported failure to register as required annually at the time of his birthday. The second count arose from his alleged failure to register when he changed his address. (Lodgment No. 2, vol. 1, ECF No. 16-1 at 9.) 2 4 17cv1570 H (NLS) 1 at 294; see also Lodgment No. 4, vol. 5, ECF No. 16-8 at 402-03, 414.) He also admitted 2 to eleven prior robbery convictions from 1985 and four robbery and one attempted 3 robbery conviction from 1992. (Lodgment No. 2, vol. 2, ECF No. 16-2 at 294-95; see 4 also Lodgment No. 4, vol. 5, ECF No. 16-8 at 413-15.) Lastly, he admitted to having 5 suffered three prison priors. (Lodgment No. 4, vol. 5, ECF No. 16-8 at 410-13.) On 6 April 8, 2016, the trial court exercised its discretion to strike all but one prior strike and 7 sentenced James to an aggregate term of thirteen years, eight months in prison.3 8 (Lodgment No. 4 vol. 6, ECF No. 16-9 at 448-50; see also Lodgment No. 2, vol. 2, ECF 9 No. 16-2 at 324-25.) 10 On May 16, 2016, James filed a notice of appeal. (See Lodgment No. 6, ECF No. 11 16-11.) On December 16, 2016, James’s court appointed appellate attorney filed a brief 12 pursuant to People v. Wende, 25 Cal. 3d 436 (1979). (See Lodgment No. 6, ECF No. 16- 13 11.) Under Wende, appellate counsel is permitted to file a “no merits” brief when counsel 14 determines that there are no arguable issues to pursue on appeal. See Wende, 25 Cal. 3d 15 at 441. In those circumstances, the appellate court independently reviews the record to 16 determine whether any issues exist. Id. 17 On July 11, 2016, while his direct appeal was pending before the Court of Appeal, 18 James filed a petition for writ of habeas corpus in San Diego County Superior Court. 19 (Lodgment No. 7, ECF No. 16-12.) In it, James argued that he received ineffective 20 assistance of counsel with regard to his 1977 Missouri conviction because counsel failed 21 22 23 24 25 26 27 28 3 The trial court designated the failure to register count as the principal count and imposed an upper term of three years, doubled due to the single remaining strike prior. To that six year term, the court added two years for the out-on-bail enhancement. (Lodgment No. 2, vol. 2, ECF No. 16-2 at 249; see also Lodgment No. 4, vol. 6, ECF No. 16-9 at 457.) As to the petty theft with a prior conviction charged in conjunction with the failure to register, the court imposed a consecutive sentence of one third the middle term (eight months) doubled for a total of sixteen months. (Lodgment No. 2, vol. 2, ECF No. 16-2 at 249; see also Lodgment No. 4, vol. 6, ECF No. 16-9 at 457-58.) As to the burglary conviction from the earlier case for which Petitioner failed to appear for sentencing, the court imposed a consecutive term of one third the middle term (eight months) doubled for a total of sixteen months. Finally, the court added three years for the three prison priors, for a total sentence of 13 years, eight months in prison. (Lodgment No. 2, vol. 2, ECF No. 16-2 at 249; see also Lodgment No. 4, vol. 6, ECF No. 16-9 at 45860.) 5 17cv1570 H (NLS) 1 to advise him of the lifetime requirement to register as a sex offender. (See id. at 3-4.) 2 He further argued that the conviction was invalid because he was not properly advised of 3 his rights during his guilty plea. He argued that his conviction for failure to register as a 4 sex offender should be set aside because the underlying conviction was obtained in 5 violation of the Constitution. (See id.) On July 25, 2016, the superior court denied the 6 habeas petition, concluding that it did not have jurisdiction because James’s direct appeal 7 was pending in the appellate court. (Lodgment No. 8, ECF No. 16-13.) 8 On March 21, 2017, while still awaiting a decision in his direct appeal, Petitioner 9 filed a petition for writ of habeas corpus in the California Court of Appeal. (Lodgment 10 No. 9, ECF No. 16-14.) In the petition, he raised three claims: (1) the Missouri court 11 failed to properly advise him of his Constitutional rights during his 1977 guilty plea; (2) 12 ineffective assistance of counsel in his 1977 Missouri case and (3) his California 13 conviction for failing to register as a sex offender amounted to a violation the 14 Constitution’s prohibition against double jeopardy. (See id.) On March 30, 2017, the 15 appellate court denied the habeas petition, concluding that it had no jurisdiction over the 16 Missouri conviction and that Petitioner’s double jeopardy claim was without merit. 17 (Lodgment No. 10, ECF No. 16-15 at 1-2.) 18 On May 8, 2017, the California Court of Appeal rejected James’s direct appeal, 19 finding there were “no reasonably arguable appellate issue[s]” and affirming James’s 20 conviction. (Lodgment No. 6, ECF No. 16-10 at 6-7.) 21 On June 9, 2017, James filed a petition for review in the California Supreme Court. 22 He argued that (1) the appellate court failed to apply the proper standard when reviewing 23 his appeal under Wende, (2) his failure to register conviction was invalid because there 24 was no law requiring registration in 1977, when he pleaded guilty in Missouri and (3) his 25 failure-to-register conviction was violation of equal protection and ex post facto 26 principles. (Lodgment No. 11, ECF No. 16-16 at 3.) On July 12, 2017, the California 27 Supreme Court denied the petition for review without comment or citation. (Lodgment 28 No. 12, ECF No. 16-17.) 6 17cv1570 H (NLS) 1 James filed the instant federal petition for writ of habeas corpus in this Court on 2 August 3, 2017. (ECF No. 1.) Respondent filed an Answer and Memorandum of Points 3 and Authorities on January 16, 2018. (ECF No. 15.) On March 28, 2018, Petitioner filed 4 a Traverse. (ECF No. 22.) James filed a Motion for Appointment of Counsel on May 15, 5 2018. (ECF No. 24.) 6 IV. 7 SCOPE OF REVIEW James’s Petition is governed by the provisions of the Antiterrorism and Effective 8 Death Penalty Act of 1996 (“AEDPA”). See Lindh v. Murphy, 521 U.S. 320 (1997). 9 Under AEDPA, a habeas petition will not be granted unless the adjudication: (1) resulted 10 in a decision that was contrary to, or involved an unreasonable application of clearly 11 established federal law; or (2) resulted in a decision that was based on an unreasonable 12 determination of the facts in light of the evidence presented at the state court proceeding. 13 28 U.S.C. § 2254(d); Early v. Packer, 537 U.S. 3, 8 (2002). 14 A federal court is not called upon to decide whether it agrees with the state court’s 15 determination; rather, the court applies an extraordinarily deferential review, inquiring 16 only whether the state court’s decision was objectively unreasonable. See Yarborough v. 17 Gentry, 540 U.S. 1, 4 (2003); Medina v. Hornung, 386 F.3d 872, 877 (9th Cir. 2004). In 18 order to grant relief under § 2254(d)(2), a federal court “must be convinced that an 19 appellate panel, applying the normal standards of appellate review, could not reasonably 20 conclude that the finding is supported by the record.” See Taylor v. Maddox, 366 F.3d 21 992, 1001 (9th Cir. 2004). 22 A federal habeas court may grant relief under the “contrary to” clause if the state 23 court applied a rule different from the governing law set forth in Supreme Court cases, or 24 if it decided a case differently than the Supreme Court on a set of materially 25 indistinguishable facts. See Bell v. Cone, 535 U.S. 685, 694 (2002). The court may grant 26 relief under the “unreasonable application” clause if the state court correctly identified 27 the governing legal principle from Supreme Court decisions but unreasonably applied 28 those decisions to the facts of a particular case. Id. Additionally, the “unreasonable 7 17cv1570 H (NLS) 1 application” clause requires that the state court decision be more than incorrect or 2 erroneous; to warrant habeas relief, the state court’s application of clearly established 3 federal law must be “objectively unreasonable.” See Lockyer v. Andrade, 538 U.S. 63, 75 4 (2003). “[A] federal habeas court may not issue the writ simply because that court 5 concludes in its independent judgment that the relevant state-court decision applied 6 clearly established federal law erroneously or incorrectly. Rather, that application must 7 also be unreasonable.” Williams v. Taylor, 529 U.S. 362, 411 (2000). “A state court’s 8 determination that a claim lacks merit precludes federal habeas relief so long as 9 ‘fairminded jurists could disagree’ on the correctness of the state court’s decision.” 10 Harrington v. Richter, 562 U.S. 86, 101 (2011) (quoting Yarborough v. Alvarado, 541 11 U.S. 652, 664 (2004)). Where there is no reasoned decision from the state’s highest court, the Court 12 13 “looks through” to the underlying appellate court decision and presumes it provides the 14 basis for the higher court’s denial of a claim or claims. See Ylst v. Nunnemaker, 501 U.S. 15 797, 805-06 (1991). If the dispositive state court order does not “furnish a basis for its 16 reasoning,” federal habeas courts must conduct an independent review of the record to 17 determine whether the state court’s decision is contrary to, or an unreasonable application 18 of, clearly established Supreme Court law. See Delgado v. Lewis, 223 F.3d 976, 982 (9th 19 Cir. 2000) (overruled on other grounds by Andrade, 538 U.S. at 75-76); accord Himes v. 20 Thompson, 336 F.3d 848, 853 (9th Cir. 2003). However, a state court need not cite 21 Supreme Court precedent when resolving a habeas corpus claim. See Early, 537 U.S. at 22 8. “[S]o long as neither the reasoning nor the result of the state-court decision contradicts 23 [Supreme Court precedent,]” the state court decision will not be “contrary to” clearly 24 established federal law. Id. Clearly established federal law, for purposes of § 2254(d), 25 means “the governing principle or principles set forth by the Supreme Court at the time 26 the state court renders its decision.” Andrade, 538 U.S. at 72. 27 /// 28 /// 8 17cv1570 H (NLS) 1 2 V. DISCUSSION James raises three claims in his Petition. In claim one, he argues that the 3 California Court of Appeal failed to properly review his appeal under Wende, 25 Cal. 3d 4 436. (See Pet., ECF No. 1 at 12.) In ground two, Petitioner states “there was no law 5 requiring him to register as a sex offender” when he pleaded guilty in a 1977 Missouri 6 case. (Id.) In ground three, James contends that his conviction for failure to register as a 7 sex offender was in violation of the Ex Post Facto and Equal Protection Clauses of the 8 U.S. Constitution because the registration law was not in effect at the time of his 1977 9 Missouri conviction. (See id.; see also Traverse, ECF No. 22 at 2-5.) 10 A. 11 In claim one, Petitioner argues that the appellate court failed to properly review his Wende Review (Claim One) 12 appeal. (See Pet., ECF No. 1 at 12; see also Traverse, ECF No. 22 at 2.) Respondent 13 contends the claim must be denied because James has failed to state a cognizable ground 14 for federal habeas relief. (See P. & A. Supp. Answer, ECF No. 15-1 at 9-10.) 15 As noted above, James’s appellate counsel submitted a “Wende brief” on appeal. 16 (Lodgment No. 6, ECF No. 16-11.) Under the Wende procedure, appellate counsel, upon 17 concluding that an appeal would be frivolous, files a brief with the appellate court that 18 summarizes the procedural and factual history of the case. Smith v. Robbins, 528 U.S. 19 259, 265 (2000) (citing Wende, 25 Cal. 3d at 441-42). Counsel also attests that he has 20 reviewed the record, explained his evaluation of the case to his client, provided the client 21 with a copy of the brief, and informed the client of his right to file a pro se supplemental 22 brief. Smith, 528 U.S. at 265. Counsel further requests that the appellate court 23 independently examine the record for arguable issues. The appellate court, upon 24 receiving a “Wende brief,” conducts a review of the entire record and if, as was the case 25 here, it finds the appeal to be frivolous, affirms the conviction. See id. 26 A California prisoner cannot state a constitutional claim simply because the Wende 27 procedure was used. See id. at 276. A claim that merely challenges a Wende review is 28 insufficient to state a cognizable ground for federal habeas relief. By claiming a 9 17cv1570 H (NLS) 1 defective Wende review, James has not articulated any specific federal constitutional 2 claim. In Smith, the Supreme Court upheld the constitutionality of California’s Wende 3 procedure as affording “adequate and effective appellate review” for indigent criminal 4 defendants. Id. at 284. As such, Petitioner’s challenge to the procedure itself must fail. 5 To the extent James is challenging the California Court of Appeal’s Wende review 6 process in his specific case, it is a matter of state law, and as such is not cognizable on 7 federal habeas review. See Estelle v. McGuire, 502 U.S. 62, 67 (1991) (“We have stated 8 many times that ‘federal habeas corpus relief does not lie for errors of state law.’”) 9 (citations omitted). Furthermore, to the extent Petitioner asserts that the state court erred 10 in concluding it could find no arguable issues, the mere inability to find an arguable issue 11 is also not a cognizable federal habeas claim. By asking this court to review such a state 12 court determination, James is effectively asking this court to review a claim that, by 13 definition, the California appellate court could not find. This is not the purpose of federal 14 habeas review. See id. 15 In sum, the Wende review procedure is a matter of California state law that this 16 court may neither carry out itself nor review. Petitioner has therefore failed articulate a 17 cognizable federal claim. See Smith, 528 U.S. at 284. He has further failed to show that 18 the state court’s decision on any specific legal claim was contrary to or an unreasonable 19 application of clearly established federal law as determined by the United States Supreme 20 Court, or based on an unreasonable determination of the facts. See 28 U.S.C. § 2254(d). 21 The Court therefore recommends the claim be DENIED. 22 B. 23 Petitioner’s second and third claims both concern Petitioner’s 1977 conviction Missouri Conviction (Claims Two and Three) 24 which provided the basis for his conviction for failure to register as a sex offender. He 25 asserts in claim two that, at the time of his 1977 Missouri conviction, there was no law 26 requiring him to register as a sex offender. In ground three, James contends that 27 California’s sex offender registration requirement, enacted under “Megan’s Law,” and 28 California Penal Code § 290 violate the ex post facto and equal protection clauses of the 10 17cv1570 H (NLS) 1 U.S. Constitution. (Pet., ECF No. 1 at 62.) Although James does not assert any 2 Constitutional violation in ground two, when read in conjunction with ground three, it 3 appears to be part of his overall claim that his conviction for failure to register was in 4 violation of the ex post facto and equal protection clauses. The Court will therefore 5 discuss grounds two and three together. 6 1. 7 Exhaustion Respondent argues Petitioner has failed to exhaust his ex post facto and equal 8 protection claims. (See Answer, ECF No. 15-1 at 13-14.) Habeas petitioners who wish 9 to challenge either their state court conviction or the length of their confinement in state 10 prison, must first exhaust state judicial remedies. 28 U.S.C. § 2254(b), (c); Granberry v. 11 Greer, 481 U.S. 129, 133-34 (1987). To satisfy this requirement, a petitioner must “fairly 12 present” his federal claims “in each appropriate state court (including a state supreme 13 court with powers of discretionary review), thereby alerting that court to the federal 14 nature of [each] claim.” Baldwin v. Reese, 541 U.S. 27, 29 (2004). “Fair presentation” requires that a claim be presented in the manner required by the 15 16 state courts to give those courts a meaningful opportunity to address the claim. Casey v. 17 Moore, 386 F.3d 896, 915-16 (9th Cir. 2004). A claim is not exhausted when it is 18 presented “for the first and only time in a procedural context in which its merits will not 19 be considered unless ‘there are special and important reasons therefore.’” Castille v. 20 Peoples, 489 U.S. 346, 351 (1989) (citation omitted). In other words, a claim raised for 21 the first and only time in a petition to the state’s highest court on discretionary review is 22 not “fairly presented” for the purposes of the exhaustion requirement. Casey, 386 F.3d at 23 917-18. Here, Petitioner’s claims regarding his 1977 conviction and his failure to register 24 25 as a sex offender were not “fairly presented” to the California courts. As discussed 26 /// 27 /// 28 /// 11 17cv1570 H (NLS) 1 above, Petitioner’s appellate counsel filed a Wende brief, raising no issues for appeal.4 2 Petitioner filed a pro se supplemental brief raising the following claims: (1) the Missouri 3 court failed to obtain a waiver of his trial rights before he pled guilty; (2) Missouri 4 counsel provided ineffective assistance in connection with the guilty plea; (3) the 5 Missouri court failed to advise James of the lifetime sex offender registration requirement 6 before he pled guilty; (4) James was denied certain procedural protections afforded 7 California juvenile offenders before they may be prosecuted as adults; and (5) the 8 Missouri conviction does not require him to register as a sex offender in California. (See 9 Lodgment No. 5, ECF No. 16-10 at 6.) Notably, he did not argue his that his failure to 10 register conviction violated the ex post facto or equal protection clauses. 11 /// 12 /// 13 14 15 16 17 4 In the Wende brief, appellate counsel also listed the following potential issues: A. Did the amended abstract of judgment accurately reflect the trial court’s oral pronouncement of judgment? [Citations.] B. Were there any errors related to the trial court's ruling on appellant’s Romero motion? [Citations.] 18 19 20 21 C. Were there any errors related to the trial court's rulings on appellant’s motions in limine? a. Was the Missouri prior conviction constitutionally valid? [Citation] b. Was trial counsel in the Missouri prior conviction ineffective for allowing appellant to plead guilty in that case? [Citation.] 22 23 24 c. For Missouri plea to be valid, was it required that appellant be advised of his future duty to register? [Citation.] 25 d. Was the Missouri conviction a qualifying offense requiring lifetime registration in California? [Citations.] 26 D. Was there sufficient evidence to support appellant’s conviction? [Citations.] 27 E. Were there any errors in relation to the credits awarded in appellant’s case? 28 (Lodgment No. 6, ECF No. 16-9 at 14-16.) 12 17cv1570 H (NLS) 1 Petitioner did raise these claims in his petition for review to the California 2 Supreme Court. (See Lodgment No. , ECF No. 16-16 at 3.) However, a petition for 3 review to the California Supreme Court is a discretionary appeal. See California Rules of 4 Court, Rule 8.500(b). Petitioner therefore did not fairly present these claims to the state 5 court. By introducing his claims only to the California Supreme Court on discretionary 6 review, Petitioner failed to exhaust this claim. See Castille, 489 U.S. at 351; Casey, 386 7 F.3d at 917. The court may nonetheless deny a petition on the merits even if it is 8 unexhausted when it is “perfectly clear that the applicant does not raise even a colorable 9 federal claim.” Cassett v. Stewart, 406 F.3d 614, 623-24 (9th Cir. 2005). 10 11 2. Merits James argues that use of his 1977 Missouri conviction as the basis for his failure to 12 register as a sex offender conviction violates the Ex Post Facto Clause because the 13 California law requiring registration was not in effect at the time of his 1977 conviction. 14 “The States are prohibited from enacting an ex post facto law.” Garner v. Jones, 529 15 U.S. 244, 249 (2000) (citing U.S. Const., Art I, § 10, cl. 1). The Ex Post Facto Clause 16 bars enactments which, by retroactive operation, increase the punishment for a crime 17 after its commission. Id. (citing Collins v. Youngblood, 497 U.S. 37, 42 (1990)). “[T]wo 18 critical elements must be present for a criminal or penal law to be ex post facto: it must 19 be retrospective, that is, it must apply to events occurring before its enactment, and it 20 must disadvantage the offender affected by it.” Weaver v. Graham, 450 U.S. 24, 29 21 (1981) (citing Lindsey v. Washington, 301 U.S. 397, 401 (1937)). 22 As a general proposition, sex offender registration laws do not violate the Ex Post 23 Facto Clause. See Smith v. Doe, 438 U.S. 84, 105-06 (2003) (holding that Alaska’s sex 24 offender registration laws do not violate the Ex Post Facto Clause); Hatton v. Bonner, 25 356 F.3d 955, 967 (9th Cir. 2003) (holding that California’s sex offender registration 26 scheme does not violate the Ex Post Facto Clause). In Hatton, the Ninth Circuit 27 concluded that the California legislature’s purpose in passing Megan’s Law was to 28 protect the public by disclosing truthful information, not to punish sex offenders. See 13 17cv1570 H (NLS) 1 Hatton, 356 F.3d at 962. The court further concluded that the law was not “‘so punitive’” 2 in effect as to negate the legislature’s public safety purpose. Id. at 967 (quoting Smith, 3 538 U.S. at 92). Thus, Petitioner has failed to raise a colorable claim that his conviction 4 was in violation of the Ex Post Facto Clause of the U.S. Constitution. 5 Likewise, Petitioner fails to establish a colorable equal protection claim. The 6 Equal Protection Clause of the Fourteenth Amendment “is essentially a direction that all 7 persons similarly situated should be treated alike.” See City of Cleburne, Tex. v. 8 Cleburne Living Ctr., 473 U.S. 432, 439 (1985); see also Vacco v. Quill, 521 U.S. 793, 9 799, (1997) (citing Plyler v. Doe, 457 U.S. 202, 216 (1982) and Tigner v. Texas, 310 U.S. 10 141, 147 (1940); Fraley v. Bureau of Prisons, 1 F.3d 924, 926 (9th Cir. 1993) (per 11 curiam). 12 The Equal Protection Clause of the Fourteenth Amendment applies strict scrutiny 13 if the aggrieved party is a member of a protected or suspect class, or otherwise suffers the 14 unequal burdening of a fundamental right. City of Cleburne, 473 U.S. at 439-40. 15 “Government actions that do not . . . involve suspect classifications will be upheld if 16 [they] are rationally related to a legitimate state interest.” Fields v. Palmdale Sch. Dist., 17 427 F.3d 1197, 1208 (9th Cir. 2005). The Ninth Circuit Court of Appeals has held that 18 sex offenders are not a suspect class for purposes of equal protection analysis. United 19 States v. Lemay, 260 F.3d 1018, 1030-31 (9th Cir. 2001). Furthermore, persons who 20 have been convicted of serious sex offenses do not have a fundamental right to be free 21 from registration and notification statutes. Doe v. Tandeske, 361 F.3d 594, 597 (9th Cir. 22 2004). Together, these cases demonstrate that sex offender notification laws implicate 23 neither a suspect class nor a fundamental right. 24 A statutory sentencing scheme that does not disadvantage a suspect class or 25 infringe upon the exercise of a fundamental right, as is the case here, is subject only to 26 rational basis scrutiny. See Von Robinson v. Marshall, 66 F.3d 249, 250-51 (9th Cir. 27 1995) (per curiam). As such, to prevail on his equal protection challenge, James “must 28 prove that there exist no legitimate grounds to support the classification.” See United 14 17cv1570 H (NLS) 1 States v. Harding, 971 F.2d 410, 413 (9th Cir. 1992). Here, California’s registration 2 requirements are rationally related to the State’s interest in protecting the public. See e.g. 3 Johnson v. Terhune, 184 Fed. Appx. 622 (9th Cir. 2006) (“Requiring appellant to register 4 as a sex offender did not violate . . . the Equal Protection Clause; given the danger 5 convicted sex offenders of all stripes pose to society, California had a rational basis for 6 requiring misdemeanants to register that is related to a legitimate governmental 7 interest.”); see also Doe v. Moore, 410 F.3d 1337, 1347 (11th Cir. 2005). As such, 8 Petitioner’s equal protection claim lacks merit. 9 In sum, Petitioner’s claims that his failure to register conviction violates the Ex 10 Post Facto Clause and the Equal Protection Clauses of the U.S. Constitution are 11 unexhausted. Moreover, James fails to state colorable federal bases for relief as to these 12 claims. See Cassett, 406 F.3d at 623-24. The Court therefore RECOMMENDS claims 13 two and three be DENIED. 14 C. 15 Lastly, James has filed a motion for appointment of counsel. (See ECF No. 24.) Motion for Appointment of Counsel 16 The Sixth Amendment right to counsel does not extend to federal habeas corpus actions 17 by state prisoners. McCleskey v. Zant, 499 U.S. 467, 495 (1991); Chaney v. Lewis, 801 18 F.2d 1191, 1196 (9th Cir. 1986); Knaubert v. Goldsmith, 791 F.2d 722, 728 (9th Cir. 19 1986). Financially eligible habeas petitioners seeking relief pursuant to 28 U.S.C. § 2254 20 may obtain representation whenever the court “determines that the interests of justice so 21 require.” 18 U.S.C. § 3006A(a)(2)(B); Terrovona v. Kincheloe, 912 F.2d 1176, 1181 (9th 22 Cir. 1990); Bashor v. Risley, 730 F.2d 1228, 1234 (9th Cir. 1984). The interests of 23 justice require appointment of counsel when the court conducts an evidentiary hearing on 24 the petition or utilizes the discovery process. Terrovona, 912 F.2d at 1177; Knaubert, 25 791 F.2d at 728; Rule 8(c), 28 U.S.C. foll. § 2254; Rule 6(a), 28 U.S.C. foll. § 2254. The 26 appointment of counsel is discretionary where, as here, no evidentiary hearing or 27 discovery is requested or necessary. See Terrovona, 912 F.2d at 1177; Knaubert, 791 28 F.2d at 728. 15 17cv1570 H (NLS) 1 With regard to discretionary appointment of counsel, the Ninth Circuit has stated 2 that, “[i]ndigent state prisoners applying for habeas relief are not entitled to appointed 3 counsel unless the circumstances of a particular case indicate that appointed counsel is 4 necessary to prevent due process violations.” Chaney, 801 F.2d at 1196; Knaubert, 791 5 F.2d at 728-29. A due process violation may occur in the absence of counsel if the issues 6 involved are too complex for the petitioner. In addition, the appointment of counsel may 7 be necessary if the petitioner has such limited education that he or she is incapable of 8 presenting his or her claims. Hawkins v. Bennett, 423 F.2d 948, 950 (8th Cir. 1970). “A 9 district court should consider the legal complexity of the case, the factual complexity of 10 the case, the petitioner’s ability to investigate and present his claim, and any other 11 relevant factors.” Abdullah v. Norris, 18 F.3d 571, 573 (8th Cir. 1994). 12 The issues in the present case are not too complex for James. He has sufficiently 13 represented himself to date and appears to have a grasp of his case and the legal issues 14 involved. The Petition in this case was pleaded sufficiently to warrant this Court’s order 15 directing Respondent to file an answer or other responsive pleading to the Petition. As 16 the court in Knaubert noted: “unless an evidentiary hearing is held, an attorney’s skill in 17 developing and presenting new evidence is largely superfluous; the district court is 18 entitled to rely on the state court record alone.” Knaubert, 791 F.2d at 729 (citing 19 Sumner v. Mata, 449 U.S. 539, 545-57 (1981), and 28 U.S.C. §2254(d)). Moreover, 20 “[t]he procedures employed by the federal courts are highly protective of a pro se 21 petitioner’s rights. The district court is required to construe a pro se petition more 22 liberally than it would construe a petition drafted by counsel.” Knaubert, 791 F.2d at 729 23 (citing Haines v. Kerner, 404 U.S. 519, 520 (1972) (holding pro se complaint to less 24 stringent standard) (per curiam)); Bashor, 730 F.2d at 1234. 25 The factual record is adequately developed here, and there is no indication that an 26 attorney would have presented additional facts or a more compelling argument. Under 27 such circumstances, appointment of counsel is simply not warranted by the interests of 28 justice. See LaMere v. Risley, 827 F.2d 622, 626 (9th Cir. 1987). 16 17cv1570 H (NLS) 1 Petitioner contends that he requires appointed counsel because he is unable to 2 adequately represent himself “due to mental incapacity.” (ECF No. 24 at 2.) He states 3 that due to his mental incapacity he is “currently on medication for his condition and has 4 been on numerous anti-depressants and anti-psychotic mediation” during the course of 5 his incarceration. (Id.) The Ninth Circuit held that where a petitioner submits 6 “substantial evidence” of his incompetence, the district court should hold a competency 7 hearing to determine whether a petitioner is “competent under an appropriate standard for 8 habeas petitioners.” Allen v. Calderon, 408 F.3d 1150, 1153-54 (9th Cir. 2005). The 9 Ninth Circuit further determined that, should the district court conclude such a hearing is 10 advisable, “counsel should be appointed for the limited purpose of representing the 11 petitioner at the competency hearing as required by Rule 8 of the Rules Governing 12 Section 2254 Cases.” Id. 13 The Court in Allen did not specifically delineate what constituted “substantial 14 evidence,” however, it did offer some guidance. In Allen, the petitioner did not comply 15 with a court order, and he submitted his own declaration and the declaration of another 16 inmate explaining that he was mentally ill and did not understand the court’s instructions. 17 Id. at 1152. In addition, the petitioner included a letter from the prison psychiatrist 18 setting forth his diagnosis of chronic undifferentiated schizophrenia and stating that 19 petitioner was taking two psychotropic medications. Id. Those submissions established 20 that “he suffer [ed] from a mental illness, the mental illness prevent[ed] him from being 21 able to understand and respond to the court’s order, and he was still suffering from the 22 illness during the relevant time period,” and the Ninth Circuit found that there was 23 sufficient evidence for the district court to have appointed counsel for the petitioner to 24 represent him at a competency hearing. Id. 25 Here, Petitioner’s submits his own declaration, a two-page “Medication 26 Administration Record” dated April 17, 2018, and a one-page “General Chrono” report 27 dated November 2, 2017 in which a Classification Committee recommended James for 28 placement in the prison’s Enhanced Outpatient Program. (See ECF No. 24.) In his 17 17cv1570 H (NLS) 1 declaration, James states he suffers from “severe depression and anxiety and other 2 disorders.” (Id. at 2.) He states he suffers from major depression and suicidal ideation, 3 and has taken “numerous anti-depressant and anti-psychotic medication” during his 4 incarceration. (Id.) He states that because of his mental disability, he is not able to 5 proceed in his case without assistance of counsel. (Id. at 3.) 6 The “Medication Administration Record” includes reference to James being given 7 a single dose of “BuSpar” or “busPIRone” for his anxiety on four occasions from March 8 26, 2018 to March 31, 2018. The report notes that James had been previously diagnosed 9 with major depressive disorder. It states James was “stable in program” at the time of the 10 report. James told medical staff, “I’m doing good. The Buspar is good -- it’s all I need 11 right now. I don’t need to change anything.” (Id. at 6.) The report contains a notation 12 describing James as “[a]lert, relaxed, engaged, [with] linear thought process, 13 spontaneous/productive speech, no latency in response, no odor, euthymic mood, 14 constricted affect, good insight/judgment.” (Id.) The report also includes a list 15 psychiatric medications that had been previously prescribed for James.5 Finally, 16 Petitioner also includes a brief “chrono” report which states that James “does not 17 currently meet the minimum functional requirements to participate in an Adult Basic 18 Education classroom setting.” (Id. at 8.) 19 Under Allen, when considering the evidence of mental illness, the Court must look 20 to whether the evidence indicates Petitioner is hindered in his ability to comprehend the 21 proceedings or appropriately respond to the Court. Allen, 408 F.3d at 1151-52. Without 22 minimizing Petitioner’s mental illness, the Court finds nothing in Petitioner’s declaration 23 and medical records that suggest his mental illness currently hinders his ability to 24 comprehend the proceedings before this Court or appropriately respond to the issues 25 26 5 27 28 The list of medications previously prescribed for Petitioner includes Haldol, Prolixin, Thorazine, Seroquel, Zyprexa, Resperdal, Geodon, Abilify, Prozac, Paxil, Zoloft, Celexa, Remeron, Wellbutrin, Trazodone, and Buspar. (ECF No. 24 at 6.) With the exception of Buspar, there is nothing in the report to indicate that James was currently taking any of the listed medications. (See id.) 18 17cv1570 H (NLS) 1 raised in this case. Indeed, the April 17, 2018 report submitted by Petitioner noted his 2 “linear thought process” and “good insight/judgment,” among other things. (See ECF 3 No. 24 at 6.) As such, Petitioner is therefore not entitled to appointed counsel under 4 Allen. In summary, based on Petitioner’s declaration and the medical records he 5 6 submitted, the Court finds that Petitioner has not presented substantial evidence of 7 incompetency sufficient to warrant a competency hearing. Allen, 408 F.3d at 1151-52. 8 His medical records do not indicate he is unable to comprehend the proceedings or 9 appropriately respond to the Court. Furthermore, the Court finds that the “interests of 10 justice” do not warrant the appointment of counsel in this case. See Knaubert, 791 F.2d 11 at 729. The motion is therefore DENIED. 12 VI. 13 CONCLUSION AND RECOMMENDATION The Court submits this Report and Recommendation to United States District 14 Judge Marilyn L. Huff under 28 U.S.C. § 636(b)(1) and Local Civil Rule HC.2 of the 15 United States District Court for the Southern District of California. For the reasons 16 outlined above, the Court DENIES Petitioner’s Motion for Appointment of Counsel. 17 (ECF No. 24). 18 In addition, IT IS HEREBY RECOMMENDED that the Court issue an Order: 19 (1) approving and adopting this Report and Recommendation, and (2) directing that 20 Judgment be entered DENYING the Petition. 21 IT IS HEREBY ORDERED that any party to this action may file written 22 objections with the Court and serve a copy on all parties no later than August 10, 2018. 23 The document should be captioned “Objections to Report and Recommendation.” 24 /// 25 /// 26 /// 27 /// 28 /// 19 17cv1570 H (NLS) 1 IT IS FURTHER ORDERED that any Reply to the Objections shall be filed with 2 the Court and served on all parties no later than August 24, 2018. The parties are 3 advised that failure to file objections within the specified time may waive the right to 4 raise those objections on appeal of the Court’s Order. See Turner v. Duncan, 158 F.3d 5 449, 455 (9th Cir. 1998); Martinez v. Ylst, 951 F.2d 1153, 1157 (9th Cir. 1991). 6 Dated: July 24, 2018 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 20 17cv1570 H (NLS)
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