Sherman v. Chief Probation Officer et al

Filing 30

ORDER signed by Senior Judge Terry J. Hatter, Jr on 8/5/11: It is Ordered that the petition be, and hereby is, Denied. (Kaminski, H)

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United States District Court
Eastern District of California

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JOSEPH SHERMAN,

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CV 07-02260 TJH

Petitioner,
v.
CHIEF PROBATION OFFICER, et al.,

Order

Respondents.

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The Court has considered the petition for habeas corpus, together with the
moving and opposing papers.

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On October 25, 2005, in the Sacramento County Superior Court, the Petitioner

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was found guilty by a jury of the following misdemeanors: (1) Engaging in disruptive

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conduct within the state capitol (Penal Code § 171F); (2) Twice willfully and

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knowingly resisting, delaying, or obstructing officers engaging in their duties (Penal

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Code § 148(a)); and (3) Contempt of court (Penal Code § 166(a)). The Petitioner was

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sentenced to 180 days in jail and three years probation. The Petitioner appealed the

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judgment to the appellate division of the Sacramento County Superior Court, but the

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appellate division found no arguable issues and affirmed judgment on November 16,

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2006. On June 21, 2007, the California Court of Appeal denied Petitioner’s writ of

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habeas corpus. On September 12, 2007, the California Supreme Court denied

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Petitioner’s writ of habeas corpus. On October 23, 2007, Petitioner, in pro se, filed

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this federal writ of habeas corpus.

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To obtain habeas relief under 28 U.S.C. § 2254(a), the Petitioner must be in

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custody pursuant to the judgment of a state court. A Petitioner is deemed “in

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custody” if he files his writ of habeas corpus during his period of probation. Chaker

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v. Crogan, 428 F.3d 1215, 1219 (9th Cir. 2005). The Petitioner filed his federal

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habeas petition on October 23, 2007, almost a year before his probation terminated

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on October 21, 2008. Further, the fact that the Petitioner is no longer on probation

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does not make his petition moot. Chaker, 428 F.3d at 1219. Accordingly, the Court

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will consider the merits of the petition.

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A writ of habeas corpus may be granted only if the Petitioner’s state court

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judgment was in violation of “clearly established federal law, as decided by the

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Supreme Court,” or was based on an “unreasonable determination of the facts” based

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on the evidence before the state court. 28 U.S.C. § 2254(d)(1-2). Factual decisions

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made by the state court are presumed to be correct, and the Petitioner has the burden

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of proof to show the state court made a factual mistake by “clear and convincing

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evidence.” 28 U.S.C. § 2254(e)(1).

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Insufficiency of Evidence

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The Petitioner’s first claim is that “there was insufficient evidence to show

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probable cause in his convictions.” This claim challenges the sufficiency of the

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evidence supporting the Petitioner’s convictions.

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On September 12, 2007, the California Supreme Court denied Petitioner’s writ

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of habeas corpus, citing to In re: Lindley, 29 Cal. 2d 709, 117 P.2d 918 (1947).

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Pursuant to Lindley, “[a] petitioner who fails to exhaust sufficiency of evidence

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claims in his direct appeal and raises them instead in a subsequent state habeas

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petition has procedurally defaulted those claims as a matter of California law.”

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Carter v. Giurbino, 385 F.3d 1194, 1197 (9th Cir. 2004). While the Petitioner raised

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this issue on his direct appeal to the appellate division of the Sacramento County

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Superior, he did not attempt to take a direct appeal to the California Court of Appeal

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or the California Supreme Court. Rather, the Petitioner filed only state habeas

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petitions with those two courts. Accordingly, the Petitioner failed to preserve this

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claim by not continuing his direct appeal beyond the appellate division of the

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Superior Court. The Petitioner could have filed an application asking the appellate

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division of the Superior Court to certify his direct appeal for transfer to the California

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Court of Appeal, pursuant to California Rules of Court 8.1005(b)(1). Accordingly,

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this claim was procedurally defaulted by the California Supreme Court.

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The United States Supreme Court has ruled that a habeas claim is barred from

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federal habeas review if a state court has deemed the claim to have been procedurally

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defaulted under an independent state rule:

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In all cases in which a prisoner has defaulted his federal claims in state court

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pursuant to an independent and adequate state procedural rule, federal habeas

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review of the claims is barred unless the prisoner can demonstrate cause for the

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default and actual prejudice as a result of the alleged violation of federal law,

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or demonstrate that failure to consider the claims will result in a miscarriage

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of justice.

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Coleman v. Thompson, 501 U.S. 722, 750, 111 S. Ct. 2546, 2565, 115 L. Ed. 2d 640,

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670 (1991). The Ninth Circuit has held that Lindley is an “independent and adequate

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state procedural bar” which prevents federal habeas review of claims procedurally

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defaulted by the California Supreme Court. Carter v. Giurbino, 385 F.3d 1194, 1198

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(9th Cir. 2004). Accordingly, the Petitioner’s insufficiency of evidence claim is

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barred unless he can show cause and prejudice, or demonstrate that there will be a

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miscarriage of justice if his claim is not reviewed.

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“Cause” under the cause and prejudice test “must be something external to the

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[P]etitioner, something that cannot fairly be attributed to him ... .” Coleman 501 U.S.

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at 753, 111 S. Ct. at 2566, 115 L. Ed. 2d at 671. In this case, the Petitioner was

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representing himself, so his failure to appeal to the California Court of Appeal was

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entirely up to him. Therefore, there was no external cause.

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The miscarriage of justice exception deals with actual innocence instead of

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legal innocence, and has been rejected in virtually every case. Casey v. Moore, 386

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F.3d 896, 921, n.27 (9th Cir. 2004). To fall within this exception, the Petitioner’s

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innocence must rest on supplemental and reliable evidence obtained post-trial.

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Casey, 386 F.3d at 921.

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evidence to show his actual innocence, those tapes were presented to the jury.

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Though the jury heard only one side of the audiotape, the Petitioner had access to the

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entire tape at trial. Thus, the evidence was not obtained post-trial. Therefore, this

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claim does not meet the miscarriage of justice standard.

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While the Petitioner relies on videotape and audiotape

Consequently, the Petitioner’s claim for insufficiency of evidence is barred

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from federal review.

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Evidence of Previous, Uncharged Offenses

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Petitioner’s second claim is that improper evidence of previous, uncharged

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offenses was admitted at trial. The Petitioner objected to testimony from Yolo

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County Sheriff’s Patrol Deputy Kenneth Fisch about a prior altercation with

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Petitioner at the Sheriff’s office.

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University of California at Davis Police Officer Jennifer Garcia that detailed

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Petitioner’s disruptive conduct at the student union. As a result of admitting this

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testimony to show a propensity to disobey police, Petitioner argues the jury was

Petitioner also objected to testimony from

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tainted and his right to due process was violated.

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Federal courts “have no authority to review alleged violations of a state’s

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evidentiary rules in a federal habeas proceeding.” Windham v. Merkle, 163 F.3d

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1092, 1103 (9th Cir. 1998). The federal court can only determine whether the

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admitted evidence “rendered the trial so fundamentally unfair as to violate due

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process.” Windham, 163 F.3d at 1103. Here, the admission of Petitioner’s prior acts

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did not make the trial so unfair as to violate due process. The trial court notes that in

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both instances, Petitioner was confronted by law enforcement officers, which is

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similar to the charges at issue.

The prosecution used the evidence to show

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Petitioner’s state of mind and intent, and these prior acts go to proving the mental

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component of the crime. Therefore, the admitted evidence did not did not make the

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trial fundamentally unfair.

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Excluded Jury Instructions

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Petitioner’s third claim is that the trial court unjustly excluded jury instructions.

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At trial, the Petitioner requested two jury instructions. The first instruction was that

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it was not an interference of business when a person engages his First Amendment

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rights on public property. The trial court refused to give this instruction because the

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offense did not have to do with the nature of Petitioner’s speech, but with Petitioner’s

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conduct. The second instruction was that if an officer is not acting in his/her lawful

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duties, then one cannot be in violation of Penal Code § 148(a) when passively

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resisting arrest. The trial court ruled Petitioner’s instruction was encompassed in

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CALJIC No. 16.110.

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The Due Process Clause does not allow federal courts to conduct a detailed

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review of state evidentiary rules. Marshall v. Lonberger, 459 U.S. 422, 438 n.6, 103

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S. Ct. 843, 853 n.6, 74 L. Ed. 2d 646, 662 n.6 (1983). In a jury instruction claim, the

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federal court can only examine whether the instruction so affected the trial that the

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resulting conviction violates due process by violating some Constitutional right.

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Estelle v. McGuire, 502 U.S. 62, 72, 112 S. Ct. 475, 482, 116 L. Ed. 2d 385, 399

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(1991). There was no violation of a Constitutional right when the trial court denied

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the Petitioner’s jury instructions.

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Petitioner’s First Amendment rights were not violated because the offense had to do

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with the Petitioner’s conduct, not the nature of his speech. The second instruction

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does not deal with a Constitutional right. Therefore, Petitioner’s due process claim

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for unjustly excluding jury instructions fails.

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Unjust Delay in His Appellate Process

By denying the first jury instruction, the

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Petitioner’s fourth claim is that there was an unjust delay in his appellate

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process. There is no Supreme Court authority that guarantees a right to a “speedy

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trial” at the appellate level. As there is no established Supreme Court precedent, this

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claim fails under 28 U.S.C. § 2254(d)(1). Petitioner filed his notice of appeal on

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November 9, 2005. A decision was rendered by the Sacramento Superior Court

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Appellate Division on November 17, 2006. During the proceedings, Petitioner’s

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sentence was stayed until the Appellate Division made a decision. Therefore, the trial

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schedule was not unreasonable under 28 U.S.C. § 2254(d)(2).

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Prejudicial Treatment of the Appellant While in Trial

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Petitioner’s fifth claim is that there was prejudicial treatment of the Appellant
while in trial.

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The Fourteenth Amendment guarantees the right to a fair trial. Estelle v.

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Williams, 425 U.S. 501, 503, 96 S. Ct. 1691, 1692, 48 L. Ed. 2d 126, 130 (1976). Our

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system maintains parties have a presumption of evidence and the court “must be alert

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to factors that may undermine the fairness of the fact-finding process.” Estelle, 425

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U.S. at 503, 96 S. Ct at 1692, 48 L. Ed. 2d at 130. Having extra security personnel

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in the courtroom does not violate a defendant’s right to due process. Holbrooke v.

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Flynn, 475 U.S. 560, 569, 106 S. Ct. 1340, 1346, 89 L. Ed. 2d 525, 531 (1986).

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Therefore, Petitioner’s claim that having a deputy in the courtroom made the jury

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biased against him is without merit.

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Petitioner also claims the prosecution presented perjured testimony, and the

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trial court sustained objections by the prosecution. These are state evidentiary

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matters, which as noted above, are not eligible for federal habeas review. Windham,

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163 F.3d at 1103 (9th Cir. 1998). Therefore, Petitioner’s claims around perjured

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testimony and objections are not available for federal habeas review.

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Right to Speedy Trial

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Petitioner’s final claim is that his right to a speedy trial was violated. The Sixth

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Amendment guarantees that those accused of crimes have a right to a speedy trial.

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U.S. Const. amend. VI. The Supreme Court has stated four enquiries to determine if

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a party’s Sixth Amendment rights have been violated: (1) Whether delay before trial

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was uncommonly long; (2) Whether the government or the defendant is more to

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blame for the delay; (3) Whether, in due course, the defendant asserted his right to a

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speedy trial; and (4) Whether he suffered prejudice as the delay’s result. Doggett v.

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United States, 505 U.S. 647, 651, 112 S. Ct. 2686, 2690, 120 L. Ed. 2d 520, 528

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(1992).

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In this case, Petitioner pled not guilty to the charges on April 26, 2005. Jury

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selection in the case began on October 15, 2005, approximately six months

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afterwards. As a general rule, courts begin to look at the reasonableness of the delay

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as it approaches one year. Doggett, 505 U.S. at 651, n.1, 112 S. Ct. at 2691, 120 L.

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Ed. 2d at 528. Petitioner waited approximately six months for trial, which is less than

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the typical one year requirement. Therefore, Petitioner’s delay was not unreasonably

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long.

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As to the second enquiry, Petitioner is more to blame for the delay of the trial.

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On April 26, 2005, Petitioner plead not guilty to the charges. Pursuant to his speedy

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trial rights, his trial had to begin by June 10, 2005. On June 8, 2005, Petitioner, who

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was self-represented, agreed to have counsel assigned. Petitioner’s new counsel then

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requested a continuance to June 28, 2005, in order to prepare for trial. The trial did

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not commence on June 28, 2005, because Petitioner went into custody on June 21,

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2005 and was scheduled for release on March 6, 2006. Because Petitioner was in

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custody, his trial could not commence. Petitioner’s counsel requested time waivers

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on June 28, 2005, and June 30, 2005. Petitioner commenced his new speedy trial

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rights on July 20, 2005, and expired on October 18, 2005. The main cause of delay

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was Petitioner’s switch from self-representation to being assigned counsel and the

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Petitioner going into custody.

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Based upon the discussion above, all of the Petitioner’s claims fail on the
merits.

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It is Ordered that the petition be, and hereby is, Denied.

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Date: August 5, 2011
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Terry J. Hatter, Jr.
Senior United States District Judge

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