Briggs v. Ducart

Filing 23

FINDINGS and RECOMMENDATIONS to deny 1 Petition for Writ of Habeas Corpus signed by Magistrate Judge Michael J. Seng on 8/1/2017. Referred to Judge Anthony W. Ishii; Objections to F&R due by 9/5/2017. (Lundstrom, T)

1
2
3
4
5
6
7

UNITED STATES DISTRICT COURT

8

EASTERN DISTRICT OF CALIFORNIA

9
10

JOHNNY LEE BRIGGS,
Petitioner,

11
v.

12
13

Case No. 1:15-cv-01052-AWI-MJS (HC)
FINDINGS AND RECOMMENDATION TO
DENY PETITION FOR WRIT OF HABEAS
CORPUS

C.E. DUCART, Warden
THIRTY (30) DAY OBJECTION DEADLINE
Respondent.

14
15
16
17
18

Petitioner is a state prisoner proceeding pro se with a petition for writ of habeas

19

corpus under 28 U.S.C. § 2254. Respondent is represented by David Andrew Eldridge of

20

the Office of the California Attorney General.

21

The petition raises three claims, which may be summarized essentially as follows:

22

(1) Petitioner’s conviction violates the protection against double jeopardy, (2) the

23

prosecution failed to disclose potentially exculpatory evidence to the jury, and (3) the

24

California Department of Corrections and Rehabilitation has failed to properly record his

25

conviction history resulting in unlawful detention. (ECF No. 1 at 4-5.) For the reasons set

26

forth below, the undersigned recommends the petition be denied.

27

///

28

1

I.

Procedural History

2

Petitioner is currently in the custody of the California Department of Corrections

3

and Rehabilitation pursuant to an October 22, 2010 judgment of the Fresno County

4

Superior Court, imposing a determinate thirteen year and eight month sentence for

5

evading and resisting police, cocaine base transport, and unlawful weapons possession.

6

(Lodged Doc. 1 at 204-05.)

7

Petitioner appealed, raising two issues: insufficiency of the evidence and failure to

8

instruct on an included offense. (Lodged Doc. 5.) The California Court of Appeal for the

9

Fifth Appellate District affirmed. People v. Briggs, No. F061223, 2012 WL 363872, at *1–

10

3 (Cal. Ct. App. Feb. 6, 2012). On April 11, 2012, the California Supreme Court

11

summarily denied review. (Lodged Doc. 8.)

12

Petitioner filed numerous petitions for writ of habeas corpus in the California state

13

courts.1 He also filed numerous other appeals, motions, petitions, and civil actions

14

attempting to challenge his conviction and sentence. The Court has received the

15

following state habeas petitions challenging Petitioner’s conviction and sentence2:

16
1.

Fresno County Superior Court, No. 10CRWR680121
Filed: October 10, 2010;
Denied: December 1, 2010;

2.

California Court of Appeal, Fifth Appellate District, No F061701
Filed: January 10, 2011
Denied: February 8, 2011

3.

Fresno County Superior Court, No. 11CRWR680310
Filed: March 22, 2011
Denied: June 20, 2011

4.

17

Fresno County Superior Court, No. 11CRWR680703
Filed: December 15, 2011

18
19
20
21
22
23
24
1

25
26
27
28

Counsel expressed some difficulty in obtaining a complete record of Petitioner’s state habeas filings.
(ECF No. 16.) Additionally, Petitioner appears to have continued filing state petitions well after filing his
federal petition. The Court herein addresses only those petitions submitted by Respondent with the
answer. A review of the California Supreme Court docket reflects that Petitioner has not filed any further
petitions with that court, other than those noted here.
2
Under the mailbox rule, the Court deems petitions filed on the date Petitioner handed a petition to prison
authorities for mailing. Houston v. Lack, 487 U.S. 266, 276 (1988); Campbell v. Henry, 614 F.3d 1056 (9th
Cir. 2010); see also Rule 3(d) of the Rules Governing Section 2254 Cases.

2

1
2

Denied: April 10, 2012
5.

California Supreme Court, No. S199983
Filed: February 6, 2012
Denied: May 9, 2012

6.

California Court of Appeal, Fifth Appellate District, No. F064609
Filed: April 1, 2012
Denied: April 12, 2012

7.

California Court of Appeal, Fifth Appellate District, No. 064820
Filed: April 17, 2012
Denied: July 10, 2012

8.

Fresno County Superior Court, No. 12CRWR680867
Filed: April 17, 2012
Denied: June 18, 2012

9.

California Supreme Court, No. S206512
Filed: November 6, 2012
Denied: January 16, 2013

10.

California Court of Appeal, Fifth Appellate District, No. F066089
Filed: November 8, 2012
Denied: November 26, 2012

11.

Fresno County Superior Court, No. 12CRWR681210
Filed: November 23, 2012
Denied: February 5, 2013

12.

Fresno County Superior Court, No. 13CRWR681291
Filed: February 4, 2013
Denied: March 25, 2013

13.

California Supreme Court, No. S209018
Filed: February 25, 2013
Denied: May 1, 2013

14.

Fresno County Superior Court, No. 13CRWR681339
Filed: March 14, 2013
Denied: May 13, 2013

15.

Fresno County Superior Court, No. 13CRWR681372
Filed: March 21, 2013
Denied: May 13, 2013

16.

Fresno County Superior Court, No. 13CRWR681380
Filed: March 26, 2013
Denied: May 17, 2013

17.

Fresno County Superior Court, No. 13CRWR681794
Filed: November 4, 2013
Denied: January 2, 2014

3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28

3

1

18.

Fresno County Superior Court, No. 14CRWR681942
Filed: January 30, 2014
Denied: March 20, 2014

19.

Fresno County Superior Court, No. 14CRWR682124
Filed: June 19, 2014
Denied: July 15, 2014

20.

Fresno County Superior Court, No. 14CRWR682461
Filed: December 1, 2014
Denied: January 6, 2015

2
3
4
5
6
7

(See Postconviction Collateral Documents (“PCD”), Lodged Docs. 9-10.)

8

Petitioner filed three petitions in the California Supreme Court, all of which appear

9

to have raised issues presented in the instant petition. In the first of these, No. S199983,

10

Petitioner claimed, amongst other things, that exculpatory evidence was withheld from

11

him at trial and his conviction violated double jeopardy. (PCD at 39-45.) On May 9, 2012,

12

the California Supreme Court denied the petition, citing In re Swain, 34 Cal. 2d 300, 304

13

(1949). (PCD at 38.)

14

In the second petition, No. S206512, Petitioner alleged double jeopardy

15

violations, withholding of exculpatory evidence, and sentencing errors. (PCD at 79-94.)

16

On January 16, 2013, the Supreme Court summarily rejected these claims, citing to In re

17

Clark, 5 Cal. 4th 750, 767-769 (1993); In re Swain, 34 Cal. 2d 300, 304 (1949); and In re

18

Miller, 17 Cal. 2d 734, 735 (1941). (PCD at 78.)

19

In the third petition, No. S209018, Petitioner claimed that “Federal Auditers” (sic)

20

investigated his case and determined that he had been resentenced to a term of three

21

years and four months and was eligible for release on December 22, 2012. However,

22

Petitioner was not released on that date and CDCR refused to change his prison records

23

to reflect the accurate release date. Accordingly, Petitioner contends, he was

24

erroneously held in custody when he should have been released on parole. He also

25

claimed that the Fifth District Appellate Court partially reversed his conviction but refused

26

to send an amended remittitur to the prison. (PCD at 274-75.) On May 1, 2013, the

27
28
4

1

California Supreme Court summarily denied the petition with citation to People v. Duvall,

2

9 Cal. 4th 464, 474 (1995), and In re Dexter, 25 Cal. 3d 921, 925-26 (1979).

3

Petitioner filed the instant petition on July 9, 2015. (ECF No. 1.) Respondent filed

4

an answer on February 24, 2016. (ECF No. 19.) Petitioner filed no traverse and the time

5

for doing so has passed. The matter is submitted and stands ready for adjudication.

6

II.

7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25

Factual Background
At 1:30 a.m. on April 6, 2010, Fresno Police Officer Richard
Morales was on duty in a marked patrol car in downtown
Fresno. Officer Morales stopped for a red light at the
intersection of Kern and F Streets, and his patrol car faced
north on F Street. As Morales waited at the signal, a vehicle
proceeded south through the intersection without stopping for
the red light. Morales made a U-turn, activated the overhead
lights and siren on the patrol car, and began to follow the
vehicle. The vehicle continued southbound on F Street and
then turned left onto Inyo Street.
At the intersection of Inyo and F Streets, the vehicle traveled
in a circle three times in the intersection. Officer Morales
followed the vehicle and saw appellant behind the wheel.
Morales said appellant's tires were “breaking traction.” After
appellant completed the third circle in the intersection, he
drove south at a high rate speed on F Street toward Ventura
Street.
Appellant turned right onto Ventura and did not stop for a
posted stop sign. Morales said there was a great deal of
“pedestrian traffic” on Ventura and he turned off the overhead
lights of the patrol car for that reason. Appellant proceeded
west on Ventura and did not stop for red lights at the
intersections of Ventura and C and B streets. Appellant
eventually turned left and drove south on Elm Avenue.
Morales lost sight of appellant's car as it went through a
curve on Elm Avenue but then saw the vehicle again at the
intersection of Elm and Church Avenues. Morales lost sight of
appellant's car a second time when it made a westbound turn
onto Jensen Avenue. Morales was able to see appellant's car
again on Bardell Avenue. Morales said the car was in a culde-sac about one-quarter mile from where he had last seen it.

26
27
28

Fresno Police Officer Brandon Brown was on patrol duty at
1:30 a.m. on April 6, 2010, and heard Officer Morales on the
police radio. According to Brown, Morales said he was
5

1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27

attempting to stop a vehicle. Officer Brown and his partner,
Officer Nancy Vue, drove south on C Street, turned onto
Ventura, proceeded west to Martin Luther King, Jr.
Boulevard, and then went south. As Officers Brown and Vue
approached the intersection of Martin Luther King, Jr.
Boulevard and East Church Avenue, they heard Officer
Morales say he had last seen the vehicle going west on
Jensen Avenue near Elm Avenue. Brown and Vue traveled
south on Martin Luther King, Jr. Boulevard to the intersection
of Jensen Avenue. Brown saw a car turn onto the street from
East Kaviland Avenue and followed the vehicle.
Brown accelerated the patrol car to catch up to the vehicle.
The car failed to stop for a red light at the intersection of
Martin Luther King, Jr. Boulevard and Jensen Avenue. The
officers continued their pursuit onto East Vine Avenue. When
the car turned onto South Bardell Avenue, Officer Brown
activated the overhead lights of the patrol car. The car turned
into a cul-de-sac, and Officer Brown drove his patrol vehicle
near the car. Officer David Wilkin pulled up in his patrol car
and also stopped. Brown got out of his patrol car, pulled his
service weapon, and ordered the driver to stop his car.
Officer Wilkin also got out of his patrol car, pointed his
weapon, and ordered the driver to stop the vehicle and to
show his hands.
Officer Morales heard a fellow officer say that there was a
gun in the car. Morales and Officer Wilkin pulled appellant out
of his vehicle. As appellant was removed from his car, Brown
looked through the windshield and saw a rifle in the front
passenger seat. Brown told Officer Wilkin about the rifle and
then Brown heard appellant say he was “strapped.” Wilkin
picked up a loaded handgun from appellant's lap and placed
it on the roof of his car. Officers then escorted appellant to
the rear seat of one of the patrol cars.
Officer Brown described the rifle as “an AK–47 type rifle” with
a wooden stock, a 30–round magazine, and “a pistol grip just
below the action of the weapon.” Brown said the handgun
was a revolver, and a search of the interior of the car yielded
several .38–caliber bullets. Officer Wilkin searched appellant
incident to his arrest and found a plastic bag in appellant's left
front jacket pocket. The bag contained an off-white rock-like
substance. Wilkin also found a similar bag containing the
same type of substance in appellant's right front jacket
pocket.

28
6

1

According to Officer Wilkin, appellant became agitated after
he was handcuffed. Appellant told Officer Wilkin he was
going to be out of jail within four hours, was going to find out
where Wilkin lived, and was going to visit his home. Wilkin
said appellant's threat was cause for concern. At 1:40 a.m.,
Officer Marcus Gray went to the scene and took appellant
into custody. Officer Gray drove appellant in his patrol car to
University Medical Center to have a blood sample taken.
Gray said appellant was extremely quiet en route to the
hospital. Upon arrival, Gray said appellant “began rapping,
making different threats through his lyrics in the raps.”
Appellant eventually threatened to beat Officer Gray and
other police personnel at the medical center.

2
3
4
5
6
7
8
9

After medical personnel completed the blood test, Officer
Gray took appellant to be booked at Fresno County Jail. On
the way to the jail, appellant told Officer Gray that he should
not make any statements or write any reports. According to
Gray, appellant said, “‘The [police] department was using me
[Gray] as [a] pawn just because I was black.’” Although both
appellant and Gray are African–American, appellant
threatened to kill Gray because “‘that uniform's all the same.’”
“‘It's not disrespect, it's nothing personal, strictly business.’”
Appellant also told Gray not to enter the jail with him because
if Gray did so, “I wrote myself a death certificate.” Gray said
appellant was booked in the jail without incident.

10
11
12
13
14
15
16

20

The parties stipulated that the off-white substance in the
plastic bag taken from appellant's front jacket pocket
consisted of 13.99 grams of cocaine base, a usable amount.
The parties further stipulated that appellant had a bloodalcohol content of 0.07 at the time his blood was drawn at the
hospital, but hospital personnel did not detect any cocaine,
opiates, PCP, or methamphetamines in the blood.

21

Defense Evidence

22

Appellant did not present any documentary or testimonial
evidence but chose to rely on the state of the prosecution
evidence.

17
18
19

23
24
25

People v. Briggs, No. F061223, 2012 WL 363872, at *1–3 (Cal. Ct. App. Feb. 6, 2012)

26

///

27

///

28
7

1

III.

Jurisdiction and Venue

2

Relief by way of a writ of habeas corpus extends to a prisoner under a judgment

3

of a state court if the custody violates the Constitution, laws, or treaties of the United

4

States. 28 U.S.C. § 2254(a); 28 U.S.C. § 2241(c)(3); Williams v. Taylor, 529 U.S. 362,

5

375 n.7 (2000). Petitioner asserts that he suffered a violation of his rights as guaranteed

6

by the U.S. Constitution. Petitioner was convicted and sentenced in this district. 28

7

U.S.C. § 2241(d); 2254(a). The Court concludes that it has jurisdiction over the action

8

and that venue is proper.

9

IV.

Review of Petition

10

A.

11

Petitioner claims that his conviction was obtained in violation of the double

12

jeopardy clause of the Fifth Amendment. Petitioner’s entire description of this claim is as

13

follows:

14
15
16
17
18
19
20
21
22
23
24
25
26
27

Claim One: Double Jeopardy

Convictions reinstated by appeal by prosecution after two
dismissal and discharge from custody without new evidence
or amended charges to felony complaint Petitioner released
twice from post conviction relief remanded back to custody
with out hearing.
(ECF No. 1 at 4.)
Based on Petitioner’s state court petitions (see PCD at 41, 91, 93), it appears that
this claim is based on the alleged dismissal of some or all of the charges against
Petitioner prior to trial, and the subsequent reinstatement of those charges without the
presentation of new or additional evidence. As stated, the California Supreme Court
summarily denied the state court petitions with citation to In re Clark, 5 Cal. 4th 750, 767769 (1993); In re Swain, 34 Cal. 2d 300, 304 (1949); and In re Miller, 17 Cal. 2d 734,
735 (1941). (PCD at 78.) The cited pages of In re Clark stand for the proposition that
state habeas review is barred for “repeated applications” that have been “previously
rejected” as well as review of “newly presented grounds for relief which were known to
the petitioner at the time of a prior collateral attack on the judgment.” 5 Cal. 4th at 767-

28
8

1

68. The cited pages of In re Swain stand for the proposition that a California habeas

2

petition must state “with particularity” the facts upon which relief is sought, and vague

3

and conclusory allegations will not suffice. 34 Cal. 2d at 304. The cited pages of In re

4

Miller stand for the proposition that the claim was presented in a prior petition and is

5

being denied in the second petition on the same grounds as it was denied on in the first

6

one.3 See Kim v. Villalobos, 799 F.2d 1317, 1319 n.1 (1986).

7

These citations, taken together, leave unclear the basis for the California

8

Supreme Court’s denial of Petitioner’s double jeopardy claim. It may be that the Court

9

determined that the claim was merely unexhausted, see Kim, 799 F.2d at 1319 (holding

10

that citation to In re Swain indicates that claims are unexhausted), or that it was

11

procedurally barred, see Briggs v. State, No. 15-CV-05809-EMC, 2017 WL 1806495, at

12

*6 (N.D. Cal. May 5, 2017) (collecting cases and concluded that a citation to In re Clark

13

is a state procedural bar that is adequate and independent of federal law and that the

14

relevant claim is therefore procedurally defaulted).

15

Regardless of these deficiencies, the claim is not colorable. Even assuming this

16

claim has not been properly pursued in state court, it may be denied. 28 U.S.C.

17

§ 2254(b)(2) “In the case of a jury trial, jeopardy attaches when a jury is empaneled and

18

sworn.” Serfass v. United States, 420 U.S. 377, 388 (1975) (citations omitted). The

19

United States Supreme Court has “consistently adhered” to the view that jeopardy does

20

not attach, and the Fifth Amendment’s prohibition against double jeopardy has no

21

application “until a defendant is put to trial before the trier of facts, whether the trier be a

22

jury or a judge.” Id. (citation and quotation marks omitted).

23

Here, it appears Petitioner’s claim rests on the dismissal and re-filing of charges

24

against him prior to trial. Because jeopardy had not attached at the time the charges

25

allegedly were dismissed, he cannot state a double jeopardy claim. This claim is not

26

colorable and should be denied.

27
28

3

Here, the prior petition was summarily denied with citation to In re Swain.

9

1

B.

2

Petitioner appears to contend that the prosecution withheld favorable evidence

3

from the jury. Petitioner describes this claim as follows:

4

prosecution failed to disclose vital information to jury of
evidence seized without consent or valid search warrant and
withheld or consealed [sic] law enforcement officers
misconduct of contaminated tampered evidence reports by
Internal Affairs witch [sic] would have been favorable to
petitioner.

5
6
7
8

Claim Two: Failure to Disclose Evidence

(ECF No. 1 at 4.)

9

As with his double jeopardy claim, Petitioner raised this claim in his petitions to

10

the California Supreme Court and the court summarily denied the petitions with citation

11

to In re Clark, 5 Cal. 4th 750, 767-769 (1993); In re Swain, 34 Cal. 2d 300, 304 (1949);

12

and In re Miller, 17 Cal. 2d 734, 735 (1941). (PCD at 78.) Nonetheless, even assuming

13

this claim has not been properly pursued in state court, it may be denied. 28 U.S.C.

14

§ 2254(b)(2)

15

Due process requires that the prosecution disclose to the defense exculpatory

16

evidence within its possession. Brady v. Maryland, 373 U.S. 83, 87, 83 S. Ct. 1194, 10 L.

17

Ed. 2d 215 (1963); Towery v. Schriro, 641 F.3d 300, 309 (9th Cir. 2010). There are three

18

components of a Brady violation: "[1] [t]he evidence at issue must be favorable to the

19

accused, either because it is exculpatory, or because it is impeaching; [2] that evidence

20

must have been suppressed by the State, either willfully or inadvertently; and [3]

21

prejudice must have ensued." Banks v. Dretke, 540 U.S. 668, 691, 124 S. Ct. 1256, 157

22

L. Ed. 2d 1166 (2004). Evidence is "favorable to the accused" for Brady purposes if it is

23

either exculpatory or impeaching. Strickler v. Greene, 527 U.S. 263, 281-82 (1999). If

24

information would be "advantageous" to the defendant, Banks v. Dretke, 540 U.S. 668,

25

691, or "would tend to call the government's case into doubt," Milke v. Ryan, 711 F.3d

26

998, 1012 (9th Cir. 2013), it is favorable. Comstock v. Humphries, 786 F.3d 701, 708

27

(9th Cir. 2015).

28
10

1

Brady, however, only requires that the prosecution disclose exculpatory evidence

2

to the defense. It does not require the prosecution to present favorable evidence to the

3

jury. Petitioner’s claim appears to be based solely on the prosecution’s failure to present

4

evidence to the jury. Indeed, in his state court petition, he specifies that issues of

5

evidence tampering were addressed prior to trial. (PCD at 41.) Thus, his contentions

6

appear to be based entirely on the proposition that the prosecution did not present such

7

evidence to the jury. This claim is not colorable and should be denied.

8

C.

9

Petitioner third claim is difficult to discern. It reads as follows:

10
11
12
13
14

Claim Three: Conviction History

Conviction obtained by exsculpatory [sic] classification of
entry of judgment dismissal & reversal. Recorded sentence
legal status is purposely not being amended by necessary
delay in certification of abstract transcripts sentence
reduction entry of dismissal and reversal of convictions
history by CDCR records analyst causing illegal detention.
(ECF No. 1 at 5.)

15

In the California Supreme Court, Petitioner contended that his conviction was

16

partially vacated by the Fifth District Appellate Court and that he was resentenced to a

17

term of three years and four months, but that CDCR refuses to update his conviction

18

history to reflect these changes. (See PCD 274-75). The California Supreme Court

19

denied these claims with citation to People v. Duvall, 9 Cal. 4th 464, 474 (1995), and In

20

re Dexter, 25 Cal. 3d 921, 925-26 (1979).

21

Under California law, a denial of a habeas petition with a citation to Duvall

22

indicates that a petitioner has failed to state his claim with sufficient particularity for the

23

state court to examine the merits of the claim, and/or has failed to “include copies of

24

reasonably available documentary evidence supporting the claim, including pertinent

25

portions of trial transcripts and affidavits or declarations.” Duvall, 9 Cal. 4th at 474.

26

Citation to Duvall is an indication that the petition was insufficiently pleaded. The claims

27

contained therein are considered unexhausted. The citation to In re Dexter indicates the

28
11

1

California Supreme Court determined that Petitioner failed to exhaust administrative

2

remedies. Thus, this claim is not exhausted.

3

Nevertheless, this claim may be denied because it is plainly meritless. See

4

Cassett v. Stewart, 406 F.3d 614, 624 (9th Cir. 2005); 28 U.S.C. § 2254(b)(2). None of

5

the decisions of the Fifth District Court of Appeal vacated Petitioner’s convictions.

6

Petitioner has no hope of prevailing on this claim.

7

V.

8
9

Conclusion and Recommendation
Based on the foregoing, it is HEREBY RECOMMENDED that the petition for writ

of habeas corpus be DENIED.

10

The findings and recommendation are submitted to the United States District

11

Judge assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(1). Within

12

thirty (30) days after being served with the findings and recommendation, any party may

13

file written objections with the Court and serve a copy on all parties. Such a document

14

should be captioned “Objections to Magistrate Judge’s Findings and Recommendation.”

15

Any reply to the objections shall be served and filed within fourteen (14) days after

16

service of the objections. The parties are advised that failure to file objections within the

17

specified time may result in the waiver of rights on appeal. Wilkerson v. Wheeler, 772

18

F.3d 834, 839 (9th Cir. 2014) (citing Baxter v. Sullivan, 923 F.2d 1391, 1394 (9th Cir.

19

1991)).

20
21
22
23

IT IS SO ORDERED.
Dated:

August 1, 2017

/s/

Michael J. Seng

UNITED STATES MAGISTRATE JUDGE

24
25
26
27
28
12