Valencia v. Martel
Filing
57
ORDER SUBSTITUTING Warden Dave Davey as Respondent; FINDINGS and RECOMMENDATIONS to Deny the 52 Second Amended Petition for Writ of Habeas Corpus; FINDINGS and RECOMMENDATIONS to Enter Judgment for Respondent and to Decline to Issue a Certificate of Appealability; Objections Deadline: Thirty (30) Days signed by Magistrate Judge Sheila K. Oberto on 5/27/2015. Referred to Judge Anthony W. Ishii. Objections to F&R due by 6/29/2015. (Sant Agata, S)
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UNITED STATES DISTRICT COURT
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EASTERN DISTRICT OF CALIFORNIA
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11 DAVID J. VALENCIA, JR.,
Case No. 1:11-cv-01066-AWI-SKO-HC
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ORDER SUBSTITUTING WARDEN DAVE
DAVEY AS RESPONDENT
Petitioner,
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FINDINGS AND RECOMMENDATIONS TO
DENY THE SECOND AMENDED PETITION
FOR WRIT OF HABEAS CORPUS (DOCS.
29, 47, 51)
v.
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17 DAVE DAVEY, Warden,
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Respondent.
FINDINGS AND RECOMMENDATIONS TO
ENTER JUDGMENT FOR RESPONDENT AND
TO DECINE TO ISSUE A CERTIFICATE OF
APPEALABILITY
OBJECTIONS DEADLINE:
THIRTY (30) DAYS
Petitioner is a state prisoner proceeding pro se with a
petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254.
The matter has been referred to the Magistrate Judge pursuant to 28
U.S.C. § 636(b)(1) and Local Rules 302 through 304.
Pending before
the Court is the second amended petition (SAP), which consists of
the first amended petition (FAP) (doc. 29) and the claims stated in
Petitioner’s unopposed motion to amend the FAP (doc. 47).
(See doc.
51, order of this Court filed on November 17, 2012, deeming the two
documents to constitute the SAP and permitting Respondent to file a
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1 supplemental answer.)
Respondent filed an answer to the FAP on
2 October 18, 2012, but declined to supplement it after the SAP was
3 filed.
Petitioner filed a traverse on November 26, 2012.
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I.
Jurisdiction and Order Substituting Respondent
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Because the petition was filed after April 24, 1996, the
6 effective date of the Antiterrorism and Effective Death Penalty Act
7 of 1996 (AEDPA), the AEDPA applies in this proceeding.
Lindh v.
8 Murphy, 521 U.S. 320, 327 (1997); Furman v. Wood, 190 F.3d 1002,
9 1004 (9th Cir. 1999).
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Judgment was rendered by the Superior Court of the State of
11 California, County of Tuolumne (TCSC), located within the
12 jurisdiction of this Court.
13 (d).
28 U.S.C. §§ 84(b), 2254(a), 2241(a),
Petitioner claims that in the course of the proceedings
14 resulting in his conviction, he suffered violations of his
15 constitutional rights.
The Court concludes it has subject matter
16 jurisdiction over the action pursuant to 28 U.S.C. §§ 2254(a) and
17 2241(c)(3), which authorize a district court to entertain a petition
18 for a writ of habeas corpus by a person in custody pursuant to the
19 judgment of a state court only on the ground that the custody is in
20 violation of the Constitution, laws, or treaties of the United
21 States.
Williams v. Taylor, 529 U.S. 362, 375 n.7 (2000); Wilson v.
22 Corcoran, 562 U.S. - , -, 131 S.Ct. 13, 16 (2010) (per curiam).
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An answer was filed on behalf of Respondent Michael Martel who
24 had custody of Petitioner at his institution of confinement.
25 45, 1.)
(Doc.
Petitioner thus named as Respondent a person who had
26 custody of Petitioner within the meaning of 28 U.S.C. § 2242 and
27 Rule 2(a) of the Rules Governing Section 2254 Cases in the District
28 Courts (Habeas Rules).
See Stanley v. California Supreme Court, 21
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1 F.3d 359, 360 (9th Cir. 1994).
In view of the fact that the warden at the California State
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3 Prison at Corcoran, California, is now Dave Davey, it is ORDERED
4 that Dave Davey, Warden of the California State Prison at Corcoran,
5 California, be SUBSTITUTED as Respondent pursuant to Fed. R. Civ. P.
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II.
Background
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In a habeas proceeding brought by a person in custody pursuant
9 to a judgment of a state court, a determination of a factual issue
10 made by a state court shall be presumed to be correct; the
11 petitioner has the burden of producing clear and convincing evidence
12 to rebut the presumption of correctness.
28 U.S.C. § 2254(e)(1);
13 Sanders v. Lamarque, 357 F.3d 943, 947-48 (9th Cir. 2004).
This
14 presumption applies to a statement of facts drawn from a state
15 appellate court’s decision.
16 (9th Cir. 2009).
Moses v. Payne, 555 F.3d 742, 746 n.1
The following statement of procedural history and
17 facts is taken from the opinion of the Court of Appeal of the State
18 of California, Fifth Appellate District (CCA) in People v. Valencia,
19 case number F059244, filed on March 3, 2011.
A jury convicted appellant David John Valencia of felony
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Fed. R. Civ. P. 25(d) provides that when a public officer who is a party to a
civil action in an official capacity dies, resigns, or otherwise ceases to hold
office while the action is pending, the officer’s successor is automatically
substituted as a party. It further provides that the Court may order substitution
at any time, but the absence of such an order does not affect the substitution.
The Court takes judicial notice of the identity of the warden from the official
website of the California Department of Corrections and Rehabilitation (CDCR),
http://www.cdcr.ca.gov. The Court may take judicial notice of facts that are
capable of accurate and ready determination by resort to sources whose accuracy
cannot reasonably be questioned, including undisputed information posted on
official websites. Fed. R. Evid. 201(b); United States v. Bernal-Obeso, 989 F.2d
331, 333 (9th Cir. 1993); Daniels-Hall v. National Education Association, 629 F.3d
992, 999 (9th Cir. 2010).
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corporal injury to a spouse or cohabitant. He admitted
suffering five felony convictions, two of which
constituted strikes. The trial court sentenced Valencia to
25 years to life. Valencia appeals, contending (1) the
trial court had a sua sponte duty to instruct on the
defense of necessity; (2) defense counsel was ineffective
for failing to request a necessity instruction; and (3)
the trial court abused its discretion in denying his
request to strike one of his strike convictions. We will
affirm the judgment.
FACTUAL AND PROCEDURAL SUMMARY
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On the afternoon of September 13, 2009, people at or near
La Bella Rosa Vineyards and Old Wards Ferry Road heard
sounds of an argument emanating from a house trailer
across the street from the vineyard. Valencia and his
wife, Carrie Kobel, lived in the house trailer and people
could hear them yelling and screaming. People also heard
Kobel crying.
Kobel was then seen coming down her driveway, with
Valencia following. One witness saw Valencia push Kobel,
causing her to fall to the ground. Dennis Jackson, a
neighbor, saw Valencia trying to punch Kobel with his fist
five to 10 times; Valencia actually connected with a punch
four times. Kobel was screaming for help.
Linda Peterson and her daughter, Crystal Moberg, ran to
the middle of the street and called out, “What the heck is
going on up there?” Kobel asked them to call the police;
Valencia told them to mind their own business. Peterson
told Moberg to go call the police.
Valencia crossed over to where Peterson was and began
yelling and swearing at her. Jackson saw Peterson and
Valencia within a foot of each other and heard a “heated
exchange.” Jackson overheard Valencia tell Peterson it was
none of her business and that he, Valencia, was trying to
keep Kobel from driving. Jackson told Valencia his
comments were “bullshit” based on what he, Jackson, had
seen. After Jackson's remark, Valencia became “very
aggressive and intimidating” toward Jackson.
At approximately 4:30 p.m., Sheriff's Deputy Daniel Newman
arrived at the scene; Sheriff's Deputy Samuel Egbert
already was there. Newman noted that Kobel was speaking
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rapidly and appeared “shaken up,” as if “something
traumatic” had happened. Newman saw that Kobel had dried
blood on her left temple and fresh blood from a laceration
on the top of her head.
Kobel told Newman that she and Valencia had gotten into an
argument when she went to move her truck in order to make
room for friends coming over to park. Kobel's driver's
license had been suspended due to a vehicle accident where
she had been under the influence of alcohol. Valencia
objected to her driving because the two of them had been
drinking and he thought she was going to leave; Kobel told
him she was not leaving, but was only moving the truck
onto the driveway. When Kobel went to move the truck,
Valencia hit her in the back of the head, maybe with his
fists.
Egbert spoke to Valencia, who denied there had been a
fight. Valencia said there was an argument, but no fight.
Valencia said Kobel was intoxicated and was attempting to
leave their property; he was only trying to stop her.
Valencia denied hitting Kobel. Newman and Egbert saw
injuries on Valencia's knuckles that were consistent with
having punched someone.
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Valencia was charged with one count of violating Penal
Code section 273.5, subdivision (a),FN1 corporal injury to
a spouse or cohabitant. It also was alleged that he had
suffered five felony convictions within the meaning of
section 1203, subdivision (e)(4), and two of the
convictions constituted strikes within the meaning of
section 667, subdivisions (b) through (i).
FN1. All further statutory references are to the
Penal Code unless otherwise noted.
The trial was bifurcated. At the trial on the underlying
offense, Kobel testified that she recently had married
Valencia before the altercation and that the two of them
lived in the house trailer on Old Wards Ferry Road. Kobel
admitted she and Valencia fought that day, but claimed she
did not remember Valencia ever hitting her. Kobel claimed
she did not remember telling Newman that Valencia hit her
in the back of the head and did not remember telling
hospital personnel that her husband struck her with his
fists. Kobel remembered that she and Valencia had argued.
She told Valencia specifically that she was only going to
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move her truck; they argued over her moving the vehicle.
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Newman testified to what Kobel had told him. Kobel also
told him that she feared for her life as a result of
Valencia's assault.
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Kendall Ann Long testified she had been in a relationship
with Valencia in 2000. One evening as they were walking
down a street together, Valencia demanded that she go to
her mother's house and pick up her son. When she responded
“No,” Valencia looked her in the eye and hit her full
force with his fist between her temple and ear. She
suffered a ruptured eardrum from the assault.
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Ellen Klein, a nurse practitioner, treated Kobel for the
laceration on her head. Klein described the laceration as
superficial; it was closed with staples. Klein also
testified Kobel told her Valencia had hit her in the head
with his fist.
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The jury found Valencia guilty as charged. Valencia
admitted the prior convictions. The trial court denied
Valencia's request to strike at least one of his strike
convictions. Valencia was sentenced to a term of
imprisonment of 25 years to life.
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2011).
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III.
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Failure to Instruct on the Defense of Necessity
Petitioner alleges that his Sixth and Fourteenth Amendment
rights to due process of law and to have the jury determine every
element of his case beyond a reasonable doubt were violated when the
trial court failed to instruct sua sponte on the defense of
necessity.
Petitioner contends the trial court in effect directed a
verdict for the prosecution because substantial evidence supported
the defense, and Petitioner was relying on it.
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(SAP, doc. 29, 4.)
A. Standard of Decision and Scope of Review
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Title 28 U.S.C. § 2254 provides in pertinent part:
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(d) An application for a writ of habeas corpus on
behalf of a person in custody pursuant to the
judgment of a State court shall not be granted
with respect to any claim that was adjudicated
on the merits in State court proceedings unless
the adjudication of the claim–
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(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
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(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.
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Clearly established federal law refers to the holdings, as
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14 distinct from the dicta, of the decisions of the Supreme Court as of
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the time of the relevant state court decision.
Cullen v.
Pinholster, - U.S. -, 131 S.Ct. 1388, 1399 (2011); Lockyer v.
Andrade, 538 U.S. 63, 71 (2003); Williams v. Taylor, 529 U.S. 362,
19 412 (2000).
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A state court’s decision contravenes clearly established
21 Supreme Court precedent if it reaches a legal conclusion opposite
22 to, or substantially different from, the Supreme Court's or
23 concludes differently on a materially indistinguishable set of
24 facts.
Williams v. Taylor, 529 U.S. at 405-06.
The state court
25 need not have cited Supreme Court precedent or have been aware of
26 it, "so long as neither the reasoning nor the result of the state27 court decision contradicts [it]."
Early v. Packer, 537 U.S. 3, 8
28 (2002).
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A state court unreasonably applies clearly established federal
2 law if it either 1) correctly identifies the governing rule but
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applies it to a new set of facts in an objectively unreasonable
manner, or 2) extends or fails to extend a clearly established legal
principle to a new context in an objectively unreasonable manner.
7 Hernandez v. Small, 282 F.3d 1132, 1142 (9th Cir. 2002); see,
8 Williams, 529 U.S. at 407.
An application of clearly established
9 federal law is unreasonable only if it is objectively unreasonable;
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an incorrect or inaccurate application is not necessarily
unreasonable.
Williams, 529 U.S. at 410.
A state court’s
determination that a claim lacks merit precludes federal habeas
14 relief as long as fairminded jurists could disagree on the
15 correctness of the state court’s decision.
16 562 U.S. -, 131
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relief, a state
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a claim was “so
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20 well understood
S.Ct. 770, 786 (2011).
To obtain federal habeas
prisoner must show that the state court’s ruling on
lacking in justification that there was an error
and comprehended in existing law beyond any
21 possibility for fairminded disagreement.”
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Harrington v. Richter,
Id. at 786-87.
Where the state court decides an issue on the merits, but its
decision is unaccompanied by an explanation, a habeas petitioner
must show there was no reasonable basis for the state court to deny
relief.
Harrington v. Richter, 131 S.Ct. 770, 784.
In such
27 circumstances, this Court should perform an independent review of
28 the record to ascertain whether the state court decision was
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1 objectively unreasonable.
Medley v. Runnels, 506 F.3d 857, 863 n.3
2 (9th Cir. 2007), cert. denied, 552 U.S. 1316 (2008); Himes v.
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Thompson, 336 F.3d 848, 853 (9th Cir. 2003).
Independent review is
not the equivalent of de novo review; the Court must still defer to
the state court’s ultimate decision.
7 1160, 1167 (9th Cir. 2002).
Pirtle v. Morgan, 313 F.3d
In assessing under section 2254(d)(1)
8 whether the state court’s legal conclusion was contrary to or an
9 unreasonable application of federal law, “review... is limited to
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the record that was before the state court that adjudicated the
claim on the merits.”
Cullen v. Pinholster, 131 S.Ct. at 1398.
Evidence introduced in federal court has no bearing on review
14 pursuant to § 2254(d)(1).
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Id. at 1400.
With respect to each claim, the last reasoned decision must be
16 identified to analyze the state court decision pursuant to 28 U.S.C.
17 § 2254(d).
Barker v. Fleming, 423 F.3d 1085, 1092 n.3 (9th Cir.
18 2005); Bailey v. Rae, 339 F.3d 1107, 1112-13 (9th Cir. 2003).
Where
19 there has been one reasoned state judgment rejecting a federal
20 claim, later unexplained orders upholding that judgment or rejecting
21 the same claim are presumed to rest upon the same ground.
Ylst v.
22 Nunnemaker, 501 U.S. 797, 803 (1991).
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The standards set by § 2254(d) are “highly deferential
24 standard[s] for evaluating state-court rulings” which require that
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state court decisions be given the benefit of the doubt, and the
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Petitioner bear the burden of proof. Cullen v. Pinholster, 131
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28 S.Ct. at 1398. Habeas relief is not appropriate unless each ground
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1 supporting the state court decision is examined and found to be
2 unreasonable under the AEDPA.
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S.Ct. 1195, 1199 (2012).
Wetzel v. Lambert, -–U.S.--, 132
The deferential standard of § 2254(d)
applies only to claims that have been resolved on the merits by the
state court.
If a claim was not decided on the merits, this Court
7 must review it de novo.
Lambert v. Blodgett, 393 F.3d 943, 965 (9th
8 Cir. 2004); Lewis v. Mayle, 391 F.3d 989, 996 (9th Cir. 2004).
The
9 deferential standard of § 2254(d) sets a substantially higher
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threshold for relief than does the standard of de novo review, which
requires relief for an incorrect or erroneous application of federal
law.
Renico v. Lett, 559 U.S. 766, 773 (2010).
In a habeas proceeding brought by a person in custody pursuant
15 to a judgment of a state court, a determination of a factual issue
16 made by a state court shall be presumed to be correct; the
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petitioner has the burden of producing clear and convincing evidence
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to rebut the presumption of correctness. 28 U.S.C. § 2254(e)(1). A
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20 state court decision on the merits based on a factual determination
21 will not be overturned on factual grounds unless it was objectively
22 unreasonable in light of the evidence presented in the state
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proceedings.
Miller-El v. Cockrell, 537 U.S. 322, 340 (2003).
For
relief to be granted, a federal habeas court must find that the
trial court’s factual determination was such that a reasonable fact
27 finder could not have made the finding; that reasonable minds might
28 disagree with the determination or have a basis to question the
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2 (2006).
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Rice v. Collins, 546 U.S. 333, 340-42
To conclude that a state court finding is unsupported by
substantial evidence, a federal habeas court must be convinced that
an appellate panel, applying the normal standards of appellate
review, could not reasonably conclude that the finding is supported
7 by the record.
8 2004).
Taylor v. Maddox, 366 F.3d 992, 999-1001 (9th Cir.
To determine that a state court’s fact finding process is
9 defective in some material way or non-existent, a federal habeas
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court must be satisfied that any appellate court to whom the defect
is pointed out would be unreasonable in holding that the state
court’s fact finding process was adequate.
B.
Id. at 1000.
The State Court’s Decision
On direct appeal, the CCA’s decision on Petitioner’s claim was
16 left undisturbed by the California Supreme Court (CSC). (LD 7.)
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The CCA’s decision on the issue is as follows:
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I. Necessity Instruction
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Valencia's contention that a necessity instruction should
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have been given is twofold: (1) the trial court had a sua
sponte duty to instruct on necessity, and (2) defense
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counsel was ineffective for failing to request a necessity
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instruction. Neither contention prevails because the
evidence did not support a necessity instruction.
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A trial court has a sua sponte duty to instruct on a
defense if it is supported by substantial evidence and if
it is not inconsistent with the defendant's theory of the
case. (People v. Boyer (2006) 38 Cal.4th 412, 468-469.) A
trial court is not required to instruct on theories that
lack substantial evidentiary support. (People v. Miceli
(2002) 104 Cal.App.4th 256, 267.) The defendant has the
burden of proving the defense of necessity by a
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preponderance of the evidence. (People v. Heath (1989) 207
Cal.App.3d 892, 901 (i).)
In order to “justify an instruction on the defense of
necessity, there must be evidence sufficient to establish
that defendant violated the law (1) to prevent a
significant evil, (2) with no adequate alternative, (3)
without creating a greater danger than the one avoided,
(4) with a good faith belief in the necessity, (5) with
such belief being objectively reasonable, and (6) under
circumstances in which he did not substantially contribute
to the emergency. [Citations.]” (People v. Pepper (1996)
41 Cal.App.4th 1029, 1035 (Pepper).) “Necessity does not
negate any element of the crime, but represents a public
policy decision not to punish such an individual despite
proof of the crime. [Citations.]” (Heath, supra, 207
Cal.App.3d at p. 901.)
The defense of necessity, in contrast to the defense of
duress, has traditionally covered situations where
physical forces beyond the defendant's control rendered
illegal conduct the lesser of two evils. (Heath, supra,
207 Cal.App.3d at p. 899.) “The defense of necessity
generally recognizes that ‘ “the harm or evil sought to be
avoided by [the defendant's] conduct is greater than that
sought to be prevented by the law defining the offense
charged.” ’ [Citation.]” (People v. Coffman and Marlow
(2004) 34 Cal.4th 1, 100, brackets in original (Coffman
and Marlow ).)
The necessity defense is available to a defendant if the
actions he or she intended to engage in, and did engage
in, were unlawful. (Coffman and Marlow, supra, 34 Cal.4th
at p. 100.) The situation presented to the defendant must
be of an emergency nature, threatening physical harm, and
lacking an alternative legal course of action. (People v.
Weber (1984) 162 Cal.App.3d Supp. 1, 5.)
Here, a necessity instruction was not warranted for three
reasons: (1) Valencia denied engaging in any illegal
conduct, specifically, he denied hitting Kobel; (2)
Valencia had adequate options available to avoid the
perceived harm of allowing Kobel to drive drunk; and (3)
the belief that Kobel was going to drive away while drunk
was not reasonable.
Valencia maintained at trial that he did not hit Kobel;
they merely argued. Valencia did not contend he was forced
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to engage in an illegal act in order to prevent a greater
wrong; an argument is not an illegal act. Valencia's
claim, if believed by the jury, was insufficient as a
matter of law to establish the elements of the defense of
necessity; there was no illegal act. Therefore, the
instruction was not warranted. (See Pepper, supra, 41
Cal.App.4th at p. 1036.)
More importantly, Valencia had numerous legal options
available to him to prevent Kobel from driving while
intoxicated, which precluded a defense of necessity.
(Pepper, supra, 41 Cal.App.4th at p. 1035.) Valencia could
have (1) taken the keys from Kobel, (2) offered to move
the truck himself, (3) disabled the truck, or (4) called
911 if Kobel insisted on driving away. Any one of these
simple legal actions would have prevented the perceived
harm Valencia claimed he was trying to prevent-that of
having Kobel drive while drunk.
Moreover, virtually the only evidence that Kobel was going
to drive away in the truck while intoxicated came from the
self-serving statements of Valencia. Kobel told Newman she
was moving the truck only to make room for friends to park
and that she had told Valencia she was not leaving the
property. Kobel also testified at trial that she
specifically told Valencia she was only moving the truck,
not driving away. Valencia's claim of trying to avoid harm
to the public was not reasonable under the circumstances.
18 People v. Valencia, 2011 WL 726670, at *2-*4.
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C.
Analysis
The only basis for federal collateral relief for instructional
error is that the infirm instruction or the lack of instruction by
itself so infected the entire trial that the resulting conviction
violates due process.
Estelle v. McGuire, 502 U.S. 62, 71-72
(1991); Cupp v. Naughten, 414 U.S. 141, 147 (1973); see Donnelly v.
DeChristoforo, 416 U.S. 637, 643 (1974) (it must be established not
merely that the instruction is undesirable, erroneous or even
“universally condemned,” but that it violated some right guaranteed
to the defendant by the Fourteenth Amendment).
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The instruction may
1 not be judged in artificial isolation, but must be considered in the
2 context of the instructions as a whole and the trial record.
3 Estelle, 502 U.S. at 72.
The Court in Estelle emphasized that the
4 Court had very narrowly defined the category of infractions that
5 violate fundamental fairness, and that beyond the specific
6 guarantees enumerated in the Bill of Rights, the Due Process Clause
7 has limited operation.
8
Id. at 72-73.
Under the Due Process Clause of the Fourteenth Amendment and
9 the Compulsory Process Clause and Confrontation Clause of the Sixth
10 Amendment, criminal defendants must be afforded a meaningful
11 opportunity to present a complete defense.
Crane v. Kentucky, 476
12 U.S. 683, 690 (1986); California v. Trombetta, 467 U.S. 479, 485
13 (1984).
The Supreme Court has not recognized a generalized
14 constitutional right to have a jury instructed on a defense
15 available under the evidence under state law.
16 Taylor, 108 U.S. 333, 343 (1993).
See Gilmore v.
However, when habeas relief is
17 sought under 28 U.S.C. § 2254, a failure to instruct on the defense
18 theory of the case constitutes error if the theory is legally sound
19 and evidence in the case makes it applicable.
Clark v. Brown, 450
20 F.3d 898, 904 (9th Cir. 2006); see Mathews v. United States, 485
21 U.S. 58, 63 (1988) (reversing a conviction and holding that even if
22 a defendant denies one or more elements of the crime, he is entitled
23 to an entrapment instruction whenever there is sufficient evidence
24 from which a reasonable jury could find entrapment, and the
25 defendant requests such an instruction).
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The Supreme Court has held that harmless error analysis applies
27 to instructional errors as long as the error at issue does not
28 categorically vitiate all the jury's findings.
14
Hedgpeth v. Pulido,
1 555 U.S. 57, 61 (2008) (citing Neder v. United States, 527 U.S. 1,
2 11 (1999) (quoting in turn Sullivan v. Louisiana, 508 U.S. 275
3 (1993) concerning erroneous reasonable doubt instructions as
4 constituting structural error)).
In Hedgpeth v. Pulido, the Court
5 cited its previous decisions that various forms of instructional
6 error were trial errors subject to harmless error analysis,
7 including errors of omitting or misstating an element of the offense
8 or erroneously shifting the burden of proof as to an element.
9 Hedgpeth, 555 U.S. 60-61.
To determine whether a petitioner
10 proceeding pursuant to § 2254 suffered prejudice from such an
11 instructional error, a federal court must determine whether the
12 petitioner suffered actual prejudice by assessing whether, in light
13 of the record as a whole, the error had a substantial and injurious
14 effect or influence in determining the jury’s verdict.
Hedgpeth,
15 555 U.S. at 62; Brecht v. Abrahamson, 507 U.S. 619, 638 (1993).
16
A failure to instruct on a defense theory has been held
17 harmless under the Brecht standard where other instructions
18 permitted consideration of the pertinent defensive matter.
19 Beardslee v. Woodford, 358 F.3d 560, 576 (9th Cir. 2004) (failure to
20 instruct on manslaughter was not error, but if it was error, it was
21 harmless error because it had no substantial or injurious effect or
22 influence in determining the jury’s verdict in light of the verdicts
23 rendered and the giving of numerous instructions that permitted
24 consideration of the matter in question).
25
Here, the evidence established that the victim had informed
26 Petitioner she did not intend to drive away, but simply sought to
27 adjust the location of a parked vehicle.
Credible witnesses also
28 testified that Petitioner engaged in the aggressively violent
15
1 conduct of pursuing the victim down the driveway as she ran
2 screaming from him, pushing her down to the ground, and inflicting
3 repeated blows to her head, which were interrupted only by the
4 approach of witnesses who attempted to de-escalate the situation.
5 Petitioner’s protestations at the time of his assaultive behavior
6 provide the only contemporaneous evidence that his role was merely
7 that of someone attempting to prohibit unlawful driving.
In light
8 of the physical evidence of head wounds to the victim and testimony
9 from multiple sources regarding the conduct of Petitioner and the
10 victim, the state court properly concluded that the factual
11 circumstances presented no emergency and did not foreclose many
12 other alternative courses of conduct immediately available to
13 Petitioner, including obtaining the keys, otherwise disabling the
14 vehicle, or seeking the authorities to intervene.
The state court’s
15 findings regarding the evidence were objectively reasonable in light
16 of the evidence before the state court.
17
This Court is bound by the state court’s application of state
18 law and its conclusion that the theory of necessity was not legally
19 sound under the circumstances.
In a habeas corpus proceeding, this
20 Court is bound by the California Supreme Court=s interpretation of
21 California law unless the interpretation is deemed untenable or a
22 veiled attempt to avoid review of federal questions.
23 Woodford, 255 F.3d 926, 964 (9th Cir. 2001).
Murtishaw v.
Federal habeas relief
24 is available to state prisoners only to correct violations of the
25 United States Constitution, federal laws, or treaties of the United
26 States.
28 U.S.C. ' 2254(a).
Federal habeas relief is not
27 available to retry a state issue that does not rise to the level of
28 a federal constitutional violation.
16
Wilson v. Corcoran, 131 S.Ct.
1 at 16; Estelle v. McGuire, 502 U.S. at 67-68.
Alleged errors in the
2 application of state law are not cognizable in federal habeas
3 corpus.
4
Souch v. Schaivo, 289 F.3d 616, 623 (9th Cir. 2002).
In sum, Petitioner has not shown he suffered a denial of due
5 process of law from the failure to instruct on the defense of
6 necessity.
It will be recommended that Petitioner’s claim be
7 denied.
8
9
10
IV.
Ineffective Assistance of Counsel for Failing to Request
an Instruction on the Necessity Defense
Petitioner alleges that his trial counsel’s failure to request
11 an instruction on the necessity defense constituted ineffective
12 assistance of counsel (IAC) in violation of his rights under the
13 Sixth and Fourteenth Amendment. (SAP, doc. 29, 4.)
14
A. The State Court’s Decision
15
The decision of the CCA on this issue, which was left
16
undisturbed by the CSC’s summary denial of review (LD 7), is as
17
follows:
18
For the same reasons the trial court was not required sua
19
sponte to instruct on the defense of necessity, defense
counsel was not ineffective for failing to request a
20
necessity instruction. The evidence was insufficient to
support such an instruction. As the appellate court stated
21
in People v. Torrez (1995) 31 Cal.App.4th 1084, 1091,
22
“defense counsel is not required to make futile motions or
to indulge in idle acts to appear competent.”
23
24 People v. Valencia, 2011 WL 726670, at *4.
25
26
B.
Analysis
To demonstrate ineffective assistance of counsel in violation
27 of the Sixth and Fourteenth Amendments, a defendant must show that
28
1) counsel=s representation fell below an objective standard of
17
1 reasonableness under prevailing professional norms in light of all
2 the circumstances of the particular case; and 2) unless prejudice is
3
4
5
6
presumed, it is reasonably probable that, but for counsel=s errors,
the result of the proceeding would have been different.
Strickland
v. Washington, 466 U.S. 668, 687-94 (1984); Lowry v. Lewis, 21 F.3d
7 344, 346 (9th Cir. 1994).
A petitioner must identify the acts or
8 omissions of counsel alleged to have been deficient. Strickland, 466
9 U.S. 690.
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
This standard is the same standard that is applied on
direct appeal and in a motion for a new trial.
Strickland, 466 U.S.
697-98.
In determining whether counsel=s conduct was deficient, a court
should consider the overall performance of counsel from the
perspective of counsel at the time of the representation.
Strickland, 466 U.S. at 689.
There is a strong presumption that
counsel=s conduct was adequate and within the exercise of reasonable
professional judgment and the wide range of reasonable professional
assistance.
Strickland, 466 U.S. at 688-90.
In determining prejudice, a reasonable probability is a
probability sufficient to undermine confidence in the outcome of the
proceeding.
Strickland, 466 U.S. at 694.
In the context of a
trial, the question is whether there is a reasonable probability
that, absent the errors, the fact finder would have had a reasonable
doubt respecting guilt.
Strickland, 466 U.S. at 695.
This Court
must consider the totality of the evidence before the fact finder
and determine whether the substandard representation rendered the
proceeding fundamentally unfair or the results thereof unreliable.
18
1 Strickland, 466 U.S. at 687, 696.
A court need not address the
2 deficiency and prejudice inquiries in any given order and need not
3 address both components if the petitioner makes an insufficient
4 showing on one.
5
Strickland, 466 U.S. at 697.
Here, the state court reasonably applied a standard consistent
6 with the Strickland standard in concluding that counsel had not
7 engaged in objectively unreasonable conduct in failing to request an
8 instruction that was not applicable under the circumstances.
The
9 failure to seek relief that is not merited or to make a motion that
10 is otherwise futile does not constitute objectively unreasonable
11 conduct.
James v. Borg, 24 F.3d 20, 27 (9th Cir. 1994).
Where, as
12 here, the evidence of the Petitioner’s guilt is very strong, and the
13 request for the instruction would have been denied, a petitioner
14 cannot show that any prejudice resulted from counsel’s failure to
15 request the instruction.
16
Id.
Accordingly, it will be recommended that the Court deny
17 Petitioner’s claim of ineffective assistance based on failure to
18 request a necessity instruction.
19
20
21
22
23
24
25
26
27
V.
Failure to Strike a Prior Conviction Resulting
in an Unfair and Excessive Sentence
Petitioner alleges that the sentencing court’s failure to
strike at least one of his prior convictions was an abuse of
discretion that resulted in a sentence that excessive,
disproportionate, and fundamentally unfair in violation of his right
to due process of law and his freedom from cruel and unusual
punishment protected by the Eighth and Fourteenth Amendments.
doc. 29, 5; SAP, doc. 47, 1-2.)
28
19
(SAP,
1
Petitioner alleges that the sentencing court abused its
2 discretion under state law when it declined to strike at least one
3 of his prior convictions.
This Court is bound by the CSC’s
4 interpretation and application of California law unless it is
5 determined that the interpretation is untenable or a veiled attempt
6 to avoid review of federal questions.
7 F.3d 926, 964 (9th Cir. 2001).
Murtishaw v. Woodford, 255
Here, there is no basis for a
8 conclusion that the CSC’s interpretation or application or state law
9 was untenable or part of an attempt to avoid review of federal
10 questions.
Thus, this Court will not review the state court’s
11 interpretation or application of Cal. Pen. Code § 1385 and related
12 state decisional law.
A claim alleging misapplication of state
13 sentencing law involves a question of state law which is not
14 cognizable in a proceeding pursuant to 28 U.S.C. § 2254.
See Lewis
15 v. Jeffers, 497 U.S. 764, 780 (1990) (rejecting a claim that a state
16 court misapplied state statutes concerning aggravating circumstances
17 on the ground that federal habeas corpus relief does not lie for
18 errors of state law); Souch v. Schaivo, 289 F.3d at 623 (dismissing
19 as not cognizable claims alleging only that the trial court abused
20 its discretion in selecting consecutive sentences and erred in
21 failing to state reasons for choosing consecutive terms); Miller v.
22 Vasquez, 868 F.2d 1116, 1118-19 (9th Cir. 1989) (dismissing as not
23 cognizable a claim concerning whether a prior conviction qualified
24 as a sentence enhancement under state law).
A claim that a
25 petitioner should be resentenced after a consideration of a motion
26 to strike a prior conviction has been held not cognizable on federal
27 habeas review.
See Brown v. Mayle, 283 F.3d 1019, 1040 (9th Cir.
28
20
1 2002), vacated on other grounds, Mayle v. Brown, 538 U.S. 901
2 (2003).
3
To the extent Petitioner might attempt to base a due process
4 claim on having a liberty interest that was violated by the state
5 court’s abuse of discretion, the source of any liberty interest is
6 state law.
Cf. Swarthout v. Cooke, 562 U.S. -, 131 S.Ct. 859, 861-
7 62 (2011) (characterizing as reasonable a decision of the Ninth
8 Circuit Court of Appeals that California law creates a liberty
9 interest in parole protected by the Due Process Clause of the
10 Fourteenth Amendment).
Here, after affording Petitioner due process
11 and considering the pertinent factors, the state court determined
12 there was no abuse of discretion under state law.
13 Valencia, 2011 WL 726670, at *4-*5.
People v.
Thus, Petitioner has not shown
14 there was a violation of a liberty interest protected by the Due
15 Process Clause.
Absent a showing of fundamental unfairness, a state
16 court’s misapplication of its own sentencing laws does not justify
17 federal habeas relief.
18 Cir. 1994).
Christian v. Rhode, 41 F.3d 461, 469 (9th
Petitioner has not shown any fundamental unfairness.
19
VI.
Excessive Sentence
20
Petitioner alleges that the sentence of twenty-five years to
21 life for corporeal injury to a spouse is grossly excessive and
22 fundamentally unfair because the injury was not statutorily
23 categorized as violent or serious, the conduct was part of an effort
24 to prevent the spouse from driving while intoxicated, and
25 Petitioner’s prior convictions were thirteen and fourteen years old.
26 (SAP, doc. 29, 5; SAP, doc. 47, 1-2.)
27
28
A.
The State Court’s Decision
The CCA’s decision on Petitioner’ sentencing claims was left
21
1 undisturbed by the CSC’s summary denial of review.
(LD 7.)
The CCA
2 summarized the pertinent facts as follows:
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
The probation office prepared a report that had a
recommendation for a three strikes sentence; the report,
however, also included an alternative sentencing
recommendation in case the trial court exercised its
discretion to strike the strike convictions. The defense
asked that one or both strike convictions be stricken by
the trial court; the People opposed the request.
The record established that Valencia had suffered five
felony convictions: (1) a 1995 conviction for kidnapping,
(2) a 1996 conviction for criminal threats, (3) a 1996
conviction for resisting an executive officer, (4) a 1996
conviction for driving under the influence, and (5) a 2000
conviction for corporal injury to a spouse or cohabitant.
In addition to the felony convictions, Valencia had 11
misdemeanor convictions. Valencia had served three prison
terms and was on probation at the time of the altercation
with Kobel. Valencia had a history of drug and alcohol
abuse and had participated in a 52-week counseling session
to address domestic violence.
The trial court noted that Valencia had been in an alcohol
program, a 52-week domestic violence program, had nine
grants of probation, and was on probation at the time of
the altercation with Kobel. The trial court noted the
lengthy history of criminal offenses committed by Valencia
and the similarity of the attack on Kobel to the earlier
domestic violence conviction and attack on Long. The trial
court stated that Valencia was “a violent man. And I don't
dare leave him out.” The trial court described Valencia as
“a poster child for three strikes.” The trial court
thereafter imposed a term of 25 years to life.
People v. Valencia, 2011 WL 726670, at *4.
23
24
25
The CCA next addressed the claim of an abuse of discretion,
concluding that the trial court had based its discretionary
26 sentencing decision on appropriate factors and individualized
27 considerations specific to Petitioner.
28 forth the following analysis:
22
Id. at *5.
The CCA then set
1
2
3
4
5
6
7
8
9
10
11
12
13
We also reject Valencia's contention that a three strikes
sentence of 25 years to life is disproportionate to the
offense and a violation of his constitutional rights. The
purpose of the three strikes law is not to subject a
criminal defendant to a life sentence merely on the basis
of the latest offense. Rather, the purpose is to punish
recidivist behavior. (People v. Diaz (1996) 41 Cal.App.4th
1424, 1431; People v. Kinsey (1995) 40 Cal.App.4th 1621,
1630-1631.) Habitual offender statutes have withstood
constitutional scrutiny based on assertions of cruel and
unusual punishment, as well as claims of a
disproportionate sentence. (See People v. Ayon (1996) 46
Cal.App.4th 385, 398-400, disapproved on other grounds in
People v. Deloza (1998) 18 Cal.4th 585, 593-595, 600, fn.
10.)
The sentence imposed by the trial court was not an abuse
of discretion and did not violate Valencia's
constitutional rights.
People v. Valencia, 2011 WL 726670, at *5.
B.
14
15
Analysis
Insofar as Petitioner challenges the application of state
16 statutory law that for sentencing purposes may have either
17
categorized his offense as serious or violent or set forth criteria
18
for evaluating a history of prior convictions, this Court will not
19
20 review the state court’s decision.
21
Regarding Petitioner’s challenge to his sentence as
22 unconstitutionally excessive or disproportionate, the availability
23 of habeas relief is limited in a proceeding pursuant to 28 U.S.C.
24 § 2254.
Habeas relief is limited regardless of whether Petitioner’s
25 claim is based on the sentencing court’s denial of the motion to
26 strike the prior conviction, its characterization of the offense as
27 serious or violent, or its evaluation of the Petitioner’s history of
28 prior convictions.
It is only a criminal sentence that is “grossly
23
1 disproportionate” to the crime for which a defendant is convicted
2 that may violate the Eighth Amendment.
Lockyer v. Andrade, 538 U.S.
3 63, 72 (2003) (Andrade); Harmelin v. Michigan, 501 U.S. 957, 1001
4 (1991) (Kennedy, J., concurring); Rummel v. Estelle, 445 U.S. 263,
5 271 (1980) (Rummel).
Outside of the capital punishment context, the
6 Eighth Amendment prohibits only sentences that are extreme and
7 grossly disproportionate to the crime.
United States v. Bland, 961
8 F.2d 123, 129 (9th Cir. 1992) (quoting Harmelin v. Michigan, 501
9 U.S. 957, 1001, (1991) (Kennedy, J., concurring)).
Such instances
10 are “exceedingly rare” and occur in only “extreme” cases.
11 538 U.S. at 72-73; Rummel, 445 U.S. at 272.
Andrade,
So long as a sentence
12 does not exceed statutory maximums, it will not be considered cruel
13 and unusual punishment under the Eighth Amendment.
See United
14 States v. Mejia Mesa, 153 F.3d 925, 930 (9th Cir. 1998); United
15 States v. McDougherty, 920 F.2d 569, 576 (9th Cir. 1990).
16
Here, Petitioner’s sentence was not disproportionate and did
17 not offend the Eighth and Fourteenth Amendments.
18
19
20
21
This conclusion
rests on the limited range of disproportionate sentences recognized
as Eighth Amendment violations under Supreme Court authority.
The
decisions of the Supreme Court confirm that the Eighth Amendment
22 does not disturb the authority of a state to protect the public by
23 adopting a sentencing scheme that imposes longer sentences on
24 recidivists who have suffered a serious prior felony conviction.
25
Ewing v. California, 538 U.S. 11, 25 (2003) (upholding a sentence of
26
27
28
twenty-five years to life for a recidivist convicted of grand
theft); Andrade, 538 U.S. at 66-67, 73-76 (upholding two consecutive
24
1 terms of twenty-five years to life and denying habeas relief to an
2 offender convicted of theft of videotapes worth approximately $150
3
4
5
6
with prior offenses that included first-degree burglary,
transportation of marijuana, and escape from prison); Rummel, 445
U.S. at 284 85 (upholding a sentence of life with the possibility of
7 parole for a recidivist convicted of fraudulently using a credit
8 card for $80, passing a forged check for $28.36, and obtaining
9 $120.75 under false pretenses); Taylor v. Lewis, 460 F.3d 1093,
10
11
12
13
1101–02 (9th Cir. 2006) (upholding a sentence of twenty-five years
to life for possession of .036 grams of cocaine base where the
petitioner had served multiple prior prison terms with prior
14 convictions of offenses that involved violence and crimes against
15 the person).
16
17
Here, Petitioner’s prior offenses were numerous and involved
arguably even greater social harm than the harm wrought by the
18
19
acquisitive offenses in Ewing, Andrade, and Rummel.
The state court
20 properly concluded that Petitioner’s sentence was not
21 disproportionate and did not offend the Eighth and Fourteenth
22 Amendments considering the nature and circumstances of Petitioner’s
23
24
25
26
27
commitment offense as well as Petitioner’s extended history of
repeatedly committing serious and violent offenses without any
significant rehabilitative progress.
Accordingly, it will be recommended that Petitioner’s claim of
28 cruel and unusual punishment in violation of the Eighth and
25
1 Fourteenth Amendments be denied.
2
VII.
3
4
5
6
Petitioner alleges that his right under the Fourteenth
Amendment to an impartial tribunal was violated because the trial
court failed to recuse itself after it had signed a document
indicating a belief in Petitioner’s guilt.
7
A.
8
9
10
11
12
13
14
15
16
17
18
19
Due Process Right to an Impartial Tribunal
(SAP, doc. 29, 7.)
Procedural Default
Respondent contends that this Court should not review
Petitioner’s bias claim because of Petitioner’s procedural default
in the state court.2
Petitioner raised his claim of a biased trial
court in a habeas corpus petition filed in the TCSC, arguing the
trial court had violated his due process rights by failing to grant
recusal where the judge had “touched” the case before presiding over
the case at trial.
In denying the state habeas petition, the TCSC
cited In re Dixon, 41 Cal.2d 756 (1953) and ruled that it would not
consider the claim because Petitioner had failed to raise the issue
on direct appeal.
(Ans., exh. B, doc. 45 at 22-23.)
However,
Respondent addresses the underlying due process issue of a biased
tribunal in the context of Petitioner’s related IAC claims premised
20
21
22
23
24
25
26
27
28
2
The doctrine of procedural default is a specific application of the more general
doctrine of independent state grounds. It provides that when state court decision
on a claim rests on a prisoner’s violation of either a state procedural rule that
bars adjudication of the case on the merits or a state substantive rule that is
dispositive of the case, and the state law ground is independent of the federal
question and adequate to support the judgment such that direct review in the
United States Supreme Court would be barred, then the prisoner may not raise the
claim in federal habeas absent a showing of cause and prejudice or that a failure
to consider the claim will result in a fundamental miscarriage of justice. Walker
v. Martin, - U.S. -, 131 S.Ct. 1120, 1127 (2011); Coleman v. Thompson, 501 U.S.
722, 729-30 (1991); Bennett v. Mueller, 322 F.3d 573, 580 (9th Cir. 2003); Wells
v. Maass, 28 F.3d 1005, 1008 (9th Cir. 1994). The doctrine applies regardless of
whether the default occurred at trial, on appeal, or on state collateral review.
Edwards v. Carpenter, 529 U.S. 446, 451 (2000).
26
1 on trial and appellate counsel’s failure to raise the due process
2 challenge.
3
(Id. at 14-15.)
A procedural default is not jurisdictional.
4 U.S. 87, 89 (1997).
Trest v. Cain, 522
It proceeds from concerns of comity and
5 federalism because a prisoner=s failure to comply with a state=s
6 procedural requirement for presenting a federal claim has deprived
7 the state courts of an opportunity to address the claim in the first
8 instance.
Coleman v. Thompson, 501 U.S. at 831-32.
In a habeas
9 case, it is not necessary that the issue of procedural bar be
10 resolved if another issue is capable of being resolved against the
11 petitioner.
Lambrix v. Singletary, 520 U.S. 518, 525 (1997).
12 Likewise, the procedural default issue, which may necessitate
13 determinations concerning cause and miscarriage of justice, may be
14 more complex than the underlying issues in the case.
In such
15 circumstances, it may make more sense to proceed to the merits.
16 Franklin v. Johnson, 290 F.3d 1223, 1232 (9th Cir. 2002).
See
The Court
17 will proceed to consider the merits of Petitioner’s claim in the
18 interest of economy.
19
A fair trial in a fair tribunal is a basic requirement of due
20 process.
In re Murchison, 349 U.S. 133, 136 (1955); see Arizona v.
21 Fulminante, 499 U.S. 279, 309-10 (1991).
Fairness requires an
22 absence of actual bias and of the probability of unfairness.
23 Murchison, 349 U.S. at 136.
In re
Bias may be actual, or it may consist
24 of the appearance of partiality in the absence of actual bias.
25 Stivers v. Pierce, 71 F.3d 732, 741 (9th Cir. 1995).
A showing that
26 the adjudicator has prejudged, or reasonably appears to have
27 prejudged, an issue, is sufficient.
28 329, 333 (9th Cir. 1992).
27
Kenneally v. Lungren, 967 F.2d
1
However, there is a presumption of honesty and integrity on the
2 part of decision makers.
3 (1975).
Withrow v. Larkin, 421 U.S. 35, 46-47
Opinions formed by a judge based on facts introduced or
4 events occurring in the course of the current proceedings do not
5 constitute a basis for a bias or partiality motion unless they
6 display a deep-seated favoritism or antagonism that would make fair
7 judgment impossible.
Liteky v. United States, 510 U.S. 540, 555
8 (1994).
9
Here, in the state court, Petitioner alleged that the judge who
10 presided over trial had demonstrated bias or belief in Petitioner’s
11 guilt by pretrial rulings, including denying release on Petitioner’s
12 own recognizance during video arraignment, granting a restraining
13 order against Petitioner’s contact with the victim, declining to
14 permit Petitioner’s wife to testify at the preliminary hearing,
15 finding probable cause and holding Petitioner to answer on the
16 charges, granting the prosecutor’s in limine motions to admit
17 evidence of prior domestic violence, granting a body attachment to
18 bring Petitioner’s wife to court to testify as a witness, holding an
19 unspecified ex parte hearing, and failing to instruct the jury on
20 the defense of necessity.
The CSC left undisturbed the lower
21 court’s decision declining to consider Petitioner’s claim of
22 judicial bias because of failure to raise the issue in the trial
23 court and on appeal.
24
(LD 16.)
Here, the rulings that were the basis of Petitioner’s challenge
25 were not decisions on the merits of Petitioner’s guilt; they were
26 decisions made either on matters collateral to Petitioner’s guilt or
27 pursuant to standards other than beyond a reasonable doubt, such as
28 probable cause.
These routine pretrial rulings provide no basis for
28
1 concluding that any bias or prejudice entered into the judge’s
2 rulings or had any effect on them.
The mere participation of a
3 judge in a case as an adjudicator in a proceeding does not
4 disqualify the jurist from participating as the trial judge.
A
5 review of the record reflects no basis for a finding that the trial
6 judge here had exceeded a neutral judicial role in ruling on matters
7 presented by the parties.
Compare In re Murchison, 349 U.S. at 137-
8 39 (due process was violated where the judge who conducted a one9 person grand jury investigation and brought charges also served as
10 the trier of fact on same charge); Lo-Ji Sales, Inc. v. New York,
11 442 U.S. 319, 321-27 (1979) (search warrant invalid if issuing
12 magistrate abandoned the neutral judicial role to aid police in
13 executing a warrant and thereby became part of what was essentially
14 a police operation).
15
In sum, Petitioner has not shown that the trial court abandoned
16 its neutral judicial role, prejudged the case, or reasonably
17 appeared to have prejudged the case.
18 the presumption of regularity.
Petitioner has not rebutted
Whether the claim is judged under
19 the deferential standard of § 2254(d) or under the more demanding
20 standard of de novo review, Petitioner has not shown a violation of
21 his right to a fair and impartial tribunal.
Cf. Knowles v.
22 Mirzayance, 556 U.S. 111, 123-24 (2009).
23
Accordingly, it will be recommended that Petitioner’s due
24 process claim concerning a biased trial judge be denied.
25
26
27
28
VIII.
Ineffective Assistance of Counsel for Failure to Move to
Recuse the Trial Court Judge
Petitioner alleges he was denied his right to the effective
assistance of counsel by trial counsel’s failure to move to recuse
29
1 the trial court after it had signed an document evincing a belief in
2 the Petitioner’s guilt.
3
(SAP, doc. 29, 7.)
As set forth aboce, where a request for relief is not
4 meritorious or is otherwise futile, it is not unreasonable for
5 counsel to fail to request the relief, and such an omission is not
6 prejudicial.
Counsel’s failure to move to recuse the trial judge
7 was not objectively unreasonable because any motion to recuse the
8 judge would not have been successful.
In any event, Petitioner has
9 not shown that it was prejudicial.
10
The same analysis applies to Petitioner’s allegation that he
11 was denied his right to the effective assistance of counsel when
12 appellate counsel failed to raise both judicial bias and the
13 ineffective assistance of trial counsel for having failed to raise
14 the issue of judicial bias.
15
(SAP, doc. 29, 8.)
Accordingly, it will be recommended that the Court deny
16 Petitioner’s IAC claims concerning the failure to raise the bias of
17 the trial court.
18
IX.
Certificate of Appealability
19
Unless a circuit justice or judge issues a certificate of
20 appealability, an appeal may not be taken to the Court of Appeals
21 from the final order in a habeas proceeding in which the detention
22 complained of arises out of process issued by a state court.
28
23 U.S.C. ' 2253(c)(1)(A); Miller-El v. Cockrell, 537 U.S. 322, 336
24 (2003).
A district court must issue or deny a certificate of
25 appealability when it enters a final order adverse to the applicant.
26 Rule 11(a) of the Rules Governing Section 2254 Cases.
27
A certificate of appealability may issue only if the applicant
28 makes a substantial showing of the denial of a constitutional right.
30
1 ' 2253(c)(2).
Under this standard, a petitioner must show that
2 reasonable jurists could debate whether the petition should have
3 been resolved in a different manner or that the issues presented
4 were adequate to deserve encouragement to proceed further.
Miller-
5 El v. Cockrell, 537 U.S. at 336 (quoting Slack v. McDaniel, 529 U.S.
6 473, 484 (2000)).
A certificate should issue if the Petitioner
7 shows that jurists of reason would find it debatable whether: (1)
8 the petition states a valid claim of the denial of a constitutional
9 right, and (2) the district court was correct in any procedural
10 ruling.
11
Slack v. McDaniel, 529 U.S. 473, 483-84 (2000).
In determining this issue, a court conducts an overview of the
12 claims in the habeas petition, generally assesses their merits, and
13 determines whether the resolution was debatable among jurists of
14 reason or wrong.
Id.
An applicant must show more than an absence
15 of frivolity or the existence of mere good faith; however, the
16 applicant need not show that the appeal will succeed.
Miller-El v.
17 Cockrell, 537 U.S. at 338.
18
Here, it does not appear that reasonable jurists could debate
19 whether the petition should have been resolved in a different
20 manner.
Petitioner has not made a substantial showing of the denial
21 of a constitutional right.
Accordingly, it will be recommended that
22 the Court decline to issue a certificate of appealability.
23
X.
Recommendations
24
Based on the foregoing, it is RECOMMENDED that:
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1) The second amended petition for writ of habeas corpus be
26 DENIED;
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2) Judgment be ENTERED in favor of Respondent; and
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3) The Court DECLINE to issue a certificate of appealability.
31
1
These findings and recommendations are submitted to the United
2 States District Court Judge assigned to the case, pursuant to the
3 provisions of 28 U.S.C. ' 636 (b)(1)(B) and Rule 304 of the Local
4 Rules of Practice for the United States District Court, Eastern
5 District of California.
Within thirty (30) days after being served
6 with a copy, any party may file written objections with the Court
7 and serve a copy on all parties.
Such a document should be
8 captioned AObjections to Magistrate Judge=s Findings and
9 Recommendations.@
Replies to the objections shall be served and
10 filed within fourteen (14) days (plus three (3) days if served by
11 mail) after service of the objections.
The Court will then review
12 the Magistrate Judge=s ruling pursuant to 28 U.S.C. ' 636 (b)(1)(C).
13 The parties are advised that failure to file objections within the
14 specified time may result in the waiver of rights on appeal.
15 Wilkerson v. Wheeler, 772 F.3d 834, 838-39 (9th Cir. 2014) (citing
16 Baxter v. Sullivan, 923 F.2d 1391, 1394 (9th Cir. 1991)).
17
18
19 IT IS SO ORDERED.
20
21
Dated:
May 27, 2015
/s/ Sheila K. Oberto
UNITED STATES MAGISTRATE JUDGE
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