Lacey v. Kramer et al

Filing 28

ORDER DISMISSING CASE signed by District Judge Virginia A. Phillips on 04/12/10. The Petition for Writ of Habeas Corpus is DENIED. CASE CLOSED. (Williams, D)

1 2 3 4 5 6 7 8 9 10 B I L L Y JEROME LACEY, 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Magistrate Judge Hollows granted Petitioner two e x t e n s i o n s of time to file a traverse, but no traverse w a s ever filed.
1

IN THE UNITED STATES DISTRICT COURT F O R THE EASTERN DISTRICT OF CALIFORNIA ) ) Petitioner, ) ) v. ) ) M . C . KRAMER, Warden, ) ) Respondent. ) ________________________ )

C a s e No. 2:07-cv-02640-VAP (HC) [ P e t i t i o n filed on December 7 , 2007] O R D E R DENYING PETITION FOR W R I T OF HABEAS CORPUS FILED B Y A STATE PRISONER

I . BACKGROUND P e t i t i o n e r Billy Jerome Lacey is a state prisoner. P r o c e e d i n g in pro se, he filed a habeas corpus petition p u r s u a n t to 28 U.S.C. § 2254 on December 7, 2007, and an a m e n d e d petition on January 22, 2008. a n Answer on April 23, 2008. 1 Respondent filed

On January 5, 2009, the

a c t i o n was transferred to this Court pursuant to an Order o f Designation of Judge to Serve in Another District w i t h i n the Ninth Circuit.

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 28 A.

F o r the reasons stated below, the Court DENIES the Petition.

S t a t e m e n t of Facts 1. T h e Events of October 13, 2004

S a c r a m e n t o Police Department officers arrested P e t i t i o n e r on October 13, 2004 at an "undercover buyb u s t " in Oak Park. (RT at 80:23-25, 81:7-9; 148:11-17.)

At approximately 10:20 p.m. on that evening, Detective J o h n Jennings, in an unmarked vehicle, approached P e t i t i o n e r ' s co-defendant Kerry Duncan, who was walking o n foot, and asked him "What's up?" (RT at 83:28.) (RT at 83:28-

Duncan responded "Are you looking for it?" 84:1.)

Based on his experience, Jennings interpreted (RT at 84:23-

t h i s to be a reference to mean narcotics. 85:1.) vehicle.

Jennings responded "Yes," and pulled over his (RT at 85:18-23.)

D u n c a n then asked Jennings "what [he] was looking f o r , " and Jennings responded "a $20 piece of rock," slang f o r a twenty-dollar piece of rock cocaine. 86:6.) (RT at 85:24-

Duncan said he would "take [Jennings] to it," got

i n t o Jennings's vehicle, and directed Jennings to an area a b o u t two blocks away, where his partner was waiting in a van. (RT at 86:7-19.) After driving the two blocks,

J e n n i n g s handed Duncan a twenty dollar bill, from a s e r i e s of bills with pre-recorded serial numbers, and

2

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 28

D u n c a n exited the vehicle and walked towards a van. a t 88:23-26, 90:5-7.)

(RT

D u n c a n later returned to Jennings's vehicle, said " g e t ready for an exchange," and dropped a "small, w h i t i s h rock wrapped in clear plastic" into Jennings's h a n d through the open passenger's side window. 93:5-16.) (RT at

Jennings then indicated to other officers that

t h e y should "move in and take the subject in[to] custody." (RT at 93:17-24.)

O f f i c e r Erika Woolson then approached the van, a n n o u n c e d her presence, and knocked several times on the d r i v e r ' s side window. (RT at 145:11-20.) She then

n o t i c e d movement inside the van, and saw a female, later i d e n t i f i e d as Kelly Stadum. (RT at 145:21-28.) Woolson

d i r e c t e d Stadum to exit the vehicle through the driver's s i d e door. (Id.) Stadum did so, and Woolson patted her

d o w n for weapons and "passed her on" to Sergeant Susan F e n i s t r a . (RT 146:18-22.) Stadum then told Woolson that (RT at 146:23-27.)

h e r boyfriend was inside the van.

Woolson first noticed a male, later identified as P e t i t i o n e r , standing in the back of the van, and directed h i m to exit the van. (RT at 147:2-9.) A search of the

v a n led to the discovery of "torn off baggy corners," w h i c h , based on her training and experience, Woolson

3

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 28

i d e n t i f i e d as "the type of packaging used for narcotics." (RT at 148:27-149:6.)

P e t i t i o n e r was arrested, and placed in the back of a p o l i c e car. (RT at 148:11-13, 158:14-16.) Officer

C y n t h i a Stinson later searched Petitioner, and found U n i t e d States currency in his pants pocket and socks. The serial number on the $20 bill found in his left sock c o r r e s p o n d e d with one of those that had been pre-recorded f o r use in the buy-bust operation that evening. 159:20-160:19.) (RT at

When asked how he obtained that bill,

P e t i t i o n e r told Stinson that "he had been at different p l a c e s that day and gotten $20 bills from those places," i n c l u d i n g a store and in Reno. (RT at 161:25-162:6.)

2.

J u r y Selection and the Wheeler Motion

P e t i t i o n e r challenges the prosecutor's peremptory c h a l l e n g e to a Black juror, "Mr. P." 2

A t voir dire, Mr. P. told the court that, while he w a s in college at Humboldt State University, his roommate a n d basketball teammate was arrested for marijuana p o s s e s s i o n and spent time in jail as a result of that arrest. (Voir Dire RT at 15:5-19.) He also indicated

t h a t , "out of ten friends [he] grew up with[,] three were

Although the parties refer to the juror at issue by n a m e , the Court refers to him only by the initial of his l a s t name out of respect for his privacy.
4

2

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 28

m u r d e r e d , " and that his brother had been charged with g r a n d theft auto for stealing a stock car. (Voir Dire RT a t 36:12-17.) Mr. P. later told counsel for Petitioner's

c o - d e f e n d a n t that his mother "had a drug problem" while h e was growing up, and currently worked in drug abuse p r e v e n t i o n . (Voir Dire RT at 52:27-53:3.)

In the first round of peremptory challenges, the p r o s e c u t o r exercised three challenges, one of which was e x e r c i s e d against Mr. P. (Voir Dire RT at 74:1-3.)

C o u n s e l for both Petitioner and his co-defendant l a t e r brought a motion pursuant to People v. Wheeler, 22 C a l . 3d 258 (1978), ("the Wheeler motion") based on the d i s m i s s a l of Mr. P. and a second Black juror "within a s h o r t period of each other." (RT at 51:4-19.) The trial

j u d g e found that the defendants had met their burden of e s t a b l i s h i n g a prima facie case of discrimination, and t h u s asked the prosecutor to explain why he had exercised p e r e m p t o r y challenges as to the two Black jurors. 3 In evaluating a Wheeler motion, California state c o u r t s use the same burden-shifting analysis as that used u n d e r Batson v. Kentucky, 476 U.S. 79 (1986). "First, t h e defendant must make out a prima facie case `by s h o w i n g that the totality of the relevant facts gives r i s e to an inference of discriminatory purpose.' Second, o n c e the defendant has made out a prima facie case, the ` b u r d e n shifts to the State to explain adequately the r a c i a l exclusion' by offering permissible race-neutral j u s t i f i c a t i o n s for the strikes. Third, `[i]f a r a c e - n e u t r a l explanation is tendered, the trial court m u s t then decide . . . whether the opponent of the strike (continued...)
5
3

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 28

T h e prosecutor provided a lengthy explanation as to w h y he excused Mr. P. 4 First, he identified Mr. P.'s

d r e a d l o c k s , and his own understanding that "dreadlocks a r e somewhat associated with a Reggae culture which c e r t a i n l y as a culture has pretty liberal views and I t h i n k a lot of time promotes drug use, although maybe s p e c i f i c a l l y marijuana not cocaine base." 25.) (RT at 53:19-

Next, the prosecutor cited Mr. P.'s attendance at

H u m b o l d t State University, which he claimed had a r e p u t a t i o n as a "kind of a hot-bed for marijuana use," as w e l l as the arrest of his roommate there for the sale of marijuana. (RT at 53:36-54:3.)

The prosecutor also mentioned several aspects of Mr. P . ' s family history which led him to exercise a p e r e m p t o r y challenge. He noted that Mr. P.'s brother's

s t a t u s as a defendant in a vehicle theft case likely led h i m to "see[] the law work in -- pretty up close." a t 54:6-9.) t h r e e of (RT

The prosecutor argued that the murders of

Mr. P.'s childhood friends also served as an

" e x a m p l e [ ] where he's either seen the system work or not work." (RT at 54:10-12.) He also discussed Mr. P.'s

(...continued) h a s proved purposeful racial discrimination.'" People v. M i l l s , 48 Cal. 4th 158 (2010), quoting Johnson v. C a l i f o r n i a , 545 U.S. 162, 168 (2005). The prosecutor also provided an explanation for his e x e r c i s e of a peremptory as to the other Black juror. (RT at 55:8-56:22.) Petitioner does not challenge the d i s m i s s a l of that juror in this Petition.
6
4

3

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 28

m o t h e r and noted that her drug addiction and Mr. P.'s r e s u l t i n g experience and personal knowledge about a d d i c t i o n could have an impact on the case, as he thought " a d d i c t i o n is going to be something that the defense is g o n n a try and kind of make an issue in this case. 54:13-27.) (RT at

T h e trial court found that the prosecutor " a r t i c u l a t e d sufficient basis, variety of reasons why he e x e r c i s e d peremptory challenge as to each of the two j u r o r s , " and denied the Wheeler motion. 25.) (RT at 58:22-

3.

C o n v i c t i o n and Sentencing of a two-day trial, Petitioner's

A t the conclusion

c o u n s e l argued that the prosecution had not proven beyond a reasonable doubt that Petitioner was involved with the a c t u a l sale of the narcotics. (RT at 200:9-202:5.) The

p r o s e c u t o r responded that, based on "common sense," P e t i t i o n e r ' s possession of the pre-recorded bill could o n l y mean he was involved with the sale, at the least, u n d e r a theory of aiding and abetting. 209:20.) (RT at 202:7-

On April 7, 2005, the jury found Petitioner and his c o - d e f e n d a n t each guilty of selling cocaine base, in v i o l a t i o n of section 11352(a) of the California Health

7

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 28

a n d Safety Code.

(RT at 242:5-10.)

Petitioner waived

h i s right to a jury determination as to the issue of w h e t h e r he had previously been convicted for a serious f e l o n y , and thus qualified for a sentencing enhancement u n d e r California Penal Code section 1170.12. 5 234:8-235:12.) (RT at

The trial court heard evidence on this

i s s u e , and found that Petitioner's January 24, 1984 c o n v i c t i o n of first degree burglary, in violation of s e c t i o n 1192.7(c) of the California Penal Code, in the A l a m e d a County Superior Court, constituted a conviction f o r a serious felony. (RT at 245:23-251:14.)

The court sentenced Petitioner to a term of eight y e a r s : four years for the Health and Safety Code v i o l a t i o n , doubled due to the previous serious felony conviction. (RT at 274:5-8.)

B.

P r o c e d u r a l History P e t i t i o n e r , represented by counsel, appealed his

c o n v i c t i o n to the California Court of Appeal, Third A p p e l l a t e District, on May 5, 2005, challenging the trial c o u r t ' s ruling on his Wheeler motion. The Court of

A p p e a l affirmed his conviction on December 4, 2006. Petitioner, still represented by counsel, then sought

Cal. Penal Code § 1170.12 is part of California's " T h r e e Strikes Law," which provides for enhanced s e n t e n c e s for defendants who have previously been c o n v i c t e d of certain felonies.
8

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 28

r e v i e w by the California Supreme Court on January 11, 2007. The court denied review without opinion on

F e b r u a r y 21, 2007.

W h i l e his appeal was pending in the Court of Appeal, P e t i t i o n e r , acting in pro se, filed a petition for a writ o f habeas corpus in that intermediate appellate court on O c t o b e r 4, 2006, alleging ineffective assistance of trial c o u n s e l for failure to move for severance. The appellate

c o u r t summarily denied the petition with a reference to I n re Hillery, 202 Cal. App. 2d 293 (1962), on October 1 2 , 2006.

On November 20, 2006, Petitioner filed a pro se p e t i t i o n for a writ of habeas corpus in the California S u p e r i o r Court, Sacramento County, again on the basis of h i s trial counsel's failure to move for severance. This

p e t i t i o n was denied by written opinion on January 10, 2007. On February 8, 2007, Petitioner filed another

h a b e a s petition stating the same basis in the Court of A p p e a l , which was denied summarily on March 8, 2007. On

M a r c h 21, 2007, Petitioner then filed a habeas petition i n the California Supreme Court addressing this same i s s u e , which was denied summarily on July 25, 2007.

On April 11, 2007, Petitioner filed a pro se habeas p e t i t i o n in the Sacramento County Superior Court,

9

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 28

a l l e g i n g the trial court exceeded its jurisdiction and m i s i n t e r p r e t e d the California Penal Code in sentencing him. The Superior Court denied this petition by written On June 29, 2007, Petitioner,

o p i n i o n on June 7, 2009.

f i l e d another habeas petition in the Court of Appeal on t h e s e same grounds. The Court of Appeal summarily denied Finally, Petitioner filed

t h e petition on July 5, 2007.

a habeas petition on these grounds in the California S u p r e m e Court on July 23, 2007, which was denied s u m m a r i l y on January 3, 2008.

C.

P e t i t i o n e r ' s Claims P e t i t i o n e r filed this petition on December 7, 2007,

a n d asserts the following grounds for federal habeas c o r p u s relief: 1. Petitioner was deprived of the effective

a s s i s t a n c e of counsel because trial counsel failed to s e e k severance; 2. Petitioner was deprived of his right to a jury of

h i s peers, based on the denial of his Wheeler/Batson motion; 3. P e t i t i o n e r was deprived of the effective

a s s i s t a n c e of counsel by appellate counsel's "failure to i n v e s t i g a t e and research the trial records for a legal d e f e n s e on a non-recidivist application";

10

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 28

4.

P e t i t i o n e r was deprived of his right to appeal

a n d "increase conduct alleged bey[o]nd the statutory time p e r i o d limitation" in his 1984 case; 5. P e t i t i o n e r was deprived of his right to due

p r o c e s s by the trial court's disregard of the terms of a p r i o r plea agreement; 6. " C o u n s e l ' s duty to inform defendant of all

c o n s e q u e n c e supports petitioner's claim that he was duly i n f o r m e d of 3 years parole and the 1 to 5 years future r e c i d i v i s t enhancement"; 7. P e t i t i o n e r was deprived of his right to

e f f e c t i v e assistance of counsel by trial counsel's " f a i l u r e to seek specific performance" of the terms of t h e prior plea agreement; 8. P e t i t i o n e r ' s right not to be subjected to a Bill

o f Attainder was violated by actions of the California Legislature; 9. T h e trial court exceeded its jurisdiction by

s e n t e n c i n g Petitioner under an invalid statute; and 1 0 . P e t i t i o n e r ' s right to due process was violated b y the trial court's incorrect application of the C a l i f o r n i a Penal Code.

I I . LEGAL STANDARD T h e Antiterrorism and Effective Death Penalty Act of 1 9 9 6 ("AEDPA") governs the Court's review of this P e t i t i o n , as the Petition was filed after AEDPA's

11

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 28

e f f e c t i v e date.

Under 28 U.S.C. § 2254(a), "a district

c o u r t shall entertain an application for a writ of habeas c o r p u s in behalf of a person in custody pursuant to the j u d g m e n t of a State court only on the ground that he is i n custody in violation of the Constitution or laws or t r e a t i e s of the United States."

W h e n considering a properly exhausted claim under A E D P A , a federal court must defer to a state court's h o l d i n g unless it "'was contrary to, or involved an u n r e a s o n a b l e application of, clearly established Federal l a w , as determined by the Supreme Court of the United S t a t e s , ' or if the state court decision 'was based on an u n r e a s o n a b l e determination of the facts in light of the e v i d e n c e presented in the State court proceeding.'" Smith v. Curry, 580 F.3d 1071, 1079 (9th Cir. 2009), q u o t i n g 28 U.S.C. §§ 2254(d)(1)-(2).

"Clearly established Federal law" is defined as "the g o v e r n i n g legal principle or principles set forth by the S u p r e m e Court at the time the state court renders its decision." Curry, quoting Lockyer v. Andrade, 538 U.S. "[I]t is not 'an unreasonable for a

6 3 , 71-72 (2003).

a p p l i c a t i o n of clearly established Federal law'

s t a t e court to decline to apply a specific legal rule t h a t has not been squarely established by [the Supreme] Court." Knowles v. Mirzayance, --- U.S. ---, 129 S. Ct.

12

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 28

1 4 1 1 , 1419 (2009).

However, "the Supreme Court need not

h a v e addressed an identical fact pattern to qualify as c l e a r l y established law, as 'even a general standard may b e applied in an unreasonable manner.'" Jones v. Ryan,

5 8 3 F.3d 626, 635 (9th Cir. 2009), quoting Panetti v. Q u a r t e r m a n , 551 U.S. 930, 953 (2007).

III. A.

DISCUSSION

P e t i t i o n e r ' s First Claim

P e t i t i o n e r first claims trial counsel's failure to seek s e v e r a n c e of Petitioner's trial from that of his cod e f e n d a n t constituted ineffective assistance of counsel. To establish a constitutional violation based on i n e f f e c t i v e assistance of counsel, "a petitioner must s h o w that: (1) his trial counsel's performance 'fell b e l o w an objective standard of reasonableness'; and (2) ' t h e r e is a reasonable probability that, but for c o u n s e l ' s unprofessional errors, the result of the p r o c e e d i n g would have been different.'" Jones, 583 F.3d

a t 636, quoting Strickland v. Washington, 466 U.S. 668, 6 8 8 , 694 (1984).

Petitioner contends that counsel had "knowledge of [ a ] statement made by [his] co-defendant," that should h a v e led counsel to seek severance of the cases for trial. (Pet. at 5.) This claim is set out in more

d e t a i l in Petitioner's state court petitions, where he

13

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 28

a r g u e d that, had the trials been severed, his cod e f e n d a n t could have testified that Petitioner did not s u p p l y the drugs sold in this case. A p p . Oct. 4, 2006 Pet. at 2-4. See, e.g., Ct. of

The record contains no

e v i d e n c e whatsoever suggesting that Petitioner's cod e f e n d a n t would have given any such testimony.

Even if such evidence existed, the Superior Court f o u n d that any failure of trial counsel to seek severance w a s not prejudicial. 6 The court stated:

[ I ] t is unlikely such testimony would have been d e e m e d credible given the police testimony that a n officer gave marked money to the co-defendant w h o then approached petitioner's van (where the l a t t e r was waiting) and shortly thereafter r e t u r n e d with drugs. In addition, a search of t h e van yielded drug-packaging material along w i t h the marked money. ( J a n . 10, 2007 Order, In re Billy Lacey, Case No. 0 6 F 0 9 8 0 2 , Sacramento Co. Super. Ct. at 2.) Upon an

i n d e p e n d e n t review of the factual record, the Court c o n c l u d e s that the Superior Court's conclusion that any f a i l u r e to seek severance was not prejudicial was not an u n r e a s o n a b l e view of the facts under clearly established f e d e r a l law, and thus federal habeas relief is not warranted.

"When reviewing a state court's summary denial of a habeas petition, we 'look through' the summary d i s p o s i t i o n to the last reasoned state court decision." Richter v. Hickman, 578 F.3d 944, 951 (9th Cir. 2009).
14

6

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 28

B.

P e t i t i o n e r ' s Second Claim P e t i t i o n e r bases his second claim on the trial

c o u r t ' s denial of his Wheeler motion, based on the D i s t r i c t Attorney's exercise of a peremptory challenge a g a i n s t juror Mr. P. "for having [a] dread-lock hair style." (Pet. at. 5.)

T h e Court construes a challenge to a denial of a W h e e l e r motion, alleging that a peremptory challenge was e x e r c i s e d based on a prohibited characteristic, as one b r o u g h t under Batson v. Kentucky, 476 U.S. 79 (1986). See, e.g., Gonzalez v. Brown, 585 F.3d 1202, 1210 (9th C i r . 2009); Paulino v. Harrison, 542 F.3d 692, 694 (9th C i r . 2008). steps. "The Batson framework proceeds in three

First, a defendant raising a Batson claim must The

e s t a b l i s h a prima facie case of discrimination.

b u r d e n of production then shifts to the prosecutor to o f f e r race-neutral reasons for the peremptory strikes. A f t e r the prosecutor comes forward with race-neutral r e a s o n s , '[t]he trial court then will have the duty to d e t e r m i n e if the defendant has established purposeful discrimination.'" Paulino, 542 F.3d at 699, quoting

B a t s o n , 476 U.S. at 98.

S i n c e the trial court determined that Petitioner had i n d e e d established a prima facie case of discrimination, t h e issue is whether, given the race-neutral reasons

15

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 28

o f f e r e d by the prosecutor, Petitioner established p u r p o s e f u l discrimination.

T h e last reasoned state court decision addressing P e t i t i o n e r ' s Wheeler claim was the Court of Appeal's d e c i s i o n on direct appeal, People v. Duncan, No. C049739, 2 0 0 6 WL 3480375 (Cal. Ct. of App. Dec. 4, 2006). As to

M r . P., that court agreed with Petitioner that, "standing a l o n e , the prosecutor's reference to [Mr. P.'s] d r e a d l o c k s may have sent a mixed message that suggested c o n s i d e r a t i o n of his race." Evaluating the reference to

d r e a d l o c k s in a greater context, though, the Court of A p p e a l found that: t h e prosecutor's explanation for excusing [Mr. P . ] focused on the potential impact of [Mr. P . ' s ] personal experiences with the drug culture o n his view of the prosecution's case. [Mr. P . ' s ] statements revealed multiple incidents of d r u g possession and addiction involving people h e loved. As voir dire progressed, [Mr. P.] i n t e r r u p t e d to volunteer that he had 'a pretty g o o d knowledge just on a lot of things to do w i t h drug addiction and all that stuff. . . . My b r o t h e r ' s been in it for 15, 20 years.' On this r e c o r d , the court could decide the prosecution w a s legitimately concerned that [Mr. P.'s] life e x p e r i e n c e , as revealed in voir dire e x a m i n a t i o n , would influence his ability to a s s e s s the case objectively. 2 0 0 6 WL 3480375, at *6.

"To accept a prosecutor's stated nonracial reasons, t h e court need not agree with them. The question is not

w h e t h e r the stated reason represents a sound strategic j u d g m e n t , but whether counsel's race-neutral explanation
16

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 28

f o r a peremptory challenge should be believed."

Kesser

v . Cambra, 465 F.3d 351, 359 (9th Cir. 2006) (en banc). Only one United States Supreme Court case has addressed t h e issue of Batson challenges as related to jurors' g r o o m i n g or hairstyles. In Purkett v. Elem, 514 U.S.

7 6 5 , 769 (1995), the Court held that the exclusion of a B l a c k male juror because "he had long, unkempt hair, a m u s t a c h e , and a beard - is race neutral and satisfies the p r o s e c u t i o n ' s step two burden of articulating a n o n d i s c r i m i n a t o r y reason for the strike." In doing so,

t h e Court noted that "The wearing of beards is not a c h a r a c t e r i s t i c that is peculiar to any race." Id.,

q u o t i n g EEOC v. Greyhound Lines, Inc., 635 F.2d 188, 190, n . 3 (3d Cir. 1980).

Here, the Court acknowledges that the specific h a i r s t y l e cited by the prosecutor may indeed be a s s o c i a t e d with one race more than another. But "[t]he

c o u r t must evaluate the record and consider each e x p l a n a t i o n within the context of the trial as a whole," K e s s e r , 465 F.3d at 360, and, given the prosecutor's e x p l i c i t discussion of the association between dreadlocks a n d drug use, in addition to Mr. P.'s personal e x p e r i e n c e s with crime, drug use and addiction, the Court o f Appeal's determination that the prosecutor "was l e g i t i m a t e l y concerned that [Mr. P.'s] life experience, a s revealed in voir dire examination, would influence his a b i l i t y to assess the case objectively," was not
17

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 28

o b j e c t i v e l y unreasonable.

Thus, the denial of the

W h e e l e r motion does not warrant federal habeas relief.

C.

P e t i t i o n e r ' s Third Claim I n Petitioner's third claim he contends he was denied

e f f e c t i v e assistance of counsel by his appellate c o u n s e l ' s "failure to investigate and research the trial r e c o r d s for a legal defense on a non-recidivist application." (Pet. at 6.)

Even construing Petitioner's seven state court habeas p e t i t i o n s liberally, this argument was not "fairly p r e s e n t e d " to the state courts, as no petition contained a n y argument of ineffective assistance by either trial or a p p e l l a t e counsel in relation to the application of the T h r e e Strikes Law to him. Accordingly, Petitioner's See Cone v. Bell,

t h i r d claim is procedurally barred.

1 2 9 S. Ct. 1769, 1781 (2009) ("A claim is procedurally b a r r e d when it has not been fairly presented to the state c o u r t s for their initial consideration.")

E v e n if the third claim were not procedurally barred, t h o u g h , it would fail on the merits. The Strickland

s t a n d a r d , discussed above, applies to Petitioner's claim o f ineffective assistance of appellate counsel. See

T u r n e r v. Calderon, 281 F.3d 851, 872 (9th Cir. 2002). There is no dispute that Petitioner was actually c o n v i c t e d of a serious felony in 1984.
18

See, e.g.,

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 28

C l e r k ' s Supp. Trans. at 008 (1984 Abstract of Judgment). As described more fully below, Petitioner's contentions t h a t the application of the Three Strikes Law was u n l a w f u l are unsupported by statutory and case law, and t h u s any failure to "investigate" these legal theories w a s nonprejudicial.

D.

P e t i t i o n e r ' s Fourth Claim P e t i t i o n e r ' s fourth claim is that he was denied his

r i g h t to appeal his 1984 conviction in the Alameda County S u p e r i o r Court, as he was not "advised of his right to a p p e a l the information that in itself did not carry a l i f e sentence." though. (Pet. at 6.) This claim is barred,

"[O]nce a state conviction is no longer open to

d i r e c t or collateral attack in its own right because the d e f e n d a n t failed to pursue those remedies while they were a v a i l a b l e (or because the defendant did so u n s u c c e s s f u l l y ) , the conviction may be regarded as c o n c l u s i v e l y valid. If that conviction is later used to

e n h a n c e a criminal sentence, the defendant generally may n o t challenge the enhanced sentence through a petition u n d e r § 2254 on the ground that the prior conviction was u n c o n s t i t u t i o n a l l y obtained," except in the limited c i r c u m s t a n c e where "the prior conviction used to enhance t h e sentence was obtained where there was a failure to a p p o i n t counsel in violation of the Sixth Amendment." Lackawanna County Dist. Atty. v. Coss, 532 U.S. 394, 4030 4 (2001). Since Petitioner's challenge to the 1984
19

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 28

c o n v i c t i o n does not fall under this narrow exception, his f o u r t h claim does not assert a valid ground for federal h a b e a s relief.

E.

P e t i t i o n e r ' s Fifth Claim N e x t , Petitioner claims that the use of his 1984

c o n v i c t i o n , which was the result of a plea agreement, to e n h a n c e his sentence violated the terms of the 1984 plea a g r e e m e n t , and thus was a violation of his right to due process. Even construing Petitioner's state court

p e t i t i o n s liberally, this argument was not "fairly p r e s e n t e d " to the state courts prior to this petition, a n d , as such, is procedurally barred. C t . at 1781. See Cone, 129 S.

E v e n if this claim were not procedurally barred, t h o u g h , it would fail on the merits. Although Petitioner

c o n t e n d s he was told that the collateral consequences of h i s plea were limited to use in the future as a "1 to 5 y e a r s , " (Pet. Att. at 1), enhancement for a future f e l o n y , he has failed to show any evidence in support of t h i s statement. See Calloway v. White, 649 F. Supp. 2d 1 0 4 8 , 1055 (N.D. Cal. 2009) (petitioner bears burden to s h o w evidence prosecutor agreed not to use conviction in s u b s e q u e n t proceedings). Moreover, a prosecutor would

h a v e had no authority to make such a binding promise as t o future prosecutors of other crimes. Miles v. Runnels,

20

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 28

N o . CIV S-04-1431 LKK EFB P, 2010 WL 489678 at *14 (E.D. C a l . Feb. 5, 2010).

The court that accepted Petitioner's plea in 1984 a l s o had no duty to inform Petitioner of the possibility t h a t his conviction could be used against him in the future. "When accepting a defendant's plea, courts must

i n f o r m defendants of only direct, rather than collateral, c o n s e q u e n c e s of a guilty plea." Garcia v. Felker, No. CV

0 6 - 7 7 3 2 - R S W L ( C T ) , 2009 WL 2776664, at *8 (C.D. Cal. Aug. 2 6 , 2009), citing Torrey v. Estelle, 842 F.2d 234, 235 ( 9 t h Cir. 1988). The possibility that a defendant will

b e convicted of another offense in the future and receive a n enhanced sentence based on the current conviction is a c o l l a t e r a l , not direct, consequence of a plea. Id.,

c i t i n g United States v. Brownlie, 915 F.2d 527, 528 (9th C i r . 1990).

P e t i t i o n e r thus has failed to establish an e n t i t l e m e n t to habeas relief based on his fifth claim.

F.

P e t i t i o n e r ' s Sixth Claim P e t i t i o n e r ' s sixth claim is that "Counsel's duty to

i n f o r m defendant of all consequence supports p e t i t i o n e r [ ' ] s claim that he was duly informed of 3 years p a r o l e and the 1 to 5 future recidivist enhancement." (Pet. Att. at 1.) This does not appear to be a free-

s t a n d i n g claim of constitutional violation, but merely
21

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 28

a d d i t i o n a l support for his argument that the c o n s i d e r a t i o n of his prior plea in his sentence was unlawful. Accordingly, Petitioner's sixth claim fails to

j u s t i f y habeas relief.

G.

P e t i t i o n e r ' s Seventh Claim P e t i t i o n e r contends his trial counsel's performance

w a s constitutionally deficient because he failed to seek " s p e c i f i c performance" of the terms of the 1984 plea agreement. This claim was not fairly presented to the

s t a t e courts in any of Petitioner's state court p e t i t i o n s , and thus is barred. 8 9 6 , 911 (9th Cir. 2004). Casey v. Moore, 386 F.3d

Moreover, as explained above,

t h e r e is no indication that the 1984 plea agreement a c t u a l l y was violated by the use of the 1984 conviction i n enhancing Petitioner's sentence, and there was thus no p r e j u d i c e under Strickland. Accordingly, this claim

p r o v i d e s no basis for habeas relief.

H.

Petitioner's Eighth Claim A c c o r d i n g to Petitioner, his constitutional rights

w e r e violated when he received a "double sentence" by the i m p o s i t i o n of a sentencing enhancement under the Three S t r i k e s Law. Petitioner argues that this sentence was an This claim does not appear

u n l a w f u l bill of attainder.

t o have been presented to the state court, and is thus d e e m e d waived. Even if Petitioner had not waived this

c l a i m , though, the Three Strikes Law "is not a bill of
22

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 28

a t t a i n d e r because it does not single anyone out." v . George, 486 F.3d 1120, 1127 (9th Cir. 2007).

Wolfe

T o the extent Petitioner's claim can be construed as a challenge to the Three Strikes Law under the C o n s t i t u t i o n ' s prohibitions of double jeopardy and ex p o s t facto punishment, such a claim is without merit. See Simpson v. Thomas, 528 F.3d 685, 689-90 (9th Cir. 2 0 0 8 ) (rejecting double jeopardy challenge to Three S t r i k e s Law); United States v. Kaluna, 192 F.3d 1188, 1 1 9 9 (9th Cir. 1999) (three strikes law does not violate e x post facto clause so long as statute was enacted at t h e time the present offense was committed). P e t i t i o n e r ' s eighth claim thus fails to establish an e n t i t l e m e n t to habeas relief.

I.

P e t i t i o n e r ' s Ninth Claim Petitioner's ninth claim is that the trial court

" a c t e d in excess of its jurisdiction by imposing a s e n t e n c e on petitioner under an invalid statute," by " f a i l [ i n g ] to look first to the words of the statute." (Pet. Att. at 3.) Petitioner does not specify what

s t a t u t e he is challenging, and only states that the " t r i a l court failed to look first to the words of the s t a t u t e before he sentence[d] prisoner to 4 years double p l u s 85%." (Id.) This claim "is too vague and

c o n c l u s o r y for the Court to determine the exact nature of t h e claim. Petitioner must state his claim with
23

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 28

s u f f i c i e n t specificity."

Courtois v. United States, No.

1 : 0 6 - c v - 0 0 1 8 2 - O W W - T A G HC, 2007 WL 4463230 (E.D. Cal. Dec. 1 7 , 2007).

To the extent Petitioner seeks to challenge the trial c o u r t ' s interpretation or application of a state s e n t e n c i n g law, "the application of state sentencing law d o e s not raise a federal constitutional issue" in and of itself. Bowlin v. Chrones, No. CV F 06-1361 LJO DLB HC, See

2 0 0 8 WL 3540617, at *7 (E.D. Cal. Aug. 13, 2008).

a l s o Beaty v. Stewart, 303 F.3d 975, 986 (9th Cir. 2002). Petitioner's ninth claim therefore does not justify f e d e r a l habeas relief.

J.

P e t i t i o n e r ' s Tenth Claim I n his tenth claim, Petitioner argues the trial court

" e r r o n e o u s l y imposed a sentence in excess of statutory l a w and under a generic statute," by misinterpreting Cal. P e n a l Code section 2933.1, which applies to the c a l c u l a t i o n of worktime credits. (Pet. Att. at 4.)

Petitioner's claim regarding the application of w o r k t i m e credits was considered and rejected by the S u p e r i o r Court in its June 7, 2007 written opinion, both o n the merits and because the court deemed Petitioner's o b j e c t i o n s to sentencing errors waived based on his f a i l u r e to raise them at the time of sentencing, in his a p p e a l , or in his previous habeas petition.
24

A state

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 28

c o u r t ' s finding that a petitioner waived a claim bars c o n s i d e r a t i o n of the merits of that claim on federal h a b e a s review. (2002). Stewart v. Smith, 536 U.S. 856, 860-61

Therefore, Petitioner's tenth claim fails to

i d e n t i f y a viable ground for habeas relief.

IV.

CONCLUSION

F o r the foregoing reasons, the Petition for Writ of H a b e a s Corpus is DENIED.

Dated: April 12, 2010 VIRGINIA A. PHILLIPS United States District Judge

25