Williams v. Hedgpeth

Filing 23

FINDINGS and RECOMMENDATIONS signed by Magistrate Judge Craig M. Kellison on 11/20/09 RECOMMENDING that petitioner's 15 requests for an evidentiary hearing be denied; and petitioner's 10 amended hc petition be denied. Referred to Judge Garland E. Burrell, Jr.; Objections to F&R due w/in 20 days.(Yin, K)

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 vs. A. HEDGPETH, Respondent. / Petitioner, a state prisoner proceeding pro se, brings this petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. Pending before the court are petitioner's amended petition for a writ of habeas corpus (Doc. 10), respondent's answer (Doc. 16), and petitioner's reply (Doc. 22). Also before the court are petitioner's motions for an evidentiary hearing (Docs. 15 and 22). /// /// /// /// /// 1 JAMES EDWARD WILLIAMS, JR., Petitioner, FINDINGS AND RECOMMENDATIONS No. CIV S-09-0721-GEB-CMK-P IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF CALIFORNIA

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I. BACKGROUND Following a jury trial, petitioner was convicted of robbery. The jury found true the allegation that petitioner personally used a firearm during the commission of the crime. Petitioner was sentenced on October 8, 2004 to the upper term of five years for the robbery, plus an enhancement of 10 years for use of a firearm. Petitioner received the upper-term sentence based on the trial court's finding that petitioner had numerous prior convictions as an adult. The California Court of Appeal affirmed the conviction and sentence in a decision issued on February 21, 2006. The appellate court characterized the sole issue on direct appeal as follows: "On appeal, defendant argues that his upper term consecutive sentence is unconstitutional because he never had a jury trial with respect to the facts used to impose it. . . ." The California Supreme Court denied direct review on May 10, 2006.1 Petitioner did not seek certiorari in the United States Supreme Court. On March 14, 2007, petitioner filed a habeas corpus petition in the Sacramento County Superior Court. The state court denied habeas relief in a decision issued on May 10, 2007. In particular, the court denied some claims as barred by the rule that claims which could have been or were actually raised on direct appeal cannot be relitigated in a post-conviction action. The court identified the following claims in this category: "claims about the testimony of the eyewitnesses" and "complaints about counsel" relating to counsel's decision to argue that a witness was honestly mistaken in identification of petitioner and counsel's presentation of a "Trombetta" motion. The state court also appears to have addressed an additional claim of ineffective assistance of counsel on the merits by concluding that counsel was not ineffective because "[c]ounsel could not control the police collection of evidence and attack their actions regarding a videotape by motion." The court also denied a Blakely claim on the merits by The California Supreme Court's denial of direct review was without prejudice to any relief which might be available after the United States Supreme Court decided the effect of Blakely v. Washington, 542 U.S. 296 (2004), on California Law. Otherwise, the California Supreme Court's denial was not accompanied by any citation or analysis. 2
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concluding that the trial court "properly found that defendant should be sentenced to the upper term because of prior convictions." The court added that the trial court's reference to probation adjustment was harmless error. Finally, the court rejected petitioner's claim that the firearm enhancement was inapplicable to the facts of his case. Before proceeding to the next higher state court on post-conviction review, petitioner filed a federal habeas petition in this court under case no. CIV-S-07-1101-LEW-GGHP. In this petition, petitioner raised only the Blakely claim. Petitioner sought a stay-andabeyance order to return to state court to exhaust the following additional claims: (1) ineffective assistance of trial counsel; (2) use of perjured testimony; (3) failure to disclose exculpatory evidence; and (4) ineffective assistance of appellate counsel. The court denied the request for a stay-and-abeyance motion and dismissed the petition without prejudice as unexhausted. Petitioner then filed a habeas corpus petition in the California Supreme Court on July 22, 2008. That petition was denied without comment on January 14, 2009. The instant federal petition was filed on March 16, 2009.

II. STANDARDS OF REVIEW Because this action was filed after April 26, 1996, the provisions of the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA") are presumptively applicable. See Lindh v. Murphy, 521 U.S. 320, 336 (1997); Calderon v. United States Dist. Ct. (Beeler), 128 F.3d 1283, 1287 (9th Cir. 1997), cert. denied, 522 U.S. 1099 (1998). The AEDPA does not, however, apply in all circumstances. When it is clear that a state court has not reached the merits of a petitioner's claim, because it was not raised in state court or because the court denied it on procedural grounds, the AEDPA deference scheme does not apply and a federal habeas court must review the claim de novo. See Pirtle v. Morgan, 313 F.3d 1160 (9th Cir. 2002) (holding that the AEDPA did not apply where Washington Supreme Court refused to reach petitioner's claim under its "re-litigation rule"); see also Killian v. Poole, 282 F.3d 1204, 1208 3

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(9th Cir. 2002) (holding that, where state court denied petitioner an evidentiary hearing on perjury claim, AEDPA did not apply because evidence of the perjury was adduced only at the evidentiary hearing in federal court); Appel v. Horn, 250 F.3d 203, 210 (3d Cir.2001) (reviewing petition de novo where state court had issued a ruling on the merits of a related claim, but not the claim alleged by petitioner). When the state court does not reach the merits of a claim, "concerns about comity and federalism . . . do not exist." Pirtle, 313 F. 3d at 1167. Where AEDPA is applicable, federal habeas relief under 28 U.S.C. § 2254(d) is not available for any claim decided on the merits in state court proceedings unless the state court's adjudication of the claim: (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 (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. Thus, under § 2254(d), federal habeas relief is available only where the state court's decision is "contrary to" or represents an "unreasonable application of" clearly established law. Under both standards, "clearly established law" means those holdings of the United States Supreme Court as of the time of the relevant state court decision. See Carey v. Musladin, 549 U.S. 70, 74 (2006) (citing Williams, 529 U.S. at 412) . "What matters are the holdings of the Supreme Court, not the holdings of lower federal courts." Plumlee v. Masto, 512 F.3d 1204 (9th Cir. 2008) (en banc). Supreme Court precedent is not clearly established law, and therefore federal habeas relief is unavailable, unless it "squarely addresses" an issue. See Moses v. Payne, 555 F.3d 742, 753-54 (9th Cir. 2009) (citing Wright v. Van Patten, 552 U.S. 120, 28 S. Ct. 743, 746 (2008)). For federal law to be clearly established, the Supreme Court must provide a "categorical answer" to the question before the state court. See id.; see also Carey, 549 U.S. at 76-77 (holding that a state court's decision that a defendant was not prejudiced by spectators' conduct at trial was not contrary to, or an unreasonable application of, the Supreme Court's test for determining prejudice 4

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created by state conduct at trial because the Court had never applied the test to spectators' conduct). Circuit court precedent may not be used to fill open questions in the Supreme Court's holdings. See Carey, 549 U.S. at 74. In Williams v. Taylor, 529 U.S. 362 (2000) (O'Connor, J., concurring, garnering a majority of the Court), the United States Supreme Court explained these different standards. A state court decision is "contrary to" Supreme Court precedent if it is opposite to that reached by the Supreme Court on the same question of law, or if the state court decides the case differently than the Supreme Court has on a set of materially indistinguishable facts. See id. at 405. A state court decision is also "contrary to" established law if it applies a rule which contradicts the governing law set forth in Supreme Court cases. See id. In sum, the petitioner must demonstrate that Supreme Court precedent requires a contrary outcome because the state court applied the wrong legal rules. Thus, a state court decision applying the correct legal rule from Supreme Court cases to the facts of a particular case is not reviewed under the "contrary to" standard. See id. at 406. If a state court decision is "contrary to" clearly established law, it is reviewed to determine first whether it resulted in constitutional error. See Benn v. Lambert, 283 F.3d 1040, 1052 n.6 (9th Cir. 2002). If so, the next question is whether such error was structural, in which case federal habeas relief is warranted. See id. If the error was not structural, the final question is whether the error had a substantial and injurious effect on the verdict, or was harmless. See id. State court decisions are reviewed under the far more deferential "unreasonable application of" standard where it identifies the correct legal rule from Supreme Court cases, but unreasonably applies the rule to the facts of a particular case. See Wiggins v. Smith, 539 U.S. 510, 520 (2003). While declining to rule on the issue, the Supreme Court in Williams, suggested that federal habeas relief may be available under this standard where the state court either unreasonably extends a legal principle to a new context where it should not apply, or unreasonably refuses to extend that principle to a new context where it should apply. See Williams, 529 U.S. at 408-09. The Supreme Court has, however, made it clear that a state court 5

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decision is not an "unreasonable application of" controlling law simply because it is an erroneous or incorrect application of federal law. See id. at 410; see also Lockyer v. Andrade, 538 U.S. 63, 75-76 (2003). An "unreasonable application of" controlling law cannot necessarily be found even where the federal habeas court concludes that the state court decision is clearly erroneous. See Lockyer, 538 U.S. at 75-76. This is because "[t]he gloss of clear error fails to give proper deference to state courts by conflating error (even clear error) with unreasonableness." Id. at 75. As with state court decisions which are "contrary to" established federal law, where a state court decision is an "unreasonable application of" controlling law, federal habeas relief is nonetheless unavailable if the error was non-structural and harmless. See Benn, 283 F.3d at 1052 n.6. The "unreasonable application of" standard also applies where the state court denies a claim without providing any reasoning whatsoever. See Himes v. Thompson, 336 F.3d 848, 853 (9th Cir. 2003); Delgado v. Lewis, 233 F.3d 976, 982 (9th Cir. 2000). Such decisions are considered adjudications on the merits and are, therefore, entitled to deference under the AEDPA. See Green v. Lambert, 288 F.3d 1081 1089 (9th Cir. 2002); Delgado, 233 F.3d at 982. The federal habeas court assumes that state court applied the correct law and analyzes whether the state court's summary denial was based on an objectively unreasonable application of that law. See Himes, 336 F.3d at 853; Delgado, 233 F.3d at 982.

III. DISCUSSION In his petition, petitioner raises the following four claims: (1) the prosecution's witness, Nancy Waraich, offered perjured testimony; (2) trial counsel was ineffective with respect to handling of Ms. Waraich's testmony; (3) the prosecution suppressed exculpatory evidence; and (4) imposition of the upper-term sentence violated Blakely. Respondent concedes that all of petitioner's claims are exhausted, but argues that claims 1, 2, and 3 are untimely and, /// /// 6

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as to all claims, that petitioner is not entitled to relief on the merits.2 Respondent also argues that petitioner is not entitled to an evidentiary hearing on any claim. A. Statute of Limitations (Claims 1, 2, and 3) Federal habeas corpus petitions must be filed within one year from the later of: (1) the date the state court judgment became final; (2) the date on which an impediment to filing created by state action is removed; (3) the date on which a constitutional right is newlyrecognized and made retroactive on collateral review; or (4) the date on which the factual predicate of the claim could have been discovered through the exercise of due diligence. See 28 U.S.C. § 2244(d). Typically, the statute of limitations will begin to run when the state court judgment becomes final by the conclusion of direct review or expiration of the time to seek direct review. See 28 U.S.C. § 2244(d)(1). Where a petition for review by the California Supreme Court is filed and no petition for certiorari is filed in the United States Supreme Court, the one-year limitations period begins running the day after expiration of the 90-day time within which to seek review by the United States Supreme Court. See Patterson v. Stewart, 251 F.3d 1243, 1246 (9th Cir. 2001). Where a petition for writ of certiorari is filed in the United States Supreme Court, the one-year limitations period begins to run the day after certiorari is denied or the Court issued a merits decision. See Wixom v. Washington, 264 F.3d 894, 897 (9th Cir. 2001). Where no petition for review by the California Supreme Court is filed, the conviction becomes final 40 days following the Court of Appeal's decision, and the limitations period begins running the following day. See Smith v. Duncan, 297 F.3d 809 (9th Cir. 2002). If no appeal is filed in the Court of Appeal, the conviction becomes final 60 days after conclusion of proceedings in the state trial court, and the limitations period begins running the following day. If the conviction became final before April 24, 1996 ­ the effective date of the statute of limitations ­ the one-year period begins to run the

2

Respondent does not argue that petitioner's Blakely claim is untimely. 7

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day after the effective date, or April 25, 1996. See Miles v. Prunty, 187 F.3d 1104, 1105 (9th Cir. 1999). The limitations period is tolled, however, for the time a properly filed application for post-conviction relief is pending in the state court. See 28 U.S.C. § 2244(d)(2). To be "properly filed," the application must be authorized by, and in compliance with, state law. See Artuz v. Bennett, 531 U.S. 4 (2000); see also Allen v. Siebert, 128 S.Ct. 2 (2007); Pace v. DiGuglielmo, 544 U.S. 408 (2005) (holding that, regardless of whether there are exceptions to a state's timeliness bar, time limits for filing a state post-conviction petition are filing conditions and the failure to comply with those time limits precludes a finding that the state petition is properly filed). A state court application for post-conviction relief is "pending"during all the time the petitioner is attempting, through proper use of state court procedures, to present his claims. See Nino v. Galaza, 183 F.3d 1003, 1006 (9th Cir. 1999). It is not, however, considered "pending" after the state post-conviction process is concluded. See Lawrence v. Florida, 549 U.S. 327 (2007) (holding that federal habeas petition not tolled for time during which certiorari petition to the Supreme Court was pending). Where the petitioner unreasonably delays between state court applications, however, there is no tolling for that period of time. See Carey v. Saffold, 536 U.S. 214 (2002). If the state court does not explicitly deny a post-conviction application as untimely, the federal court must independently determine whether there was undue delay. See id. at 226-27. In this case, petitioner did not file a petition for a writ of certiorari in the United States Supreme Court. Therefore, his conviction became final on August 8, 2006 (90 days after the California Supreme Court denied direct review on May 10, 2006). The one-year limitations period began to run the following day ­ August 9, 2006 ­ and, absent tolling, expired on August 9, 2007. Respondent concedes that petitioner is entitled to statutory tolling for the 58 days between the filing of petitioner's first post-conviction action in state court on March 14, 2007, and the denial of that action on May 10, 2007. The court agrees that petitioner is not entitled to 8

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any tolling for the time his prior federal habeas action was pending in this court. With allowable statutory tolling, the limitations period expired on October 6, 2007.3 Because this case was filed in 2009, the petition is untimely.4 B. Imposition of Upper-Term Sentence (Claim 4) Petitioner argues that imposition of the upper-term sentence violated Blakely.5 This claim was addressed by the state court before the United States Supreme Court decided in Cunningham v. California, 549 U.S. 270 (2007), that California's sentencing scheme under the former determinate sentencing law was unconstitutional because it allowed imposition of upperterm sentenced based on facts found by a judge and not a jury. However, the Court continued to recognize that a sentence may be enhanced based on prior convictions and that the fact of the prior convictions need not be determined by a jury. This exception was originally articulated in Apprendi v. New Jersey, 530 U.S. 466 (2000), and was present in all its progeny, including Blakely and Cunningham. In this case, petitioner was sentenced to the upper term for the robber offense because the trial court concluded that he had numerous prior convictions as an adult.6 /// /// /// /// Petitioner is not entitled to tolling for the time his second post-conviction petition was pending in the California Supreme Court because it was filed after the one-year limitations period ended.
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Petitioner does not address respondent's timeliness argument.

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Petitioner does not challenge imposition of the firearm enhancement, nor could he because the jury, not the judge, found true the special allegation underlying this enhancement. To the extent petitioner argues that the trial court erred in imposing consecutive sentences, that argument has no merit. In Oregon v. Ice, the Supreme Court held that the rule of Apprendi and its progeny does not prohibit states from assigning to judges, rather than juries, the task of finding facts necessary to impose consecutive sentences for multiple offenses. See 129 S.Ct. 711, 718 (2009). 9
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C.

Evidentiary Hearing Petitioner has requested that the court conduct an evidentiary hearing "based on

the Sacramento Police Department and the D.A.'s Office failure to take into evidence the surveillance tape of a reported crime . . .[o]r to make aware the existence of any such evidence until the tape was destroyed." An evidentiary hearing is required if: (1) the petitioner's allegations would, if true, entitle the petitioner to relief; and (2) the state court has not, after a full and fair hearing, reliably found the facts. See Jones v. Wood, 114 F.3d 1002, 1010 (9th Cir. 1997). Otherwise, whether to hold an evidentiary hearing is within the discretion of the court. See Townsend v. Smith, 372 U.S. 293, 313, 318 (1963). An evidentiary hearing is not appropriate where there are no disputed material facts or where the claims present purely legal questions. See Harris v. Pulley, 885 F.2d 1354, 1378 (9th Cir. 1988). The court agrees with respondent that an evidentiary hearing is not warranted in this case. As discussed above, claims 1, 2, and 3 are untimely (indeed, the entire petition is untimely) and it is clear from the existing record that petitioner is not entitled to relief on claim 4. Thus, there either are no disputed facts (claim 4) or the claims can be resolved as a matter of law (claims 1, 2, and 3). /// /// /// /// /// /// /// /// /// /// 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 DATED: November 20, 2009 denied. denied; and 2.

IV. CONCLUSION Based on the foregoing, the undersigned recommends that: 1. Petitioner's requests for an evidentiary hearing (Docs. 15 and 22) be

Petitioner's amended petition for a writ of habeas corpus (Doc. 10) be

These findings and recommendations are submitted to the United States District Judge assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within 20 days after being served with these findings and recommendations, any party may file written objections with the court. The document should be captioned "Objections to Magistrate Judge's Findings and Recommendations." Failure to file objections within the specified time may waive the right to appeal. See Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991).

______________________________________ CRAIG M. KELLISON UNITED STATES MAGISTRATE JUDGE

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