Stolp v. Holland

Filing 41

FINDINGS and RECOMMENDATION to Deny Petition for Writ of Habeas Corpus 1 , signed by Magistrate Judge Jennifer L. Thurston on 3/28/2018: 21-Day Objection Deadline. (Hellings, J)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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GERALD H. STOLP,

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Petitioner,

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v.
JOSIE GASTELO,1 Warden,

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Respondent.

No. 1:16-cv-00560-LJO-JLT (HC)
FINDINGS AND RECOMMENDATION
TO DENY PETITION FOR WRIT OF
HABEAS CORPUS
[TWENTY-ONE DAY OBJECTION
DEADLINE]

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Petitioner is currently serving a 75-years-to-life sentence in state prison for his conviction

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of three counts of burglary. He has filed the instant habeas action challenging the conviction. As

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discussed below, the Court finds the claims to be without merit and recommends the petition be

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DENIED.

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I.

PROCEDURAL HISTORY
On November 16, 2011, Petitioner was found guilty in the Calaveras County Superior

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Court of three counts of first degree burglary (Cal. Penal Code § 459). (Doc. 1 at 1.2) The jury

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also found true allegations that he had suffered two prior serious or violent felony convictions

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under California’s “Three Strikes” law. (Doc. 1 at 1.) On December 16, 2011, he was sentenced

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to an indeterminate term of 75-years-to-life. (Doc. 1 at 1.)

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Pursuant to Rule 25(d) of the Federal Rules of Civil Procedure, Josie Gastelo, the current Warden of California
Men’s Colony, is hereby substituted for Kim Holland, the former Warden.
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Page references are to ECF pagination.

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Petitioner appealed to the California Court of Appeal, Third Appellate District (“Third

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DCA”). The Third DCA affirmed the judgment on January 5, 2015. People v. Stolp, 2015 WL

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67037, at *1 (Cal.Ct.App. 2015). On February 6, 2015, Petitioner filed a petition for review in

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the California Supreme Court. (LD 18.3) The petition was denied on March 11, 2015. (LD 19.)

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Petitioner filed two petitions for writ of habeas corpus in the Calaveras County Superior

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Court relevant to the claims presented herein. On March 4, 2016, he filed the first one, and it was

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denied the same day. (LD 20, 21.) On August 16, 2016, he filed the second one, which was also

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denied the same day. (LD 22, 23.) On October 17, 2016, he filed a habeas petition in the Third

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DCA. (LD 24.) The appellate court denied the petition on October 28, 2016. (LD 25.) On

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March 3, 2017, he filed a habeas petition in the California Supreme Court. (LD 26.) The

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California Supreme Court denied the petition on April 12, 2017, with citation to In re Robbins, 18

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Cal.4th 770, 780 (1998).

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On March 15, 2016, Petitioner filed the instant petition for writ of habeas corpus in this

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Court. (Doc. 1.) The Court stayed the petition pending exhaustion of state remedies. (Doc. 10.)

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After the stay was lifted, Respondent filed an answer on February 2, 2018. (Doc. 35.) Petitioner

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did not file a traverse.

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II.

FACTUAL BACKGROUND

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The Court adopts the Statement of Facts in the Third DCA’s unpublished decision4:

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Several vacation homes in the Arnold area of Calaveras County were burglarized
in late January or early February 2002. Defendant had lived in the area as a child.
None of the victims knew defendant or gave him permission to enter their home.

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On February 7, 2002, victim David Smith got a phone call from a neighbor saying
Smith's home on Murphys Drive had been burglarized. The burglar entered Smith's
home through a sliding glass door on the back deck. A rifle, shotgun, ammunition,
hunting knives, and a pillowcase were missing. A shotgun had been discharged
into a mattress. Smith had last been at the vacation home on January 21, 2002.

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On February 11, 2002, Des Martinez received a phone call that her home on
Stanislaus Drive had been burglarized. A window pane in the front door was
broken, and items were missing. She had last been at the house around noon on
February 3, 2002. The count involving Martinez was ultimately dismissed after the

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“LD” refers to the documents lodged by Respondent with the answer.
The Fifth DCA’s summary of facts in its unpublished opinion is presumed correct. 28 U.S.C. §§ 2254(d)(2), (e)(1).
Therefore, the Court will rely on the Fifth DCA’s summary of the facts. Moses v. Payne, 555 F.3d 742, 746 (9th Cir.
2009).
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jury was unable to reach a verdict.

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On February 13, 2002, Ronald Peterson learned his home had been burglarized
when he went there after receiving a phone bill for calls he did not make, including
several “900” numbers, between January 27 and February 3, 2002. He had last
been at the house on January 21, 2002. He found the door kicked open. Inside was
a mess, with food wrappers, clothing, alcohol bottles, and bullet casings lying
around. There were bullet holes in the walls and a burnout spot in the linoleum.
Items missing included knives, ammunition, a shotgun, silverware, televisions,
VCR, speakers, and a microwave. Defendant's fingerprints were found on bottles
and an armrest. Police also found a letter addressed to a Patty Miles, whose Subaru
defendant admittedly stole on January 24, 2002. One of the phone calls made from
Peterson's home was to defendant's friend Gary Rowe. Peterson's trash cans
contained a February 2, 2002, grocery receipt from Big Trees Market; handwritten
notes including several “900” numbers; and a receipt for a pizza ordered by
“Jerry,” defendant's nickname. Surveillance video from the market showed a
person who looked like defendant buying the items listed on the receipt found in
Peterson's home. A prosecution investigator gave a lay opinion that the
handwriting was defendant's. Smith's knives, bag, ammunition, and Smith's
shotgun were also found in the Peterson home.

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On February 14, 2002, Robert Mugford learned his home had been burglarized
when he went there after receiving a phone bill for $1,800, including international
calls and calls to 900 numbers, made between February 1st and 3rd, 2002. He
found the door kicked in and a window broken. Mugford had last been at the house
on January 15, 2002. Missing items included a lamp, clothing, most of the
electronics, and a pillowcase. The pillowcase was later found in Peterson's home.
DNA from four cigarette butts in Mugford's home matched defendant's DNA
profile. Peterson's phone was found in Mugford's house.
The defense called as a witness defendant's friend and former cellmate, Joseph
Solar. Defendant stayed at Solar's home for up to a week-and-a-half in January or
February 2002, until they had an argument. Defendant later apologized and asked
for help cashing a check.
Defendant testified he was paroled on a prior conviction on January 17, 2002. He
stayed with Rowe in Grass Valley for a couple of days and then stayed with Solar
until their fight. Defendant admitted he stole Miles's Subaru on January 24, 2002.
He slept in the car for a few nights and then called Rowe for a place to stay. After
talking to Rowe, defendant went to meet a man at a bar. The man led defendant to
a house (Peterson's home). A woman was already inside. Defendant did not see
any broken windows or doors. Defendant stayed there for three to five days until
he obtained his final paycheck from a job he had before he went to prison. Other
people came in and out of the house. Defendant did not recall using the house
phone but may have. Defendant denied taking anything. He did not recall
patronizing the market or restaurant but could not say for sure that he did not, and
he acknowledged it looked like him in the market surveillance video. He did not
think the handwriting on the papers looked like his handwriting.
Defendant denied ever being in the other victims' homes. He conceded cigarette
butts with his DNA were found in the Mugford house but felt “[s]omebody else
put them there.”
Defendant said Solar helped him cash the paycheck. Defendant then visited Rowe.
Rowe's girlfriend, a flight attendant, booked a plane ticket to Virginia for him.
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Defendant testified his girlfriend in Virginia had wired him money for the ticket.
He drove to the Reno airport, where he left Miles's car and caught his flight. He
did not know what day this was but said he was “pretty sure” he was gone by
February 2, 2002.

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Pest control records indicated routine service to the Smith home on February 5,
2002. Pest control technician Louis Alexander testified he serviced the Smith
house but had no independent recollection of that day. He did not recall seeing
signs of a break-in, but generally he just sprayed the perimeter, sometimes from 30
feet away. Smith had testified there were closed vertical blinds covering the area
of broken glass on the upper rear deck where the burglar entered. The upper deck
sticks out over the hillside. Smith, who has taken over his own pest control, sprays
under the deck where the house meets the ground but does not spray on top of the
deck.

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A defense handwriting expert opined the handwritten notes had more than one
author and perhaps as many as four and were inconsistent with defendant's
handwriting. The expert acknowledged some “6's” were consistent with
defendant's handwriting, but said everyone's 6's have some similarity.

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During deliberations, the jury sent a question to the court, stating it had reached a
decision on three counts but wanted to know how to complete the verdict form on
Count II (victim Martinez) because the jury was “split 11–1 on the Defendant's
guilt. The one has no intention of changing their mind, as well as the 11 will not
change.”

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The jury returned verdicts finding defendant guilty on three of the four burglary
counts (victims Smith, Peterson, and Mugford). The jury found true a special
allegation that the prosecution commenced within the three-year statute of
limitations. The jury found true that defendant had prior convictions for first
degree burglary in 1991 and 2001.

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The court declared a mistrial on Count II (victim Martinez) and later dismissed it
on the People's motion.

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In December 2011, the trial court sentenced defendant to three consecutive terms
of 25 years to life, for an aggregate term of 75 years to life.

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Stolp, 2015 WL 67037, at *1–3.

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III.

DISCUSSION

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A.

Jurisdiction

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Relief by way of a petition for writ of habeas corpus extends to a person in custody

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pursuant to the judgment of a state court if the custody is in violation of the Constitution, laws, or

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treaties of the United States. 28 U.S.C. § 2254(a); 28 U.S.C. § 2241(c)(3); Williams v. Taylor,

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529 U.S. 362, 375 n. 7 (2000). Petitioner asserts that he suffered violations of his rights as

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guaranteed by the United States Constitution. The challenged conviction arises out of the

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Calaveras County Superior Court, which is located within the jurisdiction of this court. 28 U.S.C.
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§ 2254(a); 28 U.S.C.§ 2241(d).

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On April 24, 1996, Congress enacted the Antiterrorism and Effective Death Penalty Act of

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1996 (“AEDPA”), which applies to all petitions for writ of habeas corpus filed after its

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enactment. Lindh v. Murphy, 521 U.S. 320 (1997) (holding the AEDPA only applicable to cases

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filed after statute’s enactment). The instant petition was filed after the enactment of the AEDPA

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and is therefore governed by its provisions.

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B.

Legal Standard of Review

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A petition for writ of habeas corpus under 28 U.S.C. § 2254(d) will not be granted unless

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the petitioner can show that the state court’s adjudication of his claim: (1) resulted in a decision

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that was contrary to, or involved an unreasonable application of, clearly established Federal law,

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as determined by the Supreme Court of the United States; or (2) resulted in a decision that “was

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based on an unreasonable determination of the facts in light of the evidence presented in the State

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court proceeding.” 28 U.S.C. § 2254(d); Lockyer v. Andrade, 538 U.S. 63, 70-71 (2003);

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Williams, 529 U.S. at 412-413.

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A state court decision is “contrary to” clearly established federal law “if it applies a rule

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that contradicts the governing law set forth in [the Supreme Court’s] cases, or “if it confronts a set

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of facts that is materially indistinguishable from a [Supreme Court] decision but reaches a

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different result.” Brown v. Payton, 544 U.S. 133, 141 (2005) (citing Williams, 529 U.S. at 405-

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406).

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In Harrington v. Richter, 562 U.S. 86, 101 (2011), the U.S. Supreme Court explained that

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an “unreasonable application” of federal law is an objective test that turns on “whether it is

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possible that fairminded jurists could disagree” that the state court decision meets the standards

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set forth in the AEDPA. The Supreme Court has “said time and again that ‘an unreasonable

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application of federal law is different from an incorrect application of federal law.’” Cullen v.

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Pinholster, 563 U.S. 170, 203 (2011). Thus, a state prisoner seeking a writ of habeas corpus from

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a federal court “must show that the state court’s ruling on the claim being presented in federal

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court was so lacking in justification that there was an error well understood and comprehended in

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existing law beyond any possibility of fairminded disagreement.” Harrington, 562 U.S. at 103.
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The second prong pertains to state court decisions based on factual findings. Davis v.

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Woodford, 384 F.3d 628, 637 (9th Cir. 2003) (citing Miller-El v. Cockrell, 537 U.S. 322 (2003)).

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Under § 2254(d)(2), a federal court may grant habeas relief if a state court’s adjudication of the

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petitioner’s claims “resulted in a decision that was based on an unreasonable determination of the

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facts in light of the evidence presented in the State court proceeding.” Wiggins v. Smith, 539

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U.S. 510, 520 (2003); Jeffries v. Wood, 114 F.3d 1484, 1500 (9th Cir. 1997). A state court’s

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factual finding is unreasonable when it is “so clearly incorrect that it would not be debatable

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among reasonable jurists.” Jeffries, 114 F.3d at 1500; see Taylor v. Maddox, 366 F.3d 992, 999-

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1001 (9th Cir. 2004), cert.denied, Maddox v. Taylor, 543 U.S. 1038 (2004).

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To determine whether habeas relief is available under § 2254(d), the federal court looks to

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the last reasoned state court decision as the basis of the state court’s decision. See Ylst v.

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Nunnemaker, 501 U.S. 979, 803 (1991); Robinson v. Ignacio, 360 F.3d 1044, 1055 (9th Cir.

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2004). “[A]lthough we independently review the record, we still defer to the state court’s

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ultimate decisions.” Pirtle v. Morgan, 313 F.3d 1160, 1167 (9th Cir. 2002).

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The prejudicial impact of any constitutional error is assessed by asking whether the error

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had “a substantial and injurious effect or influence in determining the jury’s verdict.” Brecht v.

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Abrahamson, 507 U.S. 619, 623 (1993); see also Fry v. Pliler, 551 U.S. 112, 119-120 (2007)

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(holding that the Brecht standard applies whether or not the state court recognized the error and

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reviewed it for harmlessness).

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C.

Review of Claims

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The petition presents the following four grounds for relief: 1) The eight-year delay

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between commission of the crimes and arraignment violated Petitioner’s due process and speedy

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trial rights; 2) Appellate counsel rendered ineffective assistance by failing to raise a statute of

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limitations claim; 3) Petitioner’s conviction violated both the state and federal statutes of

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limitations; and 4) The state court violated the remedial provisions of the Interstate Agreement on

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Detainers Act (“IAD”).

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1. Due Process and Speedy Trial Rights
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a. State Court Background

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Petitioner presented this claim to the state courts on direct appeal. In the last reasoned

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decision, the Third DCA denied the claim as follows:
1. Due Process
“‘“[D]elay in prosecution that occurs before the accused is arrested or the
complaint is filed may constitute a denial of the right to a fair trial and to due
process of law under the state and federal Constitutions. A defendant seeking to
dismiss a charge on this ground must demonstrate prejudice arising from the delay.
The prosecution may offer justification for the delay, and the court considering a
motion to dismiss balances the harm to the defendant against the justification for
the delay.” [Citation.]’” (Cowan, supra, 50 Cal.4th at p. 430.)
“Prejudice may be shown by ‘“loss of material witnesses due to lapse of time
[citation] or loss of evidence because of fading memory attributable to the delay.”’
[Citations.] And although the federal constitutional standard for what constitutes
sufficient justification for delay is unclear [citation], [the California Supreme
Court has] noted that ‘the law under the California Constitution is at least as
favorable for defendant in this regard’ as federal law [citation]. Accordingly, ... we
apply California law here.” (Cowan, supra, 50 Cal.4th at pp. 430–431.) “Under the
California standard, ‘negligent, as well as purposeful, delay in bringing charges
may, when accompanied by a showing of prejudice, violate due process. This does
not mean, however, that whether the delay was purposeful or negligent is
irrelevant.’ [Citation.] Rather, ‘whether the delay was negligent or purposeful is
relevant to the balancing process. Purposeful delay to gain an advantage is totally
unjustified, and a relatively weak showing of prejudice would suffice to tip the
scales towards finding a due process violation. If the delay was merely negligent, a
greater showing of prejudice would be required to establish a due process
violation.’ [Citation.] The justification for the delay is strong when there is
‘investigative delay, nothing else.’ [Citation.]” (Cowan, supra, 50 Cal.4th at p.
431.) “‘The statute of limitations is usually considered the primary guarantee
against bringing overly stale criminal charges,’....” (People v. Nelson (2008) 43
Cal.4th 1242, 1250.)
“We review for abuse of discretion a trial court's ruling on a motion to dismiss for
prejudicial prearrest delay [citation], and defer to any underlying factual findings if
substantial evidence supports them [citation].” (Cowan, supra, 50 Cal.4th at p.
431.)
2. Speedy Trial
Under the state Constitution, the right to a speedy trial attaches with the filing of
the felony complaint, which in this case was April 2004. (People v. Martinez
(2000) 22 Cal.4th 750, 754 (Martinez).) Where review is sought after trial, the
defendant must show prejudice. (Id. at p. 755.) “Under the state Constitution's
speedy trial right, ... no presumption of prejudice arises from delay after the filing
of a complaint and before arrest or formal accusation by indictment or information
[citation]; rather, in this situation a defendant seeking dismissal must affirmatively
demonstrate prejudice [citation].” (Id. at p. 755, original italics.) In reviewing
application of facts found to the legal question whether the defendant was denied
his right to a speedy trial, our review is de novo. (People v. Cromer (2001) 24
Cal.4th 889, 894.)
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The federal constitutional right to a speedy trial allows prejudice to be presumed if
the delay is “uncommonly long,” but the federal right does not attach until the
defendant is arrested or the information is filed. (United States v. Marion (1971)
404 U.S. 307, 320 [30 L.Ed.2d 468]; People v. Williams (2013) 58 Cal.4th 197,
233; Martinez, supra, 22 Cal.4th at pp. 754–755.) Here, the federal speedy trial
right did not attach until January 2010, when defendant was arrested, and
defendant does not claim any prejudicial delay after his arrest.

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B. Background

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In June 2011, before trial, defendant moved to dismiss the case for delay in
prosecution based on the seven-year delay between commission of the crimes and
his arrest. The prosecutor opposed the motion. The trial court conducted
evidentiary hearings before and after trial.

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At the pretrial hearing, defendant testified and admitted he fled California in
February 2002 in violation of parole. He went to Virginia, where he was arrested
in March 2002, released in early 2003, rearrested in the summer of 2003, pleaded
guilty to nine counts of fraudulently using bank notes, and was sentenced to six
years in prison in Virginia.
In California, the prosecutor filed the complaint in April 2004 and obtained an
arrest warrant in May 2004, naming defendant as Gerald H. Wise and giving a
Virginia jail as defendant's last known address. While incarcerated in Virginia,
defendant learned of the California case and in December 2004 wrote to the
Calaveras County District Attorney's office, asserting his Sixth Amendment right
to a speedy trial on the California charges (which had not yet attached) and stating
he would not contest extradition. The response was that his request failed to
comply with statutory requirements. Defendant claimed the Virginia prison denied
him access to California law.
After defendant's Virginia prison term ended in September 2009, he was kept
confined pending word from California but was then released on his own
recognizance. A California arrest warrant issued in October 2009, using both
surnames, Wise and Stolp. Defendant testified he was served with the arrest
warrant on December 28, 2009, when he showed up for a hearing in a Virginia
court, and he was arrested on the California warrant in January 2010. The
prosecutor filed an information on February 25, 2010, and an amended information
in March 2011.
Defendant made various motions to dismiss or set aside the information for delay.
In opposition, the prosecutor submitted her own declaration attesting 18 burglaries
had been reported in the same area during January, February, and March of 2002.
The District Attorney's office received a police report in June 2002 on some of the
burglaries, requested additional reports, and requested followup in February 2003.
In early 2004, the prosecutor requested additional followup by a prosecution
investigator before filing the complaint. In September 2009, defendant was due to
be released from the Virginia prison. Because defendant would not waive
extradition, the prosecutor sought a governor's warrant, which was granted on
November 2, 2009. The law and motion judge denied defendant's dismissal
motion. Defendant's attempt to obtain dismissal on the ground of the three-year
statute of limitations (§ 801) was also denied. For limitations purposes, the
prosecution was commenced when the 2004 arrest was issued, plus the limitations
period is tolled for up to three years if the defendant is out of the state. (§§ 803–
804.)
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In June 2011, defendant filed a motion to dismiss for delay in prosecution,
asserting the prosecution knew in May 2002 that (1) the police investigation
revealed defendant's fingerprints were at one crime scene; (2) defendant had not
kept in contact with his parole officer; and (3) defendant was in custody in
Virginia.

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At the pretrial hearing on the dismissal motion, defendant argued he was
prejudiced by the delay between the 2002 burglaries and his arrest seven years
later. And he argued there was no legitimate justification for the delay,
“particularly” from 2004 forward. He assertedly tried to gather evidence to show
he left California before February 5, 2002, the date a pest control technician
performed routine service at victim Smith's home without noticing any sign of a
break-in. Since the burglaries appeared to be the work of a single perpetrator,
defendant thought this would exonerate him. A defense investigator testified
defendant said he left California in early February 2002 but did not recall the exact
date, and the investigator was unable to gather supporting evidence because
business records such as airline records and airport parking records were
unavailable, and witnesses such as the pest control technician could not remember.

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The prosecutor argued defendant failed to show prejudice.

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The trial court issued a written interim ruling in July 2011, finding “the facts
regarding a showing of prejudice have not been fully developed. There are
uncontacted witnesses who could potentially corroborate defendant's account of
when he left the State of California.” The court denied the dismissal motion
without prejudice to revisit the matter after trial. Defendant noted his motion had
also asserted intentional delay by the People, relieving him from having to show
prejudice. The trial court declined to dismiss on that ground.

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After the jury returned its verdicts on November 16, 2011, the court held another
evidentiary hearing on the dismissal motion. Defense counsel filed a declaration
attesting he asked Reno airport security when the Subaru was parked at the airport
but was told the information was unavailable. He obtained defendant's
employment records, but they did not show the date defendant cashed his last
paycheck. He contacted the bank where defendant cashed the check but was told
they destroy records after seven years. The defense did not directly contact the
woman who wired defendant money, because she had been victimized by
defendant and was terrified of him. The defense contacted her through a third
party, but she did not remember when defendant arrived in Virginia and thought it
was in January 2002. The defense investigator said Rowe did not return phone
calls, so the investigator suggested contacting his mother, but defense counsel said
Rowe was in Australia (as the prosecutor apparently thought), and was not needed.
The prosecution adduced evidence they easily reached Rowe, who said he spent
less than a day in Australia due to a visa problem. The prosecutor also easily
reached Rowe's girlfriend, who said she did not remember making flight
arrangements for defendant and would have remembered had she done so, because
he was a “criminal type,” and she did not like criminal types and would not have
wanted to help him.
The trial court, citing case law that faded memory may suffice for prejudice, asked
the prosecutor if she wanted to present justification for the delay. She said, “Not at
this time” and asserted the court had to make a finding of prejudice before the
burden shifted to the People. The trial court retorted even the slightest showing of
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prejudice could shift the burden, and “I really think for the purpose of the record, I
would like to have the People's justification so we don't have to come back later
and do this.” The prosecutor explained she was prepared only on the issue of
prejudice, and “the People are not prepared to offer justification at this time.”
In arguing the question of prejudice, the prosecutor noted the defense did not
diligently pursue supporting evidence, as shown by their asserted inability to
contact defendant's friend, Rowe, whereas the prosecution had quick success in
contacting him.
On November 21, 2011, the trial court issued a written ruling denying defendant's
dismissal motion. The court noted defendant admitted at the hearing of the motion
that he was released on parole on January 17, 2002, stole a car, spent several days
in the Peterson home, and then absconded from parole, flying out of Reno to
Virginia. The ruling stated in part:
“The defendant argues that he has been prejudiced by the delay in bringing his
case to trial since evidence of the precise date in early February of 2002, circa
February 2nd, when he fled the State of California cannot be corroborated due to
the lack of records which have been purged and memories that have faded. The
court finds the defendant has not made a sufficient showing of prejudice. Even
assuming the defendant actually left ... California in early February of 2002, he
was in the Arnold area within the alleged times of all of the burglaries with the
exception of Count II, (on or about and between February 3, 2002, and February
11, 2002). The court notes that Count II was dismissed on the People's motion
following a mistrial.
“Assuming arguendo that the defendant has made a sufficient showing to shift the
burden to the People to show a legitimate justification for the delay, that burden
has been met. The delay in this case was primarily occasioned by the defendant's
flight from ... California and his commission of additional crimes in the State of
Virginia. As a result, he was in and out of custody and transferred between various
penal institutions in the State of Virginia.

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“In balancing the competing interests at this juncture, the court cannot overlook
the overwhelming evidence of defendant's guilt presented at trial and the jury's
guilty verdicts as to Counts I, III, and IV.”

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C. Analysis

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On appeal, defendant refers to the “seven-year delay” between 2002 and 2009
without differentiation between the different rights asserted.

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We disregard defendant's reliance on cases involving the federal speedy trial
claim, because it was not triggered until defendant was arrested in 2009, and
defendant does not claim or demonstrate prejudice or unjustifiable delay after that
point. Elimination of the federal speedy trial claim eliminates defendant's ability to
rely on a presumption of prejudice, and he must affirmatively demonstrate
prejudice. (Martinez, supra, 22 Cal.4th at p. 755.)
As to the due process claim for the period between the 2002 commission of the
crimes and the 2004 filing of the complaint, defendant fails to show prejudice. He
fails to show the two-year period left him unable to gather evidence upon learning
of the charges in 2004. He fails to show he attempted to gather evidence in 2004.
Moreover, the delay was justified. Although defendant's fingerprints were
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identified in April 2002 and there was probable cause to charge defendant on
several counts by June 2002, the record shows an ongoing investigation of 18
burglaries that were ultimately winnowed down to the four counts charged against
defendant. Defendant does not argue or show the investigation was deliberately
slow in order to prejudice him. The record shows nothing more than investigative
delay, which is strong justification for delay. (Cowan, supra, 50 Cal.4th at p. 431.)
As to the state speedy trial claim for the period between 2004 and 2009, we see no
basis for reversal. Defendant focuses on his asserted inability to prove his claim
that he left California before February 3, 2002. But all three burglaries of which
defendant was convicted could have occurred before February 3rd.
Defendant argues the prosecution used the telephone calls as evidence that the
burglaries were committed by the same person. Since the last of those calls were
made on February 3rd (8:24 p.m. from Martinez's phone, 3:24 p.m. from
Mugford's phone), defendant argues he could have cast reasonable doubt as to his
identity as the perpetrator had he been able to show he left California by that date.
However, defendant did not initially claim that date. At the pretrial hearing, the
defense investigator testified he spoke with defendant, who said he left California
in early February 2002 but did not know what date. Even though the defense knew
before trial that the last phone calls were made February 3rd, defendant testified at
the pretrial hearing that “we were trying to establish that I was gone prior to
February 5th”—the date of the pest control service.
Proving he left before February 5th would not help defendant, because there is no
evidence the pest control technician should have noticed signs of forced entry.
Forced entry was by broken glass on an upper deck with closed vertical blinds.
The technician merely sprayed the perimeter from as much as 30 feet away.
Proving he left on February 3rd would not help defendant, because the last phone
call was at 8:24 p.m. on February 3rd, and therefore defendant could have made
that call and then left for the airport. He did not testify what time of day his flight
left. Defendant's presence in the crime area on February 2nd was established by
the market surveillance video. Moreover, the phone records would not exonerate
defendant in any case, because there was a rash of burglaries of the unoccupied
vacation homes in the area, not all of which were charged against defendant. He
left behind the list of “900” numbers, and there was no evidence he secured the
home when he left.

22

Additionally, the defense did not even try to contact the woman who wired money
to defendant until after the trial began. The defense then communicated with her
through a third person, because defendant victimized her, and she is hostile toward
and terrified by defendant—circumstances not the fault of the prosecution.

23

Thus, defendant failed to show prejudice.

24

Even assuming defendant showed prejudice sufficient to shift the burden to the
prosecution to justify the delay, defendant fails to show grounds for reversal.
Although the prosecution did not present evidence as to why it declined to
extradite defendant sooner, the trial court properly found there was justifiable
delay because defendant fled California. (People v. Perez (1991) 229 Cal.App.3d
302, 308 [though not an absolute bar to a speedy trial claim, flight to avoid
prosecution is a factor to be considered].) Defendant argues the delay was
unjustified, because California authorities knew his whereabouts in the Virginia
prison, and he even urged them to bring him to trial. The Attorney General does

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not argue inability to extradite defendant earlier, and we therefore do not rely on
the Virginia incarceration itself as justification for the five-year delay in
California. By the same token, however, though the California authorities knew
where defendant was in 2004, defendant in 2004 knew about the California
burglary charges against him and, though incarcerated, could have undertaken to
pin down evidence of when he left California. He did not testify to any such
efforts. Contrary to defendant's contention, the fact the prosecution declined to
extradite him in 2004 does not, in itself, suffice to show purposeful delay to
weaken the defense. Thus, any balancing of prejudice against delay would not
weigh in defendant's favor. Moreover, there was overwhelming evidence of
defendant's guilt on the three counts of which he stands convicted. His DNA was
found in the Peterson and Mugford homes, and he admitted staying at the Peterson
home for several days. The receipt found in the home was from a February 2nd
transaction captured by surveillance video showing a person who appeared to be
defendant. Moreover, a number of items stolen from the Smith home were found
in the Peterson home.
Defendant cites Dickey v. Florida (1970) 398 U.S. 30 [26 L.Ed.2d 26], which
found a speedy trial violation under the federal Constitution where a person
incarcerated in federal prison sought a speedy trial on state charges in Florida, and
the state prosecutor let eight years lapse before bringing him to trial. Dickey noted
that, upon demand of the accused, the state had a constitutional duty to make a
diligent and good faith effort to secure his presence from the custodial jurisdiction
and afford him a trial. (Id. at pp. 36–37.) However, we have explained the federal
speedy trial did not attach until defendant's arrest in 2009, at which point he was
no longer incarcerated in Virginia, and he makes no claim of prejudice or
unjustified delay after his arrest.
Defendant also cites People v. Mirenda (2009) 174 Cal.App.4th 1313. There,
however, the delay was 25 years, and the defendant showed prejudice, e.g., death
of the sole independent witness. (Id. at pp. 1331–1332.) The appellate court upheld
the trial court's determinations that delay in prosecution was justified until 1982,
when the California authorities found the defendant in Pennsylvania, but the delay
in prosecution between 1982 and 2007 was not justified under the circumstances
of the case. (Ibid.) The circumstances included an admission by the prosecutor that
nothing was done, and the prosecution not only declined to extradite the defendant
but also changed the arrest warrant to “California only” thereby preventing
execution of the warrant outside of the state. (Id. at p. 1333.)
We conclude defendant fails to show grounds for reversal.

22

Stolp, 2015 WL 67037, at *3–l.)

23

b. Legal Standard

24

“[A] speedy trial is guaranteed the accused by the Sixth Amendment to the Constitution.”

25

Barker v. Wingo, 407 U.S. 514, 515 (1972). The “right to a speedy trial is ‘fundamental’ and is

26

imposed by the Due Process Clause of the Fourteenth Amendment on the States.” Id. (citing

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Kloper v. North Carolina, 386 U.S. 213 (1967). In Barker, the Supreme Court identified four

28

factors in determining whether a due process violation has occurred: 1) the length of delay; 2) the
12

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reason for the delay; 3) the defendant's assertion of his right; and 4) prejudice to the defendant.

2

Id. at 530. However, the Supreme Court stated in Barker that “[w]e hardly need add that if delay

3

is attributable to the defendant, then his waiver may be given effect under standard waiver

4

doctrine, the demand rule aside.” Id. at 529. Thus, the Ninth Circuit held that “when the

5

defendant seeks to avoid detection by American authorities and any post-indictment delay can be

6

attributed to him, he waives the right to a speedy trial.” United States v. Sandoval, 990 F.2d 481,

7

483 (9th Cir.1993) (internal quotations omitted).

8

As for California law, Cal. Penal Code § 1381 et seq. provides the statutory framework to

9

ensure speedy trials for defendants. However, it is well-settled that federal habeas relief is not

10

available to state prisoners challenging state law. Estelle v. McGuire, 502 U.S. 62, 67 (1991)

11

(“We have stated many times that federal habeas corpus relief does not lie for errors of state law);

12

Langford v. Day, 110 F.3d 1380, 1389 (9th Cir. 1997) (“alleged errors in the application of state

13

law are not cognizable in federal habeas corpus” proceedings).

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c. Analysis

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Petitioner’s due process claim is meritless, because as noted by the Third DCA, the right

16

was not triggered until Petitioner’s arrest in 2009. “[I]t is either a formal indictment or

17

information or else the actual restraints imposed by arrest and holding to answer a criminal charge

18

that engage the particular protections of the speedy trial provision of the Sixth Amendment.”

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United States v. Marion, 404 U.S. 307, 320 (1971). The Supreme Court has declined to extend

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the reach of the speedy trial provision to the period prior to arrest. Id. at 321. As to the period of

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time after Petitioner’s arrest in 2009, he does not claim or demonstrate any prejudice or

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unjustifiable delay. Stolp, 2015 WL 67037, at *6; Doc. 1 at 5.

23

With regard to Petitioner’s claim that his state speedy trial rights were violated, as

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previously noted, federal habeas relief is unavailable for violations of state law. 28 U.S.C. §

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2254(a); Estelle, 502 U.S. at 67. Therefore, Petitioner’s claim should be rejected.

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2. Ineffective Assistance of Appellate Counsel

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Petitioner claims he received ineffective assistance from his appellate counsel. He does

28

not state any basis for this claim in his federal petition. In his state court petitions, Petitioner
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alleged his appellate counsel was ineffective in failing to raise a claim regarding violations of the

2

state and federal statute of limitations. In rejecting this claim, the California Supreme Court

3

summarily denied it with citation to In re Robbins, 18 Cal.4th 770, 780 (1998). Respondent

4

argues that the claim is procedurally defaulted and the Court agrees.

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a. Procedural Default

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State courts may decline to review a claim based on a procedural default. Wainwright v.

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Sykes, 433 U.S. 72, 86–87 (1977). In turn, federal courts “will not review a question of federal

8

law decided by a state court if the decision of that court rests on a state law ground that is

9

independent of the federal question and adequate to support the judgment.” Coleman v.

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Thompson, 501 U.S. 722, 729 (1991); LaCrosse v. Kernan, 244 F.3d 702, 704 (9th Cir. 2001);

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see Ylst v. Nunnemaker, 501 U.S. 797, 801 (1991); Park v. California, 202 F.3d 1146, 1150

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(2000) (“A district court properly refuses to reach the merits of a habeas petition if the petitioner

13

has defaulted on the particular state’s procedural requirements . . . .”). This concept has been

14

commonly referred to as the procedural default doctrine. This doctrine of procedural default is

15

based on concerns of comity and federalism. Coleman, 501 U.S. at 730-32. If the court finds an

16

independent and adequate state procedural ground, “federal habeas review is barred unless the

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prisoner can demonstrate cause for the procedural default and actual prejudice, or demonstrate

18

that the failure to consider the claims will result in a fundamental miscarriage of justice.” Noltie

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v. Peterson, 9 F.3d 802, 804-805 (9th Cir. 1993); Coleman, 501 U.S. at 750; Park, 202 F.3d at

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1150.

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The mere occurrence, however, of a procedural default will not necessarily bar a federal

22

court from reviewing claims in a petition for writ of habeas corpus. In order for the procedural

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default doctrine to apply and thereby bar federal review, the state court determination of default

24

must be grounded in state law that is both adequate to support the judgment and independent of

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federal law. Ylst, 501 U.S. at 801; Coleman, 501 U.S. at 729-30. Put another way, the

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procedural default doctrine will apply only if the application of the state procedural rule provides

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“an adequate and independent state law basis” on which the state court can deny relief. Park, 202

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F.3d at 1151 (quoting Coleman, 501 U.S. at 729-30).
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“For a state procedural rule to be ‘independent,’ the state law basis for the decision must

2

not be interwoven with federal law.” LaCrosse, 244 F.3d at 704 (citing Michigan v. Long, 463

3

U.S. 1032, 1040-41 (1983)); Morales v. Calderon, 85 F.3d 1387, 1393 (9th Cir. 1996) (“Federal

4

habeas review is not barred if the state decision ‘fairly appears to rest primarily on federal law, or

5

to be interwoven with federal law.’” (quoting Coleman, 501 U.S. at 735). “A state law is so

6

interwoven if ‘the state has made application of the procedural bar depend on an antecedent ruling

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on federal law [such as] the determination of whether federal constitutional error has been

8

committed.’” Park, 202 F.3d at 1152 (quoting Ake v. Oklahoma, 470 U.S. 68, 75 (1985)).

9

To be deemed adequate, the state law ground for decision must be well-established and

10

consistently applied. Poland v. Stewart, 169 F.3d 573, 577 (9th Cir. 1999) (“A state procedural

11

rule constitutes an adequate bar to federal court review if it was ‘firmly established and regularly

12

followed’ at the time it was applied by the state court.”) (quoting Ford v. Georgia, 498 U.S. 411,

13

424 (1991)). Although a state court’s exercise of judicial discretion will not necessarily render a

14

rule inadequate, the discretion must entail “‘the exercise of judgment according to standards that,

15

at least over time, can become known and understood within reasonable operating limits.’” Id. at

16

577 (quoting Morales, 85 F.3d at 1392).

17

In this case, the California Supreme Court’s citation to In re Robbins reflects that the

18

habeas petition was denied because it was deemed untimely. Walker v. Martin, 562 U.S. 307,

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313 (2011) (“A summary denial citing . . . Robbins means that the petition is rejected as

20

untimely.”). In Walker, the Supreme Court concluded that such a dismissal on timeliness grounds

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under California law represented an adequate and consistently applied independent state law bar

22

such that the petitioner was precluded from bringing his federal claims in federal court. Id. at

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318-19; see Coleman v. Thompson, 501 U.S. 722, 729 (1991). Thus, the claim is procedurally

24

defaulted unless Petitioner can show cause and prejudice, or that a fundamental miscarriage of

25

justice occurred. He fails to do so, and the claim should be dismissed as procedurally barred.

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b. Legal Standard and Analysis

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Even if the Court could consider the claim, it is meritless. Effective assistance of counsel

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is guaranteed by the Due Process Clause of the Fourteenth Amendment. Evitts v. Lucey, 469
15

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U.S. 387, 391-405 (1985). Claims of ineffective assistance of counsel are reviewed according to

2

Strickland's two-pronged test. Strickland v. Washington, 466 U.S. 668, 687-88 (1984); Miller v.

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Keeney, 882 F.2d 1428, 1433 (9th Cir. 1989); United States v. Birtle, 792 F.2d 846, 847 (9th

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Cir.1986); see also Penson v. Ohio, 488 U.S. 75(1988) (holding that where a defendant has been

5

actually or constructively denied the assistance of counsel altogether, the Strickland standard does

6

not apply and prejudice is presumed; the implication is that Strickland does apply where counsel

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is present but ineffective).

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To prevail, Petitioner must show two things. First, he must establish that counsel’s

9

deficient performance fell below an objective standard of reasonableness under prevailing

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professional norms. Strickland, 466 U.S. at 687-88. Second, Petitioner must establish that he

11

suffered prejudice in that there was a reasonable probability that, but for counsel’s unprofessional

12

errors, he would have prevailed on appeal. Id. at 694. A “reasonable probability” is a probability

13

sufficient to undermine confidence in the outcome of the trial. Id. The relevant inquiry is not

14

what counsel could have done; rather, it is whether the choices made by counsel were reasonable.

15

Babbitt v. Calderon, 151 F.3d 1170, 1173 (9th Cir. 1998).

16

With the passage of the AEDPA, habeas relief may only be granted if the state-court

17

decision unreasonably applied this general Strickland standard for ineffective assistance.

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Knowles v. Mirzayance, 556 U.S. 111, 122 (2009). Accordingly, the question “is not whether a

19

federal court believes the state court’s determination under the Strickland standard “was incorrect

20

but whether that determination was unreasonable–a substantially higher threshold.” Schriro v.

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Landrigan, 550 U.S. 465, 473 (2007); Knowles, 556 U.S. at 123. In effect, the AEDPA standard

22

is “doubly deferential” because it requires that it be shown not only that the state court

23

determination was erroneous, but also that it was objectively unreasonable. Yarborough v.

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Gentry, 540 U.S. 1, 5 (2003). Moreover, because the Strickland standard is a general standard, a

25

state court has even more latitude to reasonably determine that a defendant has not satisfied that

26

standard. See Yarborough v. Alvarado, 541 U.S. 652, 664 (2004) (“[E]valuating whether a rule

27

application was unreasonable requires considering the rule’s specificity. The more general the

28

rule, the more leeway courts have in reaching outcomes in case-by-case determinations.”)
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1

In challenges to the effective assistance of appellate counsel, the same standards apply as

2

with claims of ineffective assistance of trial counsel. Smith v. Robbins, 528 U.S. 259, 285

3

(2000); Smith v. Murray, 477 U.S. 527 (1986). In Robbins, the United States Supreme Court

4

indicated that an appellate attorney filing a merits brief need not and should not raise every non-

5

frivolous claim. Robbins, 528 U.S. at 288. Rather, an attorney may select from among them in

6

order to maximize the likelihood of success on appeal. Id. As a result, there is no requirement

7

that an appellate attorney raise issues that are clearly untenable. Gustave v. United States, 627

8

F.2d 901, 906 (9th Cir. 1980); see also Gillhan v. Rodriguez, 551 F.2d 1182 (10th Cir. 1977).

9

In this case, the offenses were committed in January and February of 2002. A felony

10

complaint was filed in Calaveras County Superior Court in April of 2004. An arrest warrant

11

based on the complaint was issued in May 2004. This was well within the three-year limitations

12

period set forth in Cal. Penal Code §§ 801, 804. Appellate counsel cannot be faulted for failing to

13

raise a meritless argument. Gustave, 627 F.2d at 906. The claim should be rejected.

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3. Statute of Limitations

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Petitioner next contends that both the federal and state statutes of limitations were

16

violated. He raised this claim in habeas petitions before the state courts. The California Supreme

17

Court denied the claim as untimely with citation to In re Robbins, 18 Cal.4th at 780. Respondent

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contends that, like the previous claim, this claim is procedurally defaulted. The Court agrees for

19

the same reasons stated in the previous ground for relief. Moreover, the claim is without merit.

20

First, federal habeas relief is unavailable for Petitioner’s claim that California’s statute of

21

limitations was violated. An error of state law is not cognizable in a federal habeas action.

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Estelle, 502 U.S. at 67-68. Second, as pointed out by Respondent, Petitioner was not charged

23

with any federal offenses. Therefore, the federal statute of limitations is inapplicable. Thus, the

24

claim should be denied.

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4. Interstate Agreement on Detainers

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In his last claim, Petitioner contends that there was a “violation of the remedial provisions

27

of the Interstate Agreement on Detainers Act” (IAD). This claim was also raised in state habeas

28

petitions, and denied as untimely by the California Supreme Court. Respondent argues that the
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claim is procedurally defaulted, and for the same reasons previously discussed, the Court agrees.

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In any case, the claim is without merit.

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a. Legal Standard

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The Interstate Agreement on Detainers Act (“IAD”) governs the disposition of charges

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between different jurisdictions. The Supreme Court provides this summary of the IAD:
In 1970 Congress enacted the Interstate Agreement on Detainers Act, 18 U.S.C.
App., pp. 1395-1398 (1976 ed.), joining the United States and the District of
Columbia as parties to the Interstate Agreement on Detainers (Agreement). The
Agreement, which has also been enacted by 46 States, is designed "to encourage
the expeditious and orderly disposition of . . . charges [outstanding against a
prisoner] and determination of the proper status of any and all detainers based on
untried indictments, informations, or complaints." Art. I. It prescribes procedures
by which a member State may obtain for trial a prisoner incarcerated in another
member jurisdiction and by which the prisoner may demand the speedy disposition
of certain charges pending against him in another jurisdiction. In either case,
however, the provisions of the Agreement are triggered only when a “detainer” is
filed with the custodial (sending) State by another State (receiving) having untried
charges pending against the prisoner; to obtain temporary custody, the receiving
State must also file an appropriate “request” with the sending State.
United States v. Mauro, 436 U.S. 340, 343-44 (1978).
“A detainer is” defined as “a notification filed with the institution in which a prisoner is

16

serving a sentence, advising that he is wanted to face pending criminal charges in another

17

jurisdiction.” Id. at 359. According to the IAD, the warden, commissioner of corrections or other

18

official having custody of the prisoner must promptly inform him of any detainer lodged against

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him and also inform him of his right to make a request for final disposition of the indictment,

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information, or complaint on which the detainer is based. I.A.D., Art. III(c). If a prisoner wishes

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to request final disposition, he must provide a “written notice and request for final disposition . . .

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to the warden, commissioner of corrections, or other official having custody of him, who shall

23

promptly forward it together with the certificate to the appropriate prosecuting official and court

24

by registered or certified mail, return receipt requested.” I.A.D., Art. III(b). The official must

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also include “copies of the prisoner’s written notice, request, and the certificate.” I.A.D., Art.

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III(d). Once notice has been delivered to the prosecuting officer and the appropriate court of the

27

prosecuting officer’s jurisdiction, the prisoner must be brought to trial within one hundred and

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eighty days. I.A.D., Art. III(a). If the prisoner is not brought to trial within that time period, “the
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court of the jurisdiction where the indictment, information, or complaint is pending shall dismiss

2

the same with prejudice, and any detainer based thereon shall cease to be of any force or effect.”

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I.A.D., Art. V(c).

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b. Analysis

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In this case, Petitioner fails to demonstrate a violation of the IAD. Petitioner committed

6

the crimes in California in 2002. He then fled to Virginia and was arrested on other charges that

7

same year. (LD 8 at 303.) He was sentenced to a prison term, released in 2003, and remained in

8

Virginia. (LD 8 at 304-05.) He was rearrested in 2003 and began serving another prison sentence

9

in Virginia. (LD 8 at 305-07.) On April 28, 2004, the Calaveras County District Attorney filed a

10

complaint, and an arrest warrant was issued on May 13, 2004. (LD 1 at 145-47.) Petitioner

11

stated that he wrote to the Calaveras County District Attorney in December of 2004 “assert[ing]

12

his right to a speedy trial under the 6th Amendment to the Constitution.” (LD 1 at 42, LD 8 at

13

309.) The district attorney responded to Petitioner’s letter stating that his request “attempting to

14

invoke the speedy trial rights does not comply with statutory requirements and will not be

15

honored.” (LD 1 at 41.) Petitioner did nothing further and was arrested in 2009 on the California

16

warrant. (LD 8 at 313-14, 316.)
Based on Petitioner’s representations, it is clear he did not comply with the statutory

17
18

requirements. There is no showing that he ever provided proper notice to the warden or official

19

in custody as required by the IAD. He also fails to show that the Calaveras County Superior

20

Court was ever notified. He further fails to provide any documentary proof of his notice

21

demonstrating that he complied with the requirements of the IAD. Thus, he fails to show a

22

violation of the IAD and the claim should be denied.

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IV.

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RECOMMENDATION
Accordingly, the Court RECOMMENDS that the Petition for Writ of Habeas Corpus be

DENIED with prejudice on the merits.
This Findings and Recommendation is submitted to the United States District Court Judge

27

assigned to the case, pursuant to the provisions of 28 U.S.C. § 636 (b)(1)(B) and Rule 304 of the

28

Local Rules of Practice for the United States District Court, Eastern District of California. Within
19

1

twenty-one days after being served with a copy of this Findings and Recommendation, any party

2

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

3

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

4

to the Objections shall be served and filed within ten court days (plus three days if served by

5

mail) after service of the Objections. The Court will then review the Magistrate Judge’s ruling

6

pursuant to 28 U.S.C. § 636 (b)(1)(C). The parties are advised that failure to file objections

7

within the specified time may waive the right to appeal the Order of the District Court. Martinez

8

v. Ylst, 951 F.2d 1153 (9th Cir. 1991).

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IT IS SO ORDERED.
Dated:

March 28, 2018

/s/ Jennifer L. Thurston

UNITED STATES MAGISTRATE JUDGE

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