Roberson v. People of the State of California

Filing 22

ORDER signed by Senior Judge James K. Singleton on 8/2/2012 DENYING the 11 First Amended Petition for Writ of Habeas Corpus; DECLINING to issue a Certificate of Appealability; DIRECTING the Clerk of Court to enter judgment accordingly. CASE CLOSED. (Michel, G)

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF CALIFORNIA
CLARENCE ROBERSON,
No. 2:11-cv-00386-JKS
Petitioner,
MEMORANDUM DECISION
vs.
TIM VIRGA, Warden, California State
Prison, Sacramento,
Respondent.

Clarence Roberson, a state prisoner appearing pro se, filed a Petition for a Writ of Habeas
Corpus under 28 U.S.C. § 2254. Roberson is currently in the custody of the California
Department of Corrections and Rehabilitation, incarcerated at the California State Prison,
Sacramento. Respondent has answered, and Roberson has replied.
I. BACKGROUND/PRIOR PROCEEDINGS
Following a jury trial, in November 2008 Roberson was convicted in the Sacramento
County Superior Court of assault by force likely to produce great bodily injury (Cal. Penal Code
§ 4501), with two prior strike convictions (Cal. Penal Code § 667(b)-(i)). The trial court
sentenced Roberson to an indeterminate prison term of twenty-five years to life. The California
Court of Appeal affirmed Roberson’s conviction and sentence in an unpublished decision,1 and
the California Supreme Court denied review on October 27, 2010. Roberson timely filed his
Petition dated November 16, 2010, in this Court on February 11, 2011.

1

People v. Roberson, No. C060546, 2010 WL 2806257 (Cal. Ct. App. July 19, 2010).

The factual underpinning of Roberson’s conviction as recited by the California Court of
Appeal:
About 1:30 p.m. on January 7, 2006, California State Prison Correctional
Officer Juan Cantu saw, from 30 yards away, two inmates, David Sarente and
defendant, push another inmate, Michael Rhinehart, to the ground and kick him. The
kicks were to the upper torso and head. Rhinehart appeared to be unconscious.
Officer Cantu ordered Sarente and defendant to stop and to move away from
Rhinehart.
Correctional Officer Michael Key also witnessed the assault. Officer Key’s
attention was drawn to the area when, 10 to 15 yards away, several inmates quickly
dispersed. Officer Key saw Rhinehart’s motionless body on the ground. Defendant
and Sarente were kicking Rhinehart above the waist. All inmates were ordered to get
down on the ground.
Correctional Officer Alice Link-Lopez responded to the area and saw a group
of inmates on the ground. Rhinehart was bleeding from his mouth and was
unresponsive, appearing to be unconscious. Rhinehart was transported on a gurney
to the medical clinic, where he regained consciousness. He was slightly confused
and disoriented. He suffered lacerations on his lip and chin and received stitches to
his lip. He also had abrasions on his neck and arm.
At trial, Rhinehart was called by the defense to testify. He was in prison for
murder. He claimed that he and [Roberson] had been friendly. Rhinehart grew up
with Sarente’s father. Rhinehart claimed that on the day of the incident, he threatened
to stab [Roberson]. When they approached one another, Rhinehart landed on the
ground. Rhinehart denied that either [Roberson] or Sarente knocked him down.
Rhinehart denied that he had been knocked out or kicked. He claimed he was on the
ground with his eyes closed and was resting. He denied that [Roberson] was at fault.
Rhinehart acknowledged that [Roberson] may have punched him. Rhinehart would
not “testify to that in court.”
Sarente testified and denied having been involved in the incident. Sarente
denied seeing [Roberson] kick Rhinehart.
[Roberson] testified. He claimed that Rhinehart called him over and threw
two punches. [Roberson] blocked the second punch and then punched Rhinehart in
the mouth, causing Rhinehart to fall backwards to the ground. [Roberson] denied
that he or Sarente kicked Rhinehart.
Defense investigator Andrew Saucedo was called to testify in rebuttal. He
interviewed Rhinehart on June 13, 2008. Rhinehart claimed that he had been hit
from behind and did not know who had knocked him out. Rhinehart also claimed he
had been kicked but did not know who had kicked him.

2

A district attorney investigator also interviewed Rhinehart. Rhinehart stated
that inmates will not testify against each other after a fight.2
II. GROUNDS RAISED/DEFENSES
In his Amended Petition, Roberson raises four grounds: (1) the trial court failed to
exercise its independent judgment; (2) there is insufficient evidence to support the conviction; (3)
the trial court improperly denied a motion for a new trial in refusing to re-weigh the evidence;
and (4) the trial court failed to investigate Roberson’s competence. Respondent does not assert
any affirmative defenses.3
III. STANDARD OF REVIEW
Under the Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”), 28 U.S.C.
§ 2254(d), this Court cannot grant relief unless the decision of the state court was “contrary to, or
involved an unreasonable application of, clearly established Federal law, as determined by the
Supreme Court of the United States” at the time the state court renders its decision or “was based
on an unreasonable determination of the facts in light of the evidence presented in the State court
proceeding.”4 The Supreme Court has explained that “clearly established Federal law” in
§ 2254(d)(1) “refers to the holdings, as opposed to the dicta, of [the Supreme Court] as of the
time of the relevant state-court decision.”5 The holding must also be intended to be binding upon
the states; that is, the decision must be based upon constitutional grounds, not on the supervisory

2

Id. at *1-2.

3

See Rules Governing Section 2254 Cases in the U.S. Dist. Courts, Rule 5(b) (2011).

4

28 U.S.C. § 2254(d); Williams v. Taylor, 529 U.S. 362, 402-06 (2000); see also Lockyer
v. Andrade, 538 U.S. 63, 70-75 (2003) (explaining this standard).
5

Williams, 529 U.S. at 412 (alteration added).
3

power of the Supreme Court over federal courts.6 Thus, where holdings of the Supreme Court
regarding the issue presented on habeas review are lacking, “it cannot be said that the state court
‘unreasonabl[y] appli[ed] clearly established Federal law.’”7 When a claim falls under the
“unreasonable application” prong, a state court’s application of Supreme Court precedent must
be “objectively unreasonable,” not just “incorrect or erroneous.”8 The Supreme Court has made
clear that the objectively unreasonable standard is “a substantially higher threshold” than simply
believing that the state-court determination was incorrect.9 “[A]bsent a specific constitutional
violation, federal habeas corpus review of trial error is limited to whether the error ‘so infected
the trial with unfairness as to make the resulting conviction a denial of due process.’”10 In a
federal habeas proceeding, the standard under which this Court must assess the prejudicial
impact of constitutional error in a state court criminal trial is whether the error had a substantial
and injurious effect or influence in determining the outcome.11 Because state court judgments of

6

Early v. Packer, 537 U.S. 3, 10 (2002).

7

Carey v. Musladin, 549 U.S. 70, 77 (2006) (alterations in original) (citation omitted);
see also Wright v. Van Patten, 552 U.S. 120, 126 (2008) (per curiam); Kessee v. MendozaPowers, 574 F.3d 675, 678-79 (9th Cir. 2009); Moses v. Payne, 555 F.3d 742, 753-54 (9th Cir.
2009) (explaining the difference between principles enunciated by the Supreme Court that are
directly applicable to the case and principles that must be modified in order to be applied to the
case; the former are clearly established precedent for purposes of § 2254(d)(1), the latter are not).
8

Wiggins v. Smith, 539 U.S. 510, 520-21 (2003) (internal quotation marks and citations
omitted).
9

Schriro v. Landrigan, 550 U.S. 465, 473 (2007) (citing Williams, 529 U.S. at 410).

10

Lewis v. Jeffers, 497 U.S. 764, 780 (1990) (quoting Donnelly v. DeChristoforo, 416
U.S. 637, 642, 643 (1974)).
11

Fry v. Pliler, 551 U.S. 112, 121 (2007) (adopting the standard set forth in Brecht v.
Abrahamson, 507 U.S. 619, 637-38 (1993)).
4

conviction and sentence carry a presumption of finality and legality, the petitioner has the burden
of showing by a preponderance of the evidence that he or she merits habeas relief.12
The Supreme Court recently underscored the magnitude of the deference required:
As amended by AEDPA, § 2254(d) stops short of imposing a complete bar on federal
court relitigation of claims already rejected in state proceedings. Cf. Felker v.
Turpin, 518 U.S. 651, 664, 116 S.Ct. 2333, 135 L.Ed.2d 827 (1996) (discussing
AEDPA’s “modified res judicata rule” under § 2244). It preserves authority to issue
the writ in cases where there is no possibility fairminded jurists could disagree that
the state court’s decision conflicts with this Court’s precedents. It goes no farther.
Section 2254(d) reflects the view that habeas corpus is a “guard against extreme
malfunctions in the state criminal justice systems,” not a substitute for ordinary error
correction through appeal. Jackson v. Virginia, 443 U.S. 307, 332, n.5, 99 S.Ct.
2781, 61 L.Ed.2d 560 (1979) (Stevens, J., concurring in judgment). As a condition
for obtaining habeas corpus from a federal court, a state prisoner must show that the
state court’s ruling on the claim being presented in federal court was so lacking in
justification that there was an error well understood and comprehended in existing
law beyond any possibility for fairminded disagreement.13
In applying this standard, this Court reviews the “last reasoned decision” by the state
court.14 State appellate court decisions that summarily affirm a lower court’s opinion without
explanation are presumed to have adopted the reasoning of the lower court.15 This Court gives

12

Silva v. Woodford, 279 F.3d 825, 835 (9th Cir. 2002) (citations omitted); see Wood v.
Bartholomew, 516 U.S. 1, 8 (1995) (per curiam) (stating that a federal court cannot grant “habeas
relief on the basis of little more than speculation with slight support”).
13

Harrington v. Richter, 131 S. Ct. 770, 786-87 (2011) (emphasis added).

14

Robinson v. Ignacio, 360 F.3d 1044, 1055 (9th Cir. 2004) (citing Avila v. Galaza, 297
F.3d 911, 918 (9th Cir. 2002)); cf. Ylst v. Nunnemaker, 501 U.S. 797, 804 (1991) (explaining
“how federal courts in habeas proceedings are to determine whether an unexplained order . . .
rests primarily on federal law,” and noting that federal courts must start by examining “the last
reasoned opinion on the claim . . . . ”).
15

Ylst, 501 U.S. at 802-03 (“Where there has been one reasoned state judgment rejecting
a federal claim, later unexplained orders upholding that judgment or rejecting the same claim rest
upon the same ground.”); cf. Richter, 131 S. Ct. at 784 (“As every Court of Appeals to consider
the issue has recognized, determining whether a states court’s decision resulted from an
unreasonable legal or factual conclusion does not require that there be an opinion from the state
(continued...)
5

the presumed decision of the state court the same AEDPA deference that it would give a
reasoned decision of the state court.16
IV. DISCUSSION
Ground 1: Failure to Exercise Independent Judgment; Ground 2: Insufficient Evidence;
Ground 3: Denial of Motion for a New Trial
Although stated as separate grounds, all three grounds are based upon a common set of
facts and arguments: insufficiency of the evidence. Roberson presented these grounds in slightly
different form to the California Court of Appeal. The California Court of Appeal rejected
Roberson’s arguments presented to it, holding:
DISCUSSION
I
[Roberson] contends the trial court erroneously denied his new trial motion,
violating his right to due process. He claims that the trial court applied the wrong
standard and that the verdict was contrary to the evidence. We reject [Roberson’s]
contention.
Under section 1181, subdivision (6), a court may grant a new trial “[w]hen
the verdict or finding is contrary to law or evidence . . . .” “In ruling on a motion for
a new trial based on the assertion that the verdict is contrary to the law or evidence,
the trial judge must independently reweigh the evidence.” (People v. McClellan
(1980) 107 Cal.App.3d 297, 301.) The trial court, in considering a new trial motion,
“‘should consider the probative force of the evidence and satisfy itself that the
evidence as a whole is sufficient to sustain the verdict . . . . This does not mean,
however, that the court should disregard the verdict . . . but instead that it should
consider the proper weight to be accorded to the evidence and then decide whether
or not, in its opinion, there is sufficient credible evidence to support the verdict . . . .’
[Citation.]” (People v. Taylor (1993) 19 Cal.App.4th 836, 843.) On appeal, we must
determine whether the trial court abused its discretion. (People v. Davis (1995) 10
Cal.4th 463, 524.)

15

(...continued)
court explaining the state court’s reasoning.”).
16

See Richter, 131 S. Ct. at 784-85 (rejecting the argument that a summary disposition
was not entitled to § 2254(d) deference).
6

[Roberson] filed a motion for a new trial, arguing that the verdict was
contrary to the law or the weight of the evidence. He argued that the testimony of the
prison guards was “ambiguous or lacking in critical respects.” He asserted that
Officer Cantu could not see [Roberson’s] feet and only inferred that [Roberson] was
kicking the victim. [Roberson] claimed the offense was at most a simple assault.
In opposition, the prosecutor argued that [Roberson’s] motion lacked merit
and that the jury had rejected [Roberson’s] self-defense theory. The prosecutor
asserted that the officers’ testimony clearly established that [Roberson] had kicked
the victim at least once and that Officer Cantu saw [Roberson] kick the victim in the
face. The medical officer’s testimony established that the victim had received
stitches for his facial lacerations and that he had been unconscious and disoriented.
The prosecutor claimed that [Roberson] failed to meet his burden and that a
request for a new trial is looked upon with disfavor. Citing several cases, the
prosecutor claimed that an abuse of discretion standard applies to a new trial motion
but also claimed “the standard is, from the evidence, including reasonable inferences,
is there substantial evidence of the existence of each element beyond a reasonable
doubt.”
The prosecutor then set forth the law on new trial motions, noting that the
court was not bound by the jury’s resolution of conflicts in the evidence or
inferences, was required to independently weigh the evidence, and while not
disregarding the verdict, was required to satisfy itself that the evidence was sufficient
to support the jury’s verdict.
At the hearing, defense counsel argued that [Roberson] had used his fist, at
most, to strike Rhinehart, making the offense a misdemeanor battery. The court
commented that the officers’ testimony showed [Roberson] had kicked Rhinehart,
not punched him. Defense counsel claimed Rhinehart’s physical injuries were not
consistent with being kicked, noting that he had no “bruises, marks, [or] broken
bones” and there was no blood on the shoes or pants of either [Roberson] or Sarente.
The prosecutor stated that [Roberson’s] first trial resulted in a mistrial and the
jury had been instructed on self-defense as well as the lesser offense. The prosecutor
noted that during the same trial, Sarente was convicted of the lesser offense, a
misdemeanor assault (§ 240), but the jury had likewise rejected Sarente’s claim of
self-defense and defense of others.
The prosecutor claimed that Officer Key had seen kicking to the torso, but his
vision had been blocked by [Roberson] and he had not noticed the incident until
Rhinehart was already on the ground, while Officer Cantu had seen [Roberson] and
Sarente push Rhinehart to the ground and [Roberson] then kick Rhinehart in the
facial area. The prosecutor argued that felony force had been used because Rhinehart
had been knocked unconscious, went to the hospital, and had received stitches.
Defense counsel commented that had the offense occurred on the street, the
prosecutor would have charged a misdemeanor assault. The court rejected defense
counsel’s claim that the conduct of either punching or kicking a person to
unconsciousness would normally be a misdemeanor.
7

The trial court than stated: “The jury may have decided another way and then
found that like they did with Mr. Sarente, but the jury at least in this case hearing
what we all heard reached a verdict that I do think was supported by the evidence.
Whether I might have reached the same verdict, whether you might have, whether
another jury might have is really irrelevant. What I need to consider is whether the
verdict that they did reach was contrary to law or fact, and I don’t feel that it was
based on what I heard and what the jury heard. I think that their verdict was
supported by the evidence. As for the reasons stated by the People’s opposition as
well as argument, and I think reasons that are clear within the transcript of the
proceedings. The jury has the right to credit the testimony of some witnesses, and
in this case they obviously credited the testimony of the correctional officers and to
discredit the witness of others. And, again, apparently in this case, they chose to do
just that. And it’s well within the province of the jury to make these decisions. And,
again, whether or not others might agree or disagree, the fact that they chose to credit
some witnesses and discredit others really is not in my mind a sound basis for
invalidating their verdict.
“So the motion for a new trial is denied. I respectfully disagree with the
argument that the verdict was not supported by the facts or the law. To the extent
that I have discretion to reduce the charge after the verdict, and I agree that I do, I
decline to do so. So the verdict will stand.”
[Roberson] was charged with assault by means of force likely to produce
great bodily injury. Actual injury is not required, but injuries are relevant
considerations. (People v. Beasley (2003) 105 Cal.App.4th 1078, 1087.) The
question for the jury was whether the force used was “of such a nature or degree that
the probable result of its application will be the infliction of great bodily injury.”
(People v. Covino (1980) 100 Cal.App.3d 660, 668.) A single blow to the face with
the use of a hand or fist may constitute assault by means of force likely to produce
great bodily injury. (In re Nirran W. (1989) 207 Cal.App.3d 1157, 1161-1162.) And
the use of feet usually constitutes assault with force likely to produce great bodily
injury. (People v. Duke (1985) 174 Cal.App.3d 296, 302-303.)
Here, there was evidence that [Roberson] kicked Rhinehart in the head area.
Rhinehart was knocked unconscious and required stitches for a split lip. Rhinehart’s
injuries are not insignificant or trivial, but instead are significant or substantial
enough to constitute great bodily injury. (People v. Escobar (1992) 3 Cal.4th 740,
750, 752; People v. Armstrong (1992) 8 Cal.App.4th 1060, 1066.) Sufficient
credible evidence supported the jury’s verdict.
The court denied [Roberson’s] new trial motion after weighing the evidence
independently, stating that the jury’s verdict was supported by the evidence and that
the court disagreed with the argument that it was simply misdemeanor conduct, citing
the district attorney’s arguments. We conclude that the trial court did not abuse its
discretion in denying [Roberson’s] new trial motion. [Roberson] did not suffer a due
process violation.

8

II
[Roberson] next contends that the court erroneously denied his motion for
acquittal. We reject [Roberson’s] contention.
At the conclusion of the prosecution’s case-in-chief, [Roberson] moved for
acquittal (§ 1118.1) on the ground that there was insufficient evidence of force likely
to produce great bodily injury. In denying the motion, the court noted that a
correctional officer testified there had been kicks to the head area.
“‘The standard applied by a trial court in ruling upon a motion for judgment
of acquittal pursuant to section 1118.1 is the same as the standard applied by an
appellate court in reviewing the sufficiency of the evidence to support a conviction,
that is, “whether from the evidence, including all reasonable inferences to be drawn
therefrom, there is any substantial evidence of the existence of each element of the
offense charged.”’ [Citation.] ‘The purpose of a motion under section 1118.1 is to
weed out as soon as possible those few instances in which the prosecution fails to
make even a prima facie case.’ [Citations.] The question ‘is simply whether the
prosecution has presented sufficient evidence to present the matter to the jury for its
determination.’ [Citation.] The sufficiency of the evidence is tested at the point the
motion is made. [Citations.] The question is one of law, subject to independent
review.” (People v. Stevens (2007) 41 Cal.4th 182, 200.)
Sufficient evidence was presented for the jury to determine whether
[Roberson] committed the offense. As the trial court noted, a correctional officer
testified there had been kicks to the head area. The trial court did not err in denying
[Roberson’s] motion for acquittal. [Roberson] did not suffer a due process violation
due to the trial court’s ruling.
At trial, Rhinehart was called by the defense to testify. He was in prison for
murder. He claimed that he and [Roberson] had been friendly. Rhinehart grew up
with Sarente’s father. Rhinehart claimed that on the day of the incident, he
threatened to stab [Roberson]. When they approached one another, Rhinehart landed
on the ground. Rhinehart denied that either [Roberson] or Sarente knocked him
down. Rhinehart denied that he had been knocked out or kicked. He claimed he was
on the ground with his eyes closed and was resting. He denied that [Roberson] was
at fault. Rhinehart acknowledged that [Roberson] may have punched him. Rhinehart
would not “testify to that in court.”
Sarente testified and denied having been involved in the incident. Sarente
denied seeing [Roberson] kick Rhinehart.
[Roberson] testified. He claimed that Rhinehart called him over and threw
two punches. [Roberson] blocked the second punch and then punched Rhinehart in
the mouth, causing Rhinehart to fall backwards to the ground. [Roberson] denied
that he or Sarente kicked Rhinehart.
Defense investigator Andrew Saucedo was called to testify in rebuttal. He
interviewed Rhinehart on June 13, 2008. Rhinehart claimed that he had been hit
from behind and did not know who had knocked him out. Rhinehart also claimed he
had been kicked but did not know who had kicked him.
9

A district attorney investigator also interviewed Rhinehart. Rhinehart stated
that inmates will not testify against each other after a fight.17
1. Sufficiency of the Evidence
As articulated by the Supreme Court in Jackson, the constitutional standard for
sufficiency of the evidence is whether, “after viewing the evidence in the light most favorable to
the prosecution, any rational trier of fact could have found the essential elements of the crime
beyond a reasonable doubt.”18 This Court must, therefore, determine whether the California
court unreasonably applied Jackson. In making this determination, this Court may not usurp the
role of the finder of fact by considering how it would have resolved any conflicts in the evidence,
made the inferences, or considered the evidence at trial.19 Rather, when “faced with a record of
historical facts that supports conflicting inferences,” this Court “must presume—even if it does
not affirmatively appear in the record—that the trier of fact resolved any such conflicts in favor
of the prosecution, and defer to that resolution.”20
It is a fundamental precept of dual federalism that the States possess primary authority for
defining and enforcing the criminal law.21 Consequently, although the sufficiency of the
evidence review by this Court is grounded in the Fourteenth Amendment, it must undertake its

17

Roberson, 2010 WL 2806257 at *1-5.

18

Jackson v. Virginia, 443 U.S. 307, 319 (1979) (emphasis in the original); see McDaniel
v. Brown, 130 S. Ct. 665, 673 (2010) (reaffirming this standard).
19

Jackson, 443 U.S. at 318-19.

20

Id. at 326; see McDaniel, 130 S. Ct. at 673-74.

21

See Engle v. Isaac, 456 U.S. 107, 128 (1982).
10

inquiry by reference to the elements of the crime as set forth in state law.22 This Court must also
be ever mindful of the deference owed to the trier of fact and the sharply limited nature of
constitutional sufficiency review.23 A fundamental principle of our federal system is “that a state
court’s interpretation of state law, including one announced on direct appeal of the challenged
conviction, binds a federal court sitting in habeas corpus.”24 A determination of state law by a
state intermediate appellate court is also binding in a federal habeas action.25 This is especially
true where the highest court in the state has denied review of the lower court’s decision.26
“[A]bsent a specific constitutional violation, federal habeas corpus review of trial error is limited
to whether the error ‘so infected the trial with unfairness as to make the resulting conviction a
denial of due process.’”27 “Federal courts hold no supervisory authority over state judicial

22

Jackson, 443 U.S. at 324 n.16.

23

Juan H. v. Allen, 406 F.3d 1262, 1275 (9th Cir. 2005).

24

Bradshaw v. Richey, 546 U.S. 74, 76, (2005); see West v. AT&T, 311 U.S. 223, 236
(1940) (“[T]he highest court of the state is the final arbiter of what is state law. When it has
spoken, its pronouncement is to be accepted by federal courts as defining state law . . . .”).
25

See Hicks v. Feiock, 485 U.S. 624, 629-30 & n.3 (1988) (noting state appellate court’s
determination of state law is binding and must be given deference).
26

Id.; see West, 311 U.S. at 237 (“This is the more so where, as in this case, the highest
court has refused to review the lower court’s decision rendered in one phase of the very litigation
which is now prosecuted by the same parties before the federal court.”); Shannon v. Newland,
410 F.3d 1083, 1087 (9th Cir. 2005) (same).
27

Lewis v. Jeffers, 497 U.S. 764, 780 (1990) (quoting Donnelly v. DeChristoforo, 416
U.S. 637, 643 (1974)).
11

proceedings and may intervene only to correct wrongs of constitutional dimension.”28 It is
through this lens that this Court must view an insufficiency of the evidence claim.
Roberson misperceives the role of a federal court in a habeas proceeding challenging a
state-court conviction. This Court is precluded from either re-weighing the evidence or assessing
the credibility of witnesses. Where, as in this case, the question is one of credibility, the finding
of the finder-of-fact carries the day.29 Under Jackson, the role of this Court is to simply
determine whether there is any evidence, if accepted as credible by the jury, sufficient to sustain
conviction.30 In this case, the California Court of Appeal determined that there was sufficient
evidence of each element of the crime to support Roberson’s conviction. Although it might have
been possible to draw a different inference from the evidence, this Court is required to resolve
that conflict in favor of the prosecution.31 Roberson bears the burden of establishing by clear and
convincing evidence that these factual findings were erroneous; a burden Roberson has failed to
carry.32 The record does not compel the conclusion that no rational trier of fact could have found
proof of guilt, especially considering the double deference owed under Jackson and AEDPA.

28

Smith v. Phillips, 455 U.S. 209, 221 (1982) (citations omitted); see also SanchezLlamas v. Oregon, 548 U.S. 331, 345 (2006) (“It is beyond dispute that we do not hold a
supervisory power over the courts of the several States.” (quoting Dickerson v. United States,
530 U.S. 428, 438 (2000))).
29

See Bruce v Terhune, 376 F.3d 950, 957 (9th Cir. 2004).

30

See Schlup v. Delo, 513 U.S. 298, 340 (1995).

31

See Jackson, 443 U.S. at 326.

32

28 U.S.C. § 2254(e)(1).
12

2. Denial of New Trial
Under California law, “[t]he determination of a motion for a new trial rests so completely
within the court’s discretion that its action will not be disturbed unless a manifest and
unmistakable abuse of discretion appears.”33 Likewise, the denial of a motion for a new trial
under Federal Rule of Criminal Procedure 33 is reviewed for an abuse of discretion.34 Although
the Ninth Circuit has suggested that an abuse of discretion may also amount to a constitutional
violation,35 the Supreme Court has never held that abuse of discretion is an appropriate basis for
granting federal habeas relief. Indeed, quite to the contrary, the Supreme Court has suggested
that, while abuse of discretion is an appropriate standard on direct review, in a federal habeas
proceeding it is not.36
A petitioner may not transform a state-law issue into a federal one by simply asserting a
violation of due process.37 “[The Supreme Court has] long recognized that a mere error of state
law is not a denial of due process.”38 “[A]bsent a specific constitutional violation, federal habeas
corpus review of trial error is limited to whether the error ‘so infected the trial with unfairness as

33

People v. Williams, 756 P.2d 221, 251 (Cal. 1988), abrogated on another ground in
People v. Guiuan, 957 P.2d 928, 929 (Cal. 1998).
34

United States v. Moses, 496 F.3d 984, 987 (9th Cir. 2007).

35

See Schell v. Witek, 218 F.3d 1017, 1025 (9th Cir. 2000) (en banc).

36

Renico v. Lett, 130 S. Ct. 1855, 1862 (2010) (“It is not even whether it was an abuse of
discretion for her to have done so—the applicable standard on direct review. The question under
AEDPA is instead whether the determination of the Michigan Supreme Court that there was no
abuse of discretion was “an unreasonable application of . . . clearly established Federal law.”
(citing § 2254(d)(1))).
37

Langford v. Day, 110 F.3d 1380, 1389 (9th Cir. 1996).

38

Swarthout v. Cooke, 131 S. Ct. 860, 863 (2011) (internal quotation marks and citations

omitted).
13

to make the resulting conviction a denial of due process.’”39 “Federal courts hold no supervisory
authority over state judicial proceedings and may intervene only to correct wrongs of
constitutional dimension.”40 Roberson’s claim that the trial court’s denial of his motion for a
new trial fails because it does not present a question of constitutional dimension.
3. The Sentence
In his first enumerated ground, that the trial court failed to exercise its independent
judgment, Roberson states: “I was given 25 years to life, but my co-defendant Mr. Sarente was
given 6 months.” Roberson does not explain the relevance of this fact, assuming it to be fact,41 to
the ground he raises and the other facts asserted in support of that ground. It is unclear whether
Roberson is contending that the alleged disparity in the sentences violated a constitutional right,
or that the sentence itself was excessive. Irrespective of which theory Roberson is asserting, he
does not prevail.
On appeal, Roberson contended that the trial Court erroneously denied his Romero
motion.42 In rejecting that claim, the California Court of Appeal held:
The court detailed [Roberson’s] lengthy criminal record and denied the
motion. The 35-year-old [Roberson’s] criminal history includes convictions for first
degree burglary, dissuading a witness, two convictions for resisting arrest, three
convictions for spousal abuse, auto theft, providing false information to an officer,

39

Lewis v. Jeffers, 497 U.S. 764, 780 (1990) (quoting Donnelly v. DeChristoforo, 416
U.S. 637, 643 (1974)).
40

Phillips, 455 U.S. at 221 (citations omitted); see also Sanchez-Llamas, 548 U.S. at 345.

41

Nothing in the record reflects the disposition of the charges brought against Roberson,
if any, how the case was disposed of (plea or trial), or the sentence that was imposed upon
Roberson.
42

People v. Superior Court (Romero), 917 P.2d 628 (Cal. 1996). The procedure under
California law to have a prior strike dismissed in the interests of justice.
14

theft, possession of rock cocaine, juvenile adjudications for burglary and disturbing
the peace, and four parole violations. His strike priors were for burglary and
dissuading a witness. His current offense was committed while in prison. The trial
court did not abuse its discretion in determining that [Roberson] did not fall outside
the spirit of the three strikes law.43
Although Roberson may have received a severe sentence and the Eighth Amendment
prohibits sentences that are grossly disproportionate to the crime, “outside the context of capital
punishment, successful challenges to the proportionality of particular sentences will be
exceedingly rare.”44 Balanced against the proportionality principle is the corollary principle that
the determination of prison sentences is a legislative prerogative not within the province of the
courts.45 The Ninth Circuit has held that “‘only extreme sentences that are grossly
disproportionate to the crime’ violate the Eighth Amendment.”46 As the Supreme Court has
noted, recidivism has long been recognized as a legitimate basis for increased punishment and is
a serious public safety concern.47 Given Roberson’s extensive criminal history, it cannot be said
that Roberson’s sentence was disproportionally harsh or excessive. Nor, in the absence of
anything in the record that reflects the basis for the significantly lesser sentence allegedly

43

Roberson, 2010 WL 2806257 at *6.

44

Solem v. Helm, 463 U.S. 277, 289-90 (1983) (internal alterations and emphasis

omitted).
45

Rummel v. Estelle, 445 U.S. 263, 275-76 (1980).

46

Cacoperdo v. Demosthenes, 37 F.3d 504, 507 (9th Cir. 1994) (quoting United States v.
Bland, 961 F.2d 123, 129 (9th Cir. 1992)).
47

Ewing v. California, 538 U.S. 11, 26-27 (2003) (plurality); see Rummel, 445 U.S. at

284.
15

imposed on Roberson’s co-defendant, can this Court find that the sentence imposed on Roberson
was arbitrary and capricious.48
For the foregoing reasons, this Court cannot say that the decision of the California Court
of Appeal was “contrary to, or involved an unreasonable application of, clearly established
Federal law, as determined by the Supreme Court of the United States” at the time the state court
renders its decision or “was based on an unreasonable determination of the facts in light of the
evidence presented in the State court proceeding.”49 Roberson is not entitled to relief under his
first, second, or third grounds.
Ground 4: Failure to Investigate Competence
Roberson contends that the trial court should have investigated his competence sua
sponte. In rejecting Roberson’s arguments, the California Court of Appeal held:
III
[Roberson] next contends that the trial court failed to initiate competency
proceedings despite his “bizarre and irrational” behavior, noting that he refused to
come to court on two occasions, and was heavily medicated and not able to proceed
on one occasion. [Roberson] also had hoarded pills, made alcohol in his cell,
repeatedly threatened deputies, and inflicted injuries to himself. We conclude that
the foregoing conduct did not require the trial court to initiate competency
proceedings.
Section 1367, subdivision (a) provides: “A person cannot be tried or adjudged
to punishment while that person is mentally incompetent. A defendant is mentally
incompetent for purposes of this chapter if, as a result of mental disorder or
developmental disability, the defendant is unable to understand the nature of the

48

See Smith v. Mahoney, 611 F.3d 978, 996 (9th Cir. 2010), cert. denied, 131 S. Ct. 461
(2010) (a court is not required in a capital case to consider the fact that co-defendants did not
receive the death penalty); Beardslee v. Woodford, 358 F.3d 560, 580 (9th Cir. 2004) (holding in
a capital case that different sentences for co-defendants who were not equally culpable did not
violate the prohibition against the arbitrary imposition of the death penalty).
49

28 U.S.C. § 2254(d).
16

criminal proceedings or to assist counsel in the conduct of a defense in a rational
manner.”
Section 1368, subdivision (a) provides, in relevant part, as follows: “If, during
the pendency of an action and prior to judgment, a doubt arises in the mind of the
judge as to the mental competence of the defendant, he or she shall state that doubt
in the record and inquire of the attorney for the defendant whether, in the opinion of
the attorney, the defendant is mentally competent.”
Due process bars the trial or conviction of a mentally incompetent defendant.
(People v. Rogers (2006) 39 Cal.4th 826, 846 (Rogers ).) A trial judge must
“suspend trial proceedings and conduct a competency hearing whenever the court is
presented with substantial evidence of incompetence, that is, evidence that raises a
reasonable or bona fide doubt concerning the defendant’s competence to stand trial.
[Citations.] The court’s duty to conduct a competency hearing may arise at any time
prior to judgment. [Citations.] Evidence of incompetence may emanate from several
sources, including the defendant’s demeanor, irrational behavior, and prior mental
evaluations. [Citations.]” (Id. at p. 847.)
Here, the trial court did not express a doubt as to [Roberson’s] competence
to stand trial. Neither did defense counsel. The evidence relied upon does not
constitute substantial evidence to raise a doubt to require the trial court to initiate
competency proceedings. [Roberson’s] threatening behavior at and during trial led
to his restraint. He had been a discipline problem at the jail and received no good
time/work time credits at sentencing. The trial court had the opportunity to observe
[Roberson] during the entire trial. The evidence of [Roberson’s] competence is
apparent in his testimony at trial. We find no error. (Rogers, supra, 39 Cal.4th at p.
847.)50
Under California law, a defendant is presumed to be “mentally competent unless it is
proved by a preponderance of the evidence that the defendant is mentally competent.”51 The
Supreme Court has upheld the constitutionality of this provision.52 Competence to stand trial
requires that a defendant have “sufficient present ability to consult with his lawyer with a
reasonable degree of rational understanding—and whether he has a rational as well as factual

50

Roberson, 2010 WL 2806257 at *5.

51

Cal. Penal Code § 1369(f).

52

Medina v. California, 505 U.S. 437, 452 (1992).
17

understanding of the proceedings against him.”53 A defendant’s constitutional right to due
process is violated if his or her competency to stand trial was at issue and he or she did not
receive an adequate competency hearing.54
“A court must order a [competency] hearing sua sponte if the evidence before it raises a
‘bona fide doubt’ as to whether the defendant has become incompetent.”55 “The test for such a
bona fide doubt is ‘whether a reasonable judge, situated as was the trial court judge whose failure
to conduct an evidentiary hearing is being reviewed, should have experienced doubt with respect
to competency to stand trial.’”56 The Supreme Court has identified three factors relevant to
whether there is reason for a trial judge to doubt a defendant’s competency: prior medical
opinions about competency; evidence of irrational behavior by the defendant; and the defendant’s
demeanor at trial.57 In a habeas proceeding, this Court examines only the information that was
before the state court.58 The state court “findings that the evidence did not require a competency
hearing under Pate are findings of fact to which this Court must defer unless they are
‘unreasonable’ within the meaning of 28 U.S.C. § 2254(d).”59 In this case, neither the trial judge
nor Roberson’s attorney expressed any concern about Roberson’s competency.

53

See Dusky v. United States, 362 U.S. 402 (1960) (per curiam).

54

Pate v. Robinson, 383 U.S. 375, 385 (1986).

55

United States v. White, 670 F.3d 1077, 1082 (9th Cir. 2012) (citing Maxwell v. Roe,
606 F.3d 561, 568 (9th Cir. 2010)).
56

Id. (quoting de Kaplany v. Enomoto, 540 F.2d 975, 983 (9th Cir. 1976) (en banc)).

57

Drope v. Missouri, 420 U.S. 162, 180 (1975).

58

Amaya-Ruiz v. Stewart, 121 F.3d 486, 489 (9th Cir. 1997).

59

Mendez v. Knowles, 556 F.3d 757, 771 (9th Cir. 2009) (quoting Torres v. Prunty, 223
F.3d 1103, 1105 (9th Cir. 2000)).
18

Applying these principles to the record before it, this Court cannot say that the decision of
the California Court of Appeal was “contrary to, or involved an unreasonable application of,
clearly established Federal law, as determined by the Supreme Court of the United States” at the
time the state court rendered its decision or “was based on an unreasonable determination of the
facts in light of the evidence presented in the State court proceeding.”60 Roberson is not entitled
to relief under his fourth ground.
V. CONCLUSION AND ORDER
Roberson is not entitled to relief on any ground raised in his Petition.
IT IS THEREFORE ORDERED THAT the Petition under 28 U.S.C. § 2254 for Writ
of Habeas Corpus is DENIED.
IT IS FURTHER ORDERED THAT the Court declines to issue a Certificate of
Appealability.61 Any further request for a Certificate of Appealability must be addressed to the
Court of Appeals.62
The Clerk of the Court is to enter judgment accordingly.
Dated: August 2, 2012.
/s/ James K. Singleton, Jr.
JAMES K. SINGLETON, JR.
United States District Judge

60

28 U.S.C. § 2254(d).

61

28 U.S.C. § 2253(c); Banks v. Dretke, 540 U.S. 668, 705 (2004) (“To obtain a
certificate of appealability a prisoner must ‘demonstrat[e] that jurists of reason could disagree
with the district court’s resolution of his constitutional claims or that jurists could conclude the
issues presented are adequate to deserve encouragement to proceed further.’” (quoting Miller-El
v. Cockrell, 537 U.S. 322, 327 (2003))).
62

See Fed. R. App. P. 22(b); Ninth Circuit R. 22-1.
19