Rodney Barnes v. Terri Gonzales

Filing 18

MEMORANDUM OPINION AND ORDER DENYING PETITION AND DISMISSING ACTION WITH PREJUDICE by Magistrate Judge Jean P Rosenbluth: (See document for details.) IT THEREFORE IS ORDERED that Judgment be entered denying the Petition and dismissing this action with prejudice. (Attachments: # 1 PART 2, # 2 PART 3, # 3 PART 4) (rla) Modified on 8/28/2012 (rla).

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o 1 , HEREBY CERTIFY THAT THIS DOCUMENT WAS SERVED B1. ~ • FIRST CLASS MAIL POSTAGE PREPAID, TO ALL 8S!:INSEL r<-.fi·~ 19R PARTIES) AT THEIR RESPECTIVE MOST RECENT ADDRESS OF RECORD IN THIS ACTION ON THIS DATE. 2 3 DATED: 4 FILED· SOUTHERN DIVISION CLERK, U.S. DISTRICT COURl ~. "2-~ • \ '1.- AUG 282012 DEPUTY CLERK 5 CENTA~ DISTRICT OF CALIFORNIA BY _ DEPUTY 6 V 7 8 9 10 UNITED STATES DISTRICT COURT 11 CENTRAL DISTRICT OF CALIFORNIA 12 13 Petitioner, 14 MEMORANDUM OPINION AND ORDER DENYING PETITION AND DISMISSING ACTION WITH PREJUDICE vs. 15 16 Case No. CV 12-2076-JPR RODNEY BARNES, TERRI GONZALES, Warden, Respondent. 17 18 PROCEEDINGS 19 On March 12, 2012, Petitioner filed a Petition for writ of 20 21 22 23 24 25 Habeas Corpus by a Person in State Custody pursuant to 28 U.S.C. § 2254, raising four claims for relief. On May 14, 2012, Respondent filed an Answer with an attached memorandum. Petitioner did not file a reply. The parties consented to the jurisdiction of the undersigned U.S. Magistrate Judge pursuant to 28 U.S.C. § 636(c). For the reasons discussed below, the Court 26 27 denies the Petition and dismisses this action with prejudice. BACKGROUND 28 1 1 burglary, in violation of California Penal Code section 459, and 2 forgery, in violation of section 476. 3 Tr. at 43-44.) 4 years in prison. 5 (Lodgment 12, 1 Clerk's The trial court sentenced petitioner to four (Id. at 152-57.) Petitioner appealed, raising claims corresponding to claims 6 one through three and subclaim (A) of claim four in the Petition. 7 (Lodgment 1.) On May 19, 2011, the court of appeal affirmed his 8 convictions and sentence. (Lodgment 4.) Petitioner then filed a 9 Petition for Review in the state supreme court, which that court 10 11 summarily denied on August 31, 2011. (Lodgments 5, 6.) While his direct appeal was pending in the court of appeal, 12 Petitioner filed a habeas petition in the same court, raising 13 subclaim (B) of claim four. 14 court of appeal denied the petition in a reasoned decision. 15 (Lodgment 8.) 16 petition in the state supreme court, which summarily denied it on 17 August 31, 2011. 18 19 (Lodgment 7.) On May 19, 2011, the Petitioner raised the same claim in a habeas (Lodgments 9, 10.) PETITIONER'S CLAIMS I. The trial court violated due process and Petitioner's 20 constitutional right to confront witnesses by admitting into 21 evidence a purportedly fake invoice given by defense counsel to 22 the prosecutor before trial. 23 II. (Pet. at 5.) The trial court violated due process by denying 24 Petitioner's motion to reopen the proceedings at the end of trial 25 to allow him to testify. 26 (Id.) III. The prosecutor committed misconduct by commenting in 27 closing argument on Petitioner's failure to testify, in violation 28 of Griffin v. California, 380 U.S. 609, 85 S. Ct. 1229, 14 L. Ed. 2 1 2d 106 (1965). 2 IV. (Pet. at 5-6.) Trial counsel was constitutionally ineffective for 3 failing to (A) object to the alleged Griffin error or (B) 4 authenticate the fake invoice given to her by Petitioner, which 5 was subsequently admitted at trial to inculpate him. (rd. at 6.) 6 SUMMARY OF THE EVIDENCE 7 The factual summary set forth in a state appellate court 8 opinion is entitled to a presumption of correctness pursuant to 9 28 U.S.C. § 2254(e) (1). See Vasquez v. Kirkland, 572 F.3d 1029, 10 1031 n.1 (9th Cir. 2009). Because Petitioner does not challenge 11 the sufficiency of the evidence, the Court adopts the following 12 statement of facts from the California Court of Appeal opinion on 13 direct appeal as a fair and accurate summary of the evidence 14 presented at trial. 1 15 On July 23, 2008, [Petitioner] entered a bank in 16 Lancaster, handed the teller a check, and asked to have 17 it cashed. 18 on 19 Robertson's. 20 features, such as a border, colored background, invisible 21 fibers, 22 issued checks that look like the one that [Petitioner] 23 sought to negotiate, 24 serial number that was not used by Robertson's. 25 the The check proffered by [Petitioner] is drawn account of a concrete manufacturer called The check is not genuine: it lacks security and a special type font. and Robertson's never [Petitioner]' s check bore a When [Petitioner] handed over the check, the bank 26 27 28 1 The Court has nonetheless independently reviewed the state-court record. 3 1 teller became suspicious because the texture of the paper 2 and the ink looked like something printed on a home 3 computer. 4 help him identify fraudulent checks.) 5 not have an account at the bank, so the teller asked for 6 identification and placed imprints of 7 8 9 finger on the check. 10 11 (The teller received training from the bank to [Petitioner] did [Petitioner]' s When the check was run through a computerized processing system, it generated an alert. The teller directed [Petitioner] to wait in the lobby while he verified the transaction with a supervisor. While [Petitioner] waited, a bank manager 12 investigated the veracity of [Petitionerl's check. 13 located photocopies of Robertson's genuine checks, and 14 saw that the characteristics of those checks are entirely 15 different from the one presented by [Petitioner]. 16 telephoned Robertson's to confirm that the check was 17 fraudulent, then contacted the bank's corporate security 18 department and the sheriff's department. 19 [Petitioner] 20 After a while, 21 word, leaving behind his identification and the check. 22 He He He noticed that was fidgety and looked around nervously. [Petitioner] departed the bank without a Two hours later, [Petitioner] reappeared at the 23 bank, approached the teller window, and asked for the 24 return of the check and his identification. 25 manager - who by then knew that the check was fraudulent 26 tried to stall [Petitioner] until the The bank sheriff's 27 department arrived, and asked [Petitioner] why he had the 28 check. [Petitioner], who still seemed nervous, described 4 1 it as a payroll check and said that he had to leave for 2 an appointment. 3 identification or the check, 4 and left. 5 that the bank refused to cash the check. 6 When the manager refused to return the [Petitioner] turned around [Petitioner] did not seem surprised or shocked After [Petitioner] departed (for the second time), 7 a 8 counter at the bank. 9 bearing [Petitioner]' s name, and a business card from the customer turned in a wallet that was left on the The wallet contained an ATM card 10 California Department of Corrections. 11 not 12 identification, or the check. 13 CDC card was [Petitioner] 's parole officer. 14 return to the bank to [Petitioner] did claim his wallet, his The person listed on the The deputy sheriff assigned to the case has special 15 training to detect check fraud. 16 relatively simple 17 [Petitioner] attempted to negotiate. 18 check-writing software can be purchased at a business 19 supply 20 Robertson's that the check tendered by [Petitioner] is 21 fraudulent. he 22 believes that the check was produced on a home computer, 23 although the identity of its creator is unknown. 24 store or to produce online. Based The parties on He testified that it is the kind of The the check that The check stock and deputy confirmed with deputy's stipulated that experience, [Petitioner] sent a 25 letter to the court, and it was read to the jury. 26 states, "My family is really suffering due to a bad check 27 that was issued to me for my labor, and I had no idea it 28 was bad. I actually furnished 5 the bank with It my 1 California identification card, three fingerprints, and 2 waited for over a half an hour. 3 should prove r had no knowledge whatsoever whether the 4 check was genuine or not." 5 (Lodgment 4 at 2-3 (footnote omitted).) 6 7 8 9 So that, in itself, STANDARD OF REVIEW Under 28 U.S.C. § 2254(d), as amended by the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"): An application for a writ of habeas corpus on behalf of 10 a person in custody pursuant to the judgment of a State 11 court shall not be granted with respect to any claim that 12 was adjudicated on the merits in State court proceedings 13 unless the adjudication of the claim - (1) resulted in a 14 decision 15 unreasonable application of, clearly established Federal 16 law, as determined by the Supreme Court of the United 17 States; or (2) resulted in a decision that was based on 18 an unreasonable determination of the facts in light of 19 the evidence presented in the State court proceeding. 20 Under AEDPA, the "clearly established Federal law" that 21 controls federal habeas review of state-court decisions consists 22 of holdings of Supreme Court cases "as of the time of the 23 relevant state-court decision." 24 362, 412, 120 S. Ct. 1495, 1523, 146 L. Ed. 2d 389 (2000). 25 that was contrary to, or involved an Williams v. Taylor, 529 U.S. Although a particular state-court decision may be both 26 "contrary to" and "an unreasonable application of" controlling 27 Supreme Court law, the two phrases have distinct meanings. 28 at 391, 413. rd. A state-court decision is "contrary to" clearly 6 1 established federal law if it either applies a rule that 2 contradicts governing Supreme Court law or reaches a result that 3 4 5 6 differs from the result the Supreme Court reached on "materially 7 long as neither the reasoning nor the result of the state-court indistinguishable" facts. Early v. Packer, 537 U.S. 3, 8, 123 S. Ct. 362, 365, 154 L. Ed. 2d 263 (2002). A state court need not cite or even be aware of the controlling Supreme Court cases, "so 8 decision contradicts them." Id. 9 State-court decisions that are not "contrary to" Supreme 10 Court law may be set aside on federal habeas review only "if they 11 are not merely erroneous, but 'an unreasonable application' of 12 clearly established federal law, or based on 'an unreasonable 13 determination of the facts' 14 state-court decision that correctly identifies the governing 15 legal rule may be rejected if it unreasonably applies the rule to 16 the facts of a particular case. 17 To obtain federal habeas relief for such an "unreasonable 18 application," however, a petitioner must show that the state 19 court's application of Supreme Court law is "objectively 20 unreasonable." 21 warranted only if the state court's ruling is "so lacking in 22 justification that there was an error well understood and 23 comprehended in existing law beyond any possibility for 24 fairminded disagreement." 25 131 S. Ct. 770, 786-87, 178 L. Ed. 2d 624 (2011). 26 27 (emphasis added)." Id. at 409-10. Id. at 11. A Williams, 529 U.S. at 406-08. In other words, habeas relief is Harrington v. Richter, 562 U.S. Here, Petitioner raised claims one through three and subclaim (A) of claim four on direct appeal, and he raised 28 subclaim (B) of claim four on habeas review (Lodgments 1, 7) ; the 7

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