Scott v. Adams

Filing 62

FINDINGS and RECOMMENDATIONS signed by Magistrate Judge Carolyn K. Delaney on 2/15/12 RECOMMENDING that petitioners application for a writ of habeas corpus be denied. Referred to Judge Garland E. Burrell, Jr.; Objections to F&R due within 21 days.(Dillon, M)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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CURTIS SCOTT,

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Petitioner,
vs.
RAUL LOPEZ,
Respondent.

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No. CIV-S-08-2227 GEB CKD P

FINDINGS AND RECOMMENDATIONS
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Petitioner is a California prisoner proceeding with counsel with a petition for writ

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of habeas corpus under 28 U.S.C. § 2254. Petitioner challenges convictions entered in the

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Superior Court of Amador County for: (1) battery on a non-confined person by a prisoner; and

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(2) resisting an executive officer in performance of their duties. Petitioner was convicted on June

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1, 2006. On June 27, 2006, he was sentenced to consecutive 25-years-to-life terms of

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imprisonment under California’s “Three Strikes Law.” Those sentences were ordered to be

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served consecutive to the 25-years-to-life sentence petitioner was already serving. This action is

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proceeding on the second amended petition filed November 20, 2010.

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I. Standard For Habeas Corpus Relief

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An application for a writ of habeas corpus by a person in custody under a
judgment of a state court can be granted only for violations of the Constitution or laws of the
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United States. 28 U.S.C. § 2254(a). Also, federal habeas corpus relief is not available for any

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claim decided on the merits in state court proceedings unless the state court’s adjudication of the

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claim:

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(1) resulted in a decision that was contrary to, or involved an
unreasonable application of, clearly established federal law, as
determined by the Supreme Court of the United States; or

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(2) resulted in a decision that was based on an unreasonable
determination of the facts in light of the evidence presented in the
State court proceeding.

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28 U.S.C. § 2254(d).1 It is the habeas petitioner’s burden to show he is not precluded from

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obtaining relief by § 2254(d). See Woodford v. Visciotti, 537 U.S. 19, 25 (2002).

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The “contrary to” and “unreasonable application” clauses of § 2254(d)(1) are
different. As the Supreme Court has explained:

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A federal habeas court may issue the writ under the “contrary to”
clause if the state court applies a rule different from the governing
law set forth in our cases, or if it decides a case differently than we
have done on a set of materially indistinguishable facts. The court
may grant relief under the “unreasonable application” clause if the
state court correctly identifies the governing legal principle from
our decisions but unreasonably applies it to the facts of the
particular case. The focus of the latter inquiry is on whether the
state court’s application of clearly established federal law is
objectively unreasonable, and we stressed in Williams [v. Taylor,
529 U.S. 362 (2000)] that an unreasonable application is different
from an incorrect one.

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Bell v. Cone, 535 U.S. 685, 694 (2002).

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The court will look to the last reasoned state court decision in determining

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whether the law applied to a particular claim by the state courts was contrary to the law set forth

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in the cases of the United States Supreme Court or whether an unreasonable application of such

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law has occurred. Avila v. Galaza, 297 F.3d 911, 918 (9th Cir. 2002).

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/////

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Title 28 U.S.C. § 2254(d) establishes a precondition to federal habeas relief, not
grounds for entitlement to habeas relief. Fry v. Pliler, 551 U.S. 112, 119 (2007).
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A state court does not apply a rule different from the law set forth in Supreme

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Court cases, or unreasonably apply such law, if the state court simply fails to cite or fails to

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indicate an awareness of federal law. Early v. Packer, 537 U.S. 3, 8 (2002).

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“[W]hen a federal claim has been presented to a state court and the state court has

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denied relief, it may be presumed that the state court adjudicated the claim on the merits in the

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absence of any indication or state-law procedural principles to the contrary.” Harrington v.

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Richter, 131 S. Ct. 770, 784-85 (2011). “The presumption may be overcome when there is

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reason to think some other explanation for the state court’s decision is more likely.” Id. at 785.

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Where the state court fails to give any reasoning whatsoever in support of the

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denial of a claim arising under Constitutional or federal law, the Ninth Circuit has held that this

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court must perform an independent review of the record to ascertain whether the state court

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decision was objectively unreasonable. Himes v. Thompson, 336 F.3d 848, 853 (9th Cir. 2003).

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As long as “‘fairminded jurists could disagree’ on the correctness of the state court’s decision,”

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habeas relief is precluded. Harrington, 131 S. Ct. 786.

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If the state court does not reach the merits of a particular claim, de novo review

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applies. Lewis v. Mayle, 391 F.3d 989, 996 (9th Cir. 2004).

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II. Background

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On direct appeal, the California Court of Appeal for the Third Appellate District
(Court of Appeal) summarized the facts presented at trial as follows:
On December 31, 2002, defendant, an inmate at Mule Creek State
Prison, was angered when Correctional Officer Gaylord Gonzales
required him to comply with a prison rule concerning seating in the
dining hall. He cursed at the officer. When the officer approached
him and demanded his identification card defendant punched the
officer in the face. As the officer fell to the floor defendant struck
him repeatedly.
On August 8, 2003, Michael Cherry was working as a correctional
sergeant at the prison. The prison was operating under a lockdown
that day and the prisoners were denied access to the exercise yard.
Another officer reported to Sergeant Cherry that defendant was
very upset about not being able to go to the exercise yard. Sergeant
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Cherry went to the door of defendant’s cell and talked to him.

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Defendant was very angry. He was screaming, yelling, kicking the
door and pacing. He cursed at Sergeant Cherry and threatened to
kill him. Defendant was demanding to be released for his yard
time. Sergeant Cherry explained that the exercise yard was closed
due to a security issue, and testified, “That’s when [defendant]
started threatening [him] some more.”

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Resp’t’s Lodged Doc. 1 at 2-3.

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The claims raised in this action were presented to California courts either through

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direct review or state collateral actions and all claims were presented to the California Supreme

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Court. The court will identify procedural history with respect to each particular claim, to the

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extent necessary, below.

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III. Arguments And Analysis

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A. Right Of Self-Representation

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Petitioner’s first claim is that the trial court denied him his Constitutional right to

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self-representation at trial. This claim was presented to California’s courts on direct appeal. The

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Court of Appeal issued the last reasoned opinion with respect to this claim.

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The Court of Appeal summarized the facts concerning petitioner’s claim as
follows:

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On March 1, 2004, defendant came before the court for
arraignment on the amended complaint. He told the court that he
wanted to represent himself and that he had filed a Faretta motion.
(Faretta v. California (1975) 422 U.S. 806 [45 L. Ed .2d 562].)
The court advised him that self-representation would be ill-advised
and suggested that he should allow his new attorney to represent
him. After talking with counsel, he acquiesced.

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On November 17, 2004, defendant came before the court on a
Pitchess2 motion. His counsel said defendant wanted to make a
Marsden motion3 and a Faretta motion. Defendant was concerned
that some of his records were missing. In the course of the

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Pitchess v. Superior Court (1974) 11 Cal.3d 531.

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People v. Marsden (1970) 2. Cal.3d 118.
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Marsden hearing defendant stated he had the unblockable right to
proceed under Faretta at any time. The court acknowledged this
and invited him to file a Faretta motion for consideration at the
next hearing.

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On December 8, 2004, defendant came before the court for a status
hearing. After the conclusion of the discussion of various pending
matters defense counsel said that defendant would like to address
the court. Defendant asserted that he had psychiatric problems and
wanted to inform the court that it was hard to follow the
proceeding and that he was “not comprehending anything that’s
going on.” The court noted he appeared to have been alert while in
court. The prosecutor said he had just asked defense counsel
whether he was concerned about defendant’s mental competency.
Defendant interjected with a disorganized protest about not being
allowed to assist in his defense and an assertion that he had 11
motions to file. The court reminded him that he was represented
by counsel and asked if there was anything further. The following
ensued.
“[DEFENDANT]: You are saying I don’t have a right to represent
myself on Faretta?

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“THE COURT: You may be able to do that, but you ought to file a
motion before that can be heard. I’ll have to have the District
Attorney’s response to it.

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I completed the matters on calender. You are remanded to the
custody of the Department of Corrections [and Rehabilitation].

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“[DEFENDANT]: Refusing to let me address the Court on the
Faretta matter?

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“THE COURT: You may be seated. You may be seated.
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“[DEFENDANT]: I don’t have a right to proceed on Faretta? I
have the written motion.

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“THE COURT: Take the defendant away.

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On June 20, 2005, a Marsden hearing was conducted. After the
hearing, the Marsden motion was denied and the court said it was
going to hear argument on the pending section 995 motion.
Defendant objected that he was not ready for that because he
wanted to supply evidence. The court and counsel told him the
matter was to be resolved solely on the transcript of the preliminary
examination.

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When the matter returned to open court defendant persisted in
personally addressing the court, insisting that he wanted to make a
record concerning some kind of double jeopardy claim. The court
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said the time had come to proceed with the section 995 motion.
The following exchange ensued:

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“[DEFENDANT]: Excuse me, Your Honor.
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“THE COURT: No, nothing further.
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“[DEFENDANT]: I can’t represent myself?
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“THE COURT: No. Let’s move forward.
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“[DEFENDANT]: So you’re refusing me the right to represent
myself, proceed pro. per.? You’re refusing me that right?

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“THE COURT: You have a trial date next week.

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“[DEFENSE COUNSEL]: Your Honor, it’s not next week. It’s
three weeks.

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“THE COURT: Three weeks away. And for purposes of today,
you’re going to- -you can file your own motion to be represented
by yourself, but I’m not going to hear it today. It’s 10 minutes to
5:00 and I’m going to hear the [section] 995 so we can move
forward today.

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On October 12, 2005, after another Marsden motion was denied,
the court offered to address the issue of self representation.
Defendant did not immediately take up the offer. When the matter
returned to open court his counsel said that defendant would like to
set a date for further motions, including a Faretta motion. The
court calendered the matter for November 16, 2005.
When the matter came on November 16, 2005, defendant made
another Marsden motion. The court granted the motion and
defendant accepted appointment of a new attorney.
On May 17, 2006, defendant made another Marsden motion. The
gist of his grievance was that counsel refused to file motions that
defendant wanted filed. Counsel explained why he believed the
motions were inappropriate. The court denied the motion. When
the matter returned to open court defendant asserted that he was
being forced by counsel’s refusal to make the motions he wanted,
into representing himself. He agreed that he wanted to make a
Faretta motion but insisted, five times, that he was doing so under
“duress.”
The court said defendant should fill out the court’s Faretta form.
Defendant refused to do so. He asserted that he had his “own
motion” and “[he] d[id]n’t have to agree to those stipulated terms
because [he was] being forced.” The court assured him that using
the form did not result in stipulated terms. Defendant again
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refused to fill out the form. The court said that the form was
designed to make sure that defendant understood the
responsibilities of self-representation and that the court was
required to ask the questions that were on the form. Defendant
reiterated his refusal. The court said the motion for selfrepresentation would be entertained at the next hearing.

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At the next hearing on May 30, 2006, the court noted that
defendant had refused to fill out the Faretta form and asked him to
explain. Defendant said he refused because his self-representation
was involuntary. In his view, he was being forced to choose
between bad counsel and no counsel. The court replied that if
defendant undertook self-representation pursuant to Faretta, he
would be “stuck with the consequences” and could not claim that
he was “represented by incompetent counsel.” Defendant insisted
that he was being forced into self-representation for the reasons
given in his Marsden motion for replacement of counsel. The
court said this was not an acceptable basis for granting selfrepresentation and denied the Faretta motion.
The court then conducted a Marsden hearing. After an extensive
and patient inquiry the court denied the Marsden motion, finding
that counsel was fully competent and that the cause of
dissatisfaction was that defendant had his own view of the law and
refused to listen to counsel concerning trial tactics.

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Resp’t’s Lodged Doc. 1 at 3-7. The Court of Appeal then addressed petitioner’s right of self-

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representation claim as follows:

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Defendant contends that the trial court erred in denying his
requests to represent himself. He argues that he was repeatedly
denied his constitutional right under Faretta to represent himself.
The argument is unpersuasive and the contention of error is not
meritorious.
Defendant asserts that his request for self-representation was
consistently made over the course of pretrial proceedings, and was
unequivocal, particularly at the proceedings related in our
procedural background of his Faretta claim. He fails to make a
particularized argument concerning error at any one of the
proceedings, treating them as an aggregate. We address his claim
on that basis, noting that in many instances defendant’s request
was not denied; rather he withdrew it or resolution was continued
until completion of the scheduled business presently before the
court or because the scheduled matters were complete.

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Defendant acknowledges that a Faretta request must be
unequivocal. “If a request for self-representation is unequivocally
asserted within a reasonable time before commencement of the
trial, and if the assertion is voluntarily made with an appreciation
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of the risks involved, the trial court has no discretion to deny it.”
(People v. Bloom (1989) 48 Cal.3d 1194, 1219 (Bloom).)
Defendant argues that his requests must be deemed unequivocal
because he made them repeatedly. However, repeated equivocal
requests do not become unequivocal because of repetition.
“To protect the right to counsel, a trial court faced with a motion
for self-representation should determine whether the defendant
truly desires self-representation. The court may consider the
defendant’s conduct and other words, including any expression of
ambivalence, in deciding the motion. ‘A motion for selfrepresentation made in passing anger or frustration, an ambivalent
motion, or one made for the purpose of delay or to frustrate the
orderly administration of justice may be denied.’ ([People v.
Marshall (1997) 15 Cal.4th 1,] 23.)” (Witkin, Cal. Criminal Law
(3d ed. 2000) Criminal Trial, § 254, subd. (b), p. 391 (Witkin).)

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In this case there was never an unambivalent request for selfrepresentation. Even when defendant made an actual motion at an
appropriate juncture he expressly announced that his request was
involuntary and made only because of his dissatisfaction with
appointed counsel and his refractory insistence that the trial court
erred in the denial of his many Marsden motions. In this respect
the case is similar to People v. Scott (2001) 91 Cal.App.4th 1197
(Scott I), which upheld denial of such a Faretta request as
equivocal.

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“More importantly, the motion was not unequivocal. [The
defendant] made his Faretta motion immediately after the trial
court denied his Marsden motion, and [the defendant’s] subsequent
comments suggest he made the Faretta motion only because he
wanted to rid himself of appointed counsel. When the trial court
gave [the defendant] a waiver of rights form in response to his
Faretta request, the court said: ‘For the record, let me repeat it.
[A]re you sure you want to represent yourself?’ [The defendant]
replied, ‘Yes. I do judge. I don’t want [appointed defense counsel]
to represent me.’ [The defendant] also said: ‘[I]f I can’t get a
[new] state appointed attorney, then I represent myself,’ and , ‘For
the record, I don’t want this attorney representing me. You the
court is coercing me.’” (Scott I, supra, 91 Cal.App.4th at p. 1205,
fn. omitted.)
We agree with Scott I. Such an assertion is not one “voluntarily
made with an appreciation of the risks involved.” (Bloom, supra,
Cal.3d at p. 1219.) Here defendant refused to comply with the
reasonable direction that he use the court’s Faretta form so that the
court could determine that he understood the responsibilities of
self-representation. He implicitly refused to accept the possibility
that the court would be upheld in the rulings on his Marsden
motions. In insisting that he was improperly being forced to
represent himself, he manifested denial as to the risks of self8

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representation. The trial court could reasonably conclude that in
defendant’s view, he was not subject to those risks: He would not
be “stuck with the consequences” because he was acting under
“coercion.” In these circumstances the trial court acted within its
discretion in denying his equivocal request.
Resp’t’s Lodged Doc. 1 at 10-13.
In Faretta v. California, 422 U.S. 806, 807 (1975), the United States Supreme

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Court held that an accused has a right to conduct his own defense, provided only that he

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voluntarily and intelligently waives his right to counsel. The holding of Faretta is based on “the

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long-standing recognition of a right of self-representation in federal and most state courts, and on

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the language, structure, and spirit of the Sixth Amendment.” McKaskle v. Wiggins, 465 U.S.

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168, 174 (1984).
The Court of Appeal essentially identified the standard established by the

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Supreme Court in Faretta for judging claims concerning the denial of the right to self

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representation with its citation to “People v. Bloom (1989) 48 Cal.3d 1194, 1219.” The Court of

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Appeal found that petitioner never made what could be construed as a voluntary and intelligent

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waiver of the right to counsel because petitioner refused to acknowledge awareness of what

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exactly would be relinquished if petitioner were to proceed pro se nor otherwise demonstrated

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awareness. Petitioner fails to point to anything suggesting the Court of Appeal’s finding amounts

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to an unreasonable application of Faretta. Furthermore, petitioner fails to point to anything

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suggesting the rejection of his right to self-representation claim is based on an unreasonable

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determination of the facts. Because petitioner is precluded from obtaining relief under 28 U.S.C.

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§ 2254(d), his first claim should be rejected.

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B. Denial Of Right To Be Present At Trial And Right To Confrontation
Petitioner asserts comments made by the trial court shortly before trial forced

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petitioner to remove himself from the trial which, in turn, resulted in a violation of his

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Constitutional rights to be present at trial and to confront his accusers. This claim was presented

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to California courts on direct appeal, but it does not appear any court issued a reasoned decision
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with respect to the claim.4

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The California Court of Appeal described the facts underlying petitioner’s second
claim as follows:

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When the matter first come on before the jury panel the court noted
that defendant was in prison garb and asked the jurors not to be
prejudiced or biased against him. “It has nothing to do with this
trial. He can be dressed as a clown, that wouldn’t make him a
funny guy. So I want all of you to assure me that the way that
defendant is dressed will not affect your decision in this case.” The
court then described the charges. As the court was explaining the
role of the jurors and their duty to follow the law it was interrupted,
presumably by some nonverbal conduct of defendant. The
following interchange ensued:

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“THE COURT: [T]here may be interruptions by defendant too, I
don’t want you to-

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“[DEFENDANT]: I’m not going to.

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“THE COURT: I don’t want you to be prejudiced against him
because of his interruptions, basically hasn’t been cooperative, but
has got nothing to do with whether he is guilty or not guilty of
these crimes that are charged against him. I want you to
understand that. If he jumps around and raises hell-

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“[DEFENDANT]: Can I leave please, I don’t want to participate
in this fiasco. I want to leave. My constitutional rights are not
being respected. I do not want to participate in this-

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“THE COURT: He’s right. He doesn’t have to be here either.

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“[DEFENDANT]: Right about that.

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“THE COURT: I told him if he disrupts-

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“[DEFENDANT]: I want to lay on my bunk.

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“THE COURT: I hope that you are listening to me and not to him.
If he disrupts these proceedings so I can’t function anymore, then I
will have to remove him from the courtroom.

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“[DEFENDANT]: You don’t have to remove-I want to go.

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On direct appeal, the California Court of Appeal only considered wether the comments
identified below constitute judicial misconduct. Resp’t’s Lodged Doc. 1 at 16-17. The Court of
Appeal did not address whether the comments resulted in a violation of petitioner’s
Constitutional rights to be present at trial and to confront his accusers.
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“THE COURT: With the admonition that as soon as he decides
not to be disruptive anymore he can come back if he decides not to
be disruptive anymore he can come back if he decides. If he’s
requested that he leave, allow him to do that. Mr Scott, if you
change your mind let the officers know and you can come right
back.

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“[DEFENDANT]: Yes, sir. When you say come right back up
here, yeah, my clown garb, everything.

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“THE COURT: See you on appeal.

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Resp’t’s Lodged Doc. 1 at 8-10.

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There is nothing in the record suggesting that the trial court forced petitioner’s

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removal from any portion of his trial. Petitioner chose to leave on his own. Therefore, there is

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no violation of petitioner’s right to be present at his trial nor his right to confront his accusers.

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The trial court’s “clown” analogy and suggestion that petitioner might “raise hell,” in retrospect,

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may not have been the best choice of words. But, it cannot reasonably be suggested that the

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choice of those words forced petitioner from the courtroom, particularly given that the trial court

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was trying to mitigate the potential damage being caused by the petitioner’s behavior and

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outbursts.

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Furthermore, petitioner has failed to show that rejection of this claim by

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California courts is contrary to, or involves an unreasonable application of clearly established

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federal law as determined by the Supreme Court. Likewise, he has not shown the rejection of his

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claim is based on an unreasonable determination of the facts in light of the evidence presented at

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trial. Therefore, petitioner is precluded from obtaining relief on his second claim by 28 U.S.C. §

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2254(d).

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C. Shackling
Next, petitioner asserts that his being forced to wear leg restraints during trial

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amounted to a violation of his right to due process under the Fourteenth Amendment. This claim

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was presented to California courts on direct appeal. The California Court of Appeal, the last

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court to issue a reasoned opinion with respect to petitioner’s claim, declined to reach the merits
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of the claim because petitioner failed to object to the use of leg restraints at trial.5 Resp’t’s

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Lodged Doc. 1 at 14-15.

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Respondent argues that petitioner’s shackling claim is procedurally defaulted.

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Federal courts will not review claims rejected by state courts if the decision of the state court

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resulting in a denial of the federal claim rests on a state law that is independent of the federal

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question and adequate to support judgment. Coleman v. Thompson, 501 U.S. 722, 729 (1991).

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The denial of petitioner’s “shackling” claim was based on California’s “contemporaneous

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objection” rule which, in this case, is independent of any issue of federal law. Also, the Ninth

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Circuit Court of Appeals has found that a violation of the California’s contemporaneous

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objection rule is “adequate to support judgment” for purposes of determining whether a claim has

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been procedurally defaulted. See Melendez v. Pliler, 288 F.3d 1120, 1125 (2002).

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In light of the above, and because petitioner has not attempted to establish cause

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for his failure to object to his being shackled at trial, and prejudice accruing therefrom, see

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Wainwright v. Sykes, 433 U.S. 72, 90-91 (1971), petitioner’s shackling claim is procedurally

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defaulted.

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D. Jury Instruction Regarding Shackling

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In his fourth claim, petitioner asserts that the trial court’s failure to sua sponte

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inform jurors to disregard the fact that petitioner was shackled violated his right to due process

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under the Fourteenth Amendment.

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Claims of error in state jury instructions are generally a matter of state law and do

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not invoke a Constitutional question unless they amount to a deprivation of due process. Hayes

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v. Woodford , 301 F.3d 1054, 1086 (9th Cir. 2002). A violation of due process occurs if a trial is

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fundamentally unfair. Estelle v. McGuire, 502 U.S. 62, 72-73 (1991). Because the omission of

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The trial court ordered that petitioner be restrained with a “leg brace” during trial. RT
391. However, petitioner insisted that he be restrained with visible chains around his ankles. RT
394-96.
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an instruction is less likely to be prejudicial than a misstatement of the law, a habeas petitioner

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whose claim involves a failure to give a particular instruction bears an especially heavy burden.

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Henderson v. Kibbe, 431 U.S. 145, 155 (1977). Petitioner’s claim of jury instruction error was

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presented to California’s courts on direct appeal. The California Court of Appeal issued the last

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reasoned opinion with respect to the claim.

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The Court of Appeal assumed that failure to instruct jurors that they should

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disregard the fact that petitioner appeared in court wearing physical restraints was error under

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California law. However, the court found any error to be harmless:

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The trial court did instruct that the jury was to disregard
defendant’s prison garb and his disruptive conduct. Implicit in this
was that the derivative need to restrain defendant, which the jury
would likely attribute to defendant’s inmate status and disruptive
conduct, was also to be disregarded. Defendant did not testify, the
case in our view was not closely contested as to guilt, and the error,
if any, in failing to instruct on restraints was not accompanied by
other error. In these circumstances any error was harmless.

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Resp’t’s Lodged Doc. 1 at 15-16.

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After reviewing the record, the court finds that the California Court of Appeal’s

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decision that failure to specifically instruct jurors not to consider the fact that petitioner wore

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physical restraints during trial was harmless is not contrary to, nor does it involve an

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unreasonable application of clearly established federal law as determined by the Supreme Court

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of the United States. Furthermore the decision is not based on an unreasonable determination of

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the facts. Accordingly, petitioner’s claim that his jury was not adequately instructed must be

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rejected.

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E. Sentence
In his fifth claim, petitioner asserts his right to due process under the Fourteenth

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Amendment was violated when the trial court found that two convictions from Arizona for

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robbery could be deemed “strikes” under California’s “Three Strikes Law” resulting in an

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increase of petitioner’s sentence. No California court issued a reasoned opinion with respect to
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this claim.

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Generally speaking, under California’s “three strikes law,” crimes committed in

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other jurisdictions can constitute “strikes”: “[a] defendant whose prior conviction was suffered

4

in another jurisdiction is . . . subject to the same punishment as a person previously convicted of

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an offense involving the same conduct in California.” People v. Myers, 858 P.2d 301, 306 (Cal.

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1993). Petitioner asserts an Arizona robbery cannot constitute a “strike” because the elements of

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robbery in Arizona and California are different.

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Whether the trial court determined correctly that petitioner’s Arizona robberies

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constitute “strikes” under California law is, generally speaking, a question of California law.

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“[I]t is not the province of a federal habeas court to reexamine state-court determinations on

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state-law questions.” Estelle v. McGuire, 502 U.S. 62, 68 (1991). The trial court relied on

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People v. Mumm, 120 Cal. Rptr. 2d 18 (4th Dist. 2002) in finding that Arizona robberies could

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be “strikes” for purposes of California’s “three strikes law.” Neither the determination by the

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trial court that, under California law, the Arizona robberies could be “strikes,” nor the same

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decision by the California Court of Appeal in Mumm, can be reviewed here.

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Whether a finding that Arizona robberies constitute “strikes” in California

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violates a provision of federal law is an appropriate subject for habeas review. In order to

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establish a federal claim, petitioner points only to Jackson v. Virginia, 443 U.S. 307, 319 (1929)

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which stands for the proposition that a conviction cannot stand if, after viewing the evidence in

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the light most favorable to the prosecution, the court finds that no rational trier of fact could have

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found all of the elements of the crime beyond a reasonable doubt. It is not clear how this

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proposition applies here as petitioner does not allege that any finding of fact made by his jury

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was not supported by adequate evidence. Rather, he challenges what is essentially a

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determination as to what constitutes a “strike” under California law. In any case, petitioner has

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not met his burden of demonstrating the California Supreme Court’s rejection of petitioner’s

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“due process” claim concerning his sentence is contrary to, or involves an unreasonable
14

1

application of clearly established federal law as determined by the Supreme Court of the United

2

States or is based on an unreasonable determination of the facts in light of the evidence presented

3

at trial.

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Also, petitioner asserts his Arizona convictions cannot be used to enhance his

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current sentence because a term of his plea agreement with respect to the Arizona convictions

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was that those convictions “could not be used for any purpose.” Petitioner’s assertion that the

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convictions “could not be used for any purpose” does not make sense and petitioner fails to point

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to a copy of the Arizona plea agreement. Accordingly, nothing before the court suggests

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petitioner’s plea agreement acts as a bar to the Arizona robbery convictions being used as

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“strikes” in California.

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For all of theses reasons petitioner’s fifth claim should be rejected.

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F. Ineffective Assistance of Counsel

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Petitioner asserts that he was deprived of his Sixth Amendment right to effective

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assistance of counsel. No California court issued a reasoned decision with respect to this claim.

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The standard for judging ineffective assistance of counsel claims is set forth in Strickland v.

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Washington, 466 U.S. 668 (1984). First, a defendant must show that, considering all the

17

circumstances, counsel’s performance fell below an objective standard of reasonableness.

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Strickland, 466 U.S. at 688. To this end, the defendant must identify the acts or omissions that

19

are alleged not to have been the result of reasonable professional judgment. Id. at 690. The court

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must then determine whether in light of all the circumstances, the identified acts or omissions

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were outside the wide range of professional competent assistance. Id. Second, a defendant must

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affirmatively prove prejudice. Id. at 693. Prejudice is found where “there is a reasonable

23

probability that, but for counsel’s unprofessional errors, the result of the proceeding would have

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been different.” Id. at 694. A reasonable probability is “a probability sufficient to undermine

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confidence in the outcome.” Id.

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\\\\\
15

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Essentially, petitioner asserts that none of the attorneys that represented him

2

conducted any pretrial investigation. Defense counsel has a “duty to make reasonable

3

investigations or to make a reasonable decision that makes particular investigations

4

unnecessary.” Strickland, 466 U.S. at 691. Here, petitioner fails to point to any evidence

5

indicating that his attorneys failed to conduct any pretrial investigation.6 More importantly, he

6

fails to point to anything specific that any of his attorneys should have and failed to investigate.

7

Petitioner asserts that there were a number of witnesses who observed “the”

8

altercation and could have testified on behalf of petitioner. However, petitioner fails to indicate

9

whether he is referring to the incident with Officer Gonzales or Cherry. Additionally, petitioner

10

fails to point to the names of such witnesses or the content of their testimony. Therefore, he has

11

not established prejudice by their not being called to testify.

12

Because petitioner has failed to demonstrate the actions of his trial counsel

13

prejudiced his case in anyway, or that trial counsel’s performance was even objectively

14

unreasonable, his ineffective assistance of counsel claim must be rejected. Furthermore, the

15

California Supreme Court’s rejection of petitioner’s ineffective assistance of counsel claim is not

16

contrary to, nor it does not involve an unreasonable application of clearly established federal law

17

as determined by the Supreme Court of the United States. Finally, the decision is not based on

18

an unreasonable determination of the facts. Therefore, as with most of petitioner’s claims, relief

19

is barred by 28 U.S.C. § 2254(a).

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////

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6

Petitioner points to two pieces of evidence in support of his assertion that his attorneys
failed to conduct any pretrial investigation. First, petitioner points to a hearing, RT 202-205, in
which trial counsel at that time admitted that the investigation up until that point had been
lacking. But, this does not provide support for the assertion that no investigation was done.
Second, petitioner points to his own “Exhibit A–Declaration of Curtis Scott.” “Exhibit A” is
comprised of statements made by petitioner and other potential exhibits including reports from
officers present during petitioner’s altercation with Officer Gonzales. Petitioner does not
specifically explain how “Exhibit A” supports his claim that trial counsel failed to conduct
adequate investigation and such is not otherwise apparent after review of the exhibit.
16

1

IV. Conclusion

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3

For all of the foregoing reasons, the court will recommend that petitioner’s
application for writ of habeas corpus be denied.

4
5

In accordance with the above, IT IS HEREBY RECOMMENDED that
petitioner’s application for a writ of habeas corpus be denied.

6

These findings and recommendations are submitted to the United States District

7

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

8

one days after being served with these findings and recommendations, any party may file written

9

objections with the court and serve a copy on all parties. Such a document should be captioned

10

“Objections to Magistrate Judge’s Findings and Recommendations.” In his objections petitioner

11

may address whether a certificate of appealability should issue in the event he files an appeal of

12

the judgment in this case. See Rule 11, Federal Rules Governing Section 2254 Cases (the district

13

court must issue or deny a certificate of appealability when it enters a final order adverse to the

14

applicant). Any reply to the objections shall be served and filed within fourteen days after

15

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

16

specified time may waive the right to appeal the District Court’s order. Martinez v. Ylst, 951

17

F.2d 1153 (9th Cir. 1991).

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Dated: February 15, 2012

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_____________________________________
CAROLYN K. DELANEY
UNITED STATES MAGISTRATE JUDGE

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