Stevenson v. San Joaquin County

Filing 19

ORDER signed by Senior Judge James K. Singleton on 11/20/2012 ORDERING that the Petition under 28:2254 for a Writ of Habeas Corpus is DENIED; IT IS FURTHER ORDERED THAT the Court DECLINES to issue a Certificate of Appealability; Any further request for a Certificate of Appealability must be addressed to the Court of Appeals; The Clerk of the Court is to enter judgment accordingly. CASE CLOSED (Reader, L)

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF CALIFORNIA
HUQUINTON STEVENSON,
No. 2:11-cv-01732-JKS
Petitioner,
MEMORANDUM DECISION
vs.
F. CHAVEZ, Warden, Sierra Conservation
Center,
Respondent.

Huquinton Stevenson, a state prisoner appearing pro se, filed a Petition for a Writ of
Habeas Corpus under 28 U.S.C. § 2254. Stevenson is currently in the custody of the California
Department of Corrections and Rehabilitation, incarcerated at the Sierra Conservation Center.
Respondent has answered. Stevenson has not replied.
I. PRIOR PROCEEDINGS/BACKGROUND
A San Joaquin County jury found Stevenson guilty of Robbery (Cal. Penal Code § 211)
and found that he personally inflicted great bodily injury in the commission of the crime (Cal.
Penal Code § 12022.7). In a bifurcated trial, the San Joaquin County Superior Court found a
prior prison term allegation true (Cal Penal Code § 667.5(b)). The trial court sentenced
Stevenson to an aggregate prison term of seven years. The California Court of Appeal affirmed
Stevenson’s conviction and sentence in an unpublished decision,1 and the California Supreme
Court denied review on August 11, 2010. In September 2010 Stevenson filed a petition for
habeas corpus relief in the San Joaquin County Superior Court, which denied his petition in a

1

People v. Stevenson, No. C063251, 2010 WL 2184893 (Cal. Ct. App. June 2, 2010).

reasoned decision on October 5, 2010. Stevenson timely filed his Petition for relief in this Court
on June 17, 2011, and his Amended Petition with leave of court on July 31, 2011. On August 30,
2011, Stevenson filed a petition for habeas relief in the California Supreme Court, which was
summarily denied without opinion or citation to authority on January 25, 2012.2
The California Court of Appeal summarized the evidence underlying Stevenson’s
conviction:
On the morning of January 6, 2009, M.R. was returning to her car after
picking up some items at a market on the corner of Center and El Dorado in
Stockton. She was carrying two bags in her arms. Her purse was hanging over her
shoulder and she held the strap with her fingers. She placed the two bags in the back
seat and closed the door. When she opened the front door and reached for her purse,
she realized that it was gone. She turned and saw [Stevenson] with the purse in his
hand running away. M.R. gave chase on foot, then ran back to her car and drove after
[Stevenson]. A young man standing next to his truck pointed in the direction
[Stevenson] had gone. [Stevenson] rushed into a nearby duplex where his girlfriend
lived with some of her family members. M.R. drove across the street to an auto body
shop and spoke with several men who worked there. She then called 911.
When police arrived, M.R. was afraid and crying and complaining of pain in
one of her fingers, which was swollen and slightly bent. She directed police to the
duplex, where [Stevenson] was found in the back bedroom and detained. M.R.’s
purse was recovered from the duplex. It was missing $190 in cash and some personal
items.
M.M. was making his delivery to the grocery market on the day of the
robbery. As he worked inside the cab of his truck, which was parked in the market
parking lot, he saw [Stevenson] walk up to M.R., lunge toward her, “yank[ ]” her
purse out, and take off running. M.M. initially gave chase, but then stopped and
called police. Shortly thereafter, he identified [Stevenson] in a field show-up.3

2

http://appellatecases.courtinfo.ca.gov/search/case/dockets.cfm?dist=0&doc_id=1990302&doc_n
o=S1960doc925.
3

Stevenson, 2010 WL 2184893 at *1.
2

II. GROUNDS RAISED/DEFENSES
In his Amended Petition Stevenson raises four grounds: (1) insufficiency of the evidence
to support the robbery conviction; (2) insufficiency of the evidence to support the enhancement;
(3) ineffective assistance of trial counsel; and (4) illegal search and seizure. Respondent
contends that Stevenson’s second, third, and fourth grounds are unexhausted, and that his second
and third grounds are procedurally defaulted. Respondent asserts no other affirmative defenses.
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
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

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).

6

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

‘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
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

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)).
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”).
4

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
the presumed decision of the state court the same AEDPA deference that it would give a
reasoned decision of the state court.16

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
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).
5

Stevenson has not replied to Respondent’s answer. 28 U.S.C. § 2248 provides:
The allegations of a return to the writ of habeas corpus or of an answer to an order
to show cause in a habeas corpus proceeding, if not traversed, shall be accepted as
true except to the extent that the judge finds from the evidence that they are not true.
Under § 2248, where there is no denial of the Respondent’s allegations in the answer, or the
denial is merely formal and unsupported by an evidentiary basis, the court must accept
Respondent’s allegations.17 Where a petitioner has not disputed a contention in the response and
it does not appear from the record before the court that the contention is erroneous, the court may
accept that contention.18
IV. DISCUSSION
A.

Exhaustion/Procedural Bar
This Court may not consider claims that have not been fairly presented to the state

courts.19 Exhaustion of state remedies requires the petitioner to fairly present federal claims to
the state courts in order to give the state the opportunity to pass upon and correct alleged
violations of its prisoners’ federal rights.20 A petitioner fairly presents a claim to the state court
for purposes of satisfying the exhaustion requirement if he presents the claim: (1) to the proper
forum, (2) through the proper vehicle, and (3) by providing the proper factual and legal basis for
the claim.21

17

See Carlson v. Landon, 342 U.S. 524, 530 (1952).

18

Phillips v. Pitchess, 451 F.2d 913, 919 (9th Cir. 1971).

19

28 U.S.C. § 2254(b)(1); see Baldwin v. Reese, 541 U.S. 27, 29 (2004) (citing cases).

20

Duncan v. Henry, 513 U.S. 364, 365 (1995).

21

Scott v. Schriro, 567 F.3d 573, 582 (9th Cir. 2009).
6

A federal habeas court will not review a claim rejected by a state court “if the decision of
[the state] court rests on a ground that is independent of the federal question and adequate to
support the judgment.”22 “The state-law claim may be a substantive rule dispositive of the case,
or a procedural barrier to adjudication of the claim on the merits.”23 Procedural default does not
preclude federal habeas review unless the last state court rendering judgment in a case, clearly
and expressly states that its judgment rests on a state procedural bar.24
Stevenson raised his second, third, and fourth grounds in his state habeas proceedings. At
the time Stevenson filed his Petition for relief in this Court, although the San Joaquin County
Superior Court had ruled on Stevenson’s state habeas petition, he had not yet presented it to the
California Appellate Courts. Under California’s unique habeas procedure, a prisoner who is
denied habeas relief in the superior court files a new original petition for relief in the court of
appeal. “The new petition, however, must be confined to claims raised in the initial petition.”25
If denied relief by the court of appeal, the defendant has the option of either filing a new original
petition for habeas relief or a petition for review of the court of appeal’s denial in the California
Supreme Court.26 This is considered as the functional equivalent of the appeal process.27

22

Coleman v. Thompson, 501 U.S. 722, 729 (1991).

23

Walker v. Martin, 131 S. Ct. 1120, 1127 (2011).

24

Teague v. Lane, 489 U.S. 288, 298-99 (1989) (citing Harris v. Reed, 489 U.S. 255,
262-63 (1989)).
25

Walker v. Martin, 131 S. Ct. 1120, 1125 (2011) (citing In re Martinez, 209 P.3d 908,
915 (Cal. 2009) (“The court has also refused to consider newly raised grounds for relief which
were known to the petitioner at the time of a prior attack on the judgment.”)).
26

See Carey v. Saffold, 536 U.S. 214, 221-22 (2002).

27

Id. at 222.
7

This Court, having considered the entire record declines to dismiss any of Stevenson’s
claims as unexhausted or procedurally defaulted. First, this Court may deny a habeas claim on
the merits, the failure to exhaust notwithstanding,28 when it is clear that the petition does not
raise a colorable federal claim.29 Second, to the extent that the claims were presented in the statecourt habeas proceedings, the California Supreme Court has finally disposed of those claims and,
because it did so summarily, the last state-court reasoned decision was that of the San Joaquin
County Superior Court that predated the Petition in this case. Third, this Court’s discretion
should be exercised to further the interests of comity, federalism, and judicial efficiency.30 Since
Respondent also addresses Stevenson’s claims on the merits in its answer, it appears to be in the
interests of the parties and judicial efficiency without unduly offending the interests of either
comity or federalism for the court to decide those three grounds on the merits. Finally, it does
not appear that any California Court invoked a procedural bar in denying any of Stevenson’s
claims.
B.

Merits
Ground 1: Sufficiency of Evidence (Robbery); Ground 2: Sufficiency of the Evidence
(Enhancement)
Stevenson contends that there was no evidence that the victim’s purse was taken with

force and, because she was not aware of the injury to her finger until later, there was insufficient

28

28 U.S.C. § 2254(b)(2).

29

Cassett v. Stewart, 406 F.3d 614, 624 (9th Cir.2005); see Rhines v. Weber, 544 U.S.
269, 277 (2005) (“plainly meritless”).
30

See Boyd v. Thompson, 147 F.3d 1124, 1127 (9th Cir. 1997).
8

evidence to support a finding that the victim suffered bodily injury. The California Court of
Appeal rejected Stevenson argument:
[Stevenson] contends there was insufficient evidence to support his
conviction for robbery. We disagree.
“Robbery is the felonious taking of personal property in the possession of
another, from his person or immediate presence, and against his will, accomplished
by means of force or fear.” (Pen.Code, § 211.)
To constitute robbery, it is sufficient that either the gaining possession or the
carrying away be accomplished by force or fear. (People v. Cooper (1991) 53 Cal.3d
1158, 1165, fn. 8; People v. Pham (1993) 15 Cal.App.4th 61, 65.)
There is sufficient evidence here that [Stevenson] took M.R.’s purse by force.
M.R. testified that there was nothing wrong with her finger when she left the grocery
store with her groceries. Although M.M. never saw [Stevenson] touch M.R., he saw
[Stevenson] yank the purse from her. M.R. had her fingers wrapped around the strap
of her purse when it was taken from her. While she did not feel any tugging and did
not immediately feel pain in her fingers at the moment her purse was taken, she
experienced pain and swelling soon after when she used her phone to call for help.
A medical examination shortly after the robbery revealed that her right middle finger
was indeed broken and, according to the treating physician, broken in a manner
which required “a lot of force.”
[Stevenson] argues the element of force was missing because “[M.R.] offered
no resistance whatsoever and felt absolutely no force used against her.” He adds that
the injury to M.R.’s finger, “which she never perceived at the time of the taking of
the purse, cannot retroactively supply the element of force or fear not present at the
actual time of the incident.” As the People correctly point out, regardless of when
M.R. actually realized she was injured, the force resulting in her injury occurred at
the time [Stevenson] took the purse. “ ‘[I]t is settled that a victim of robbery may be
unconscious or even dead when the property is taken, so long as the defendant used
force against the victim to take the property.’ [Citations.]” (People v. Abilez (2007)
41 Cal.4th 472, 507.) “There is no requirement a victim be aware that someone was
taking his or her property.” (Ibid.)
The record contains substantial evidence to support [Stevenson’s] conviction
for robbery.31
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

31

Stevenson, 2010 WL 2184893 at *2.
9

beyond a reasonable doubt.”32 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.33 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.”34
It is a fundamental precept of dual federalism that the States possess primary authority for
defining and enforcing the criminal law.35 Consequently, although the sufficiency of the
evidence review by this Court is grounded in the Fourteenth Amendment, it must undertake its
inquiry by reference to the elements of the crime as set forth in state law.36 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.37 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.”38 A determination of state law by a
32

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).
33

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

34

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

35

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

36

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

37

Juan H. v. Allen, 408 F.3d 1262, 1275 (9th Cir. 2005).

38

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 . . . .”).
10

state intermediate appellate court is also binding in a federal habeas action.39 This is especially
true where the highest court in the state has denied review of the lower court’s decision.40
“[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.’”41 “Federal courts hold no supervisory authority over state judicial
proceedings and may intervene only to correct wrongs of constitutional dimension.”42 It is
through this lens that this Court must view an insufficiency of the evidence claim.
Stevenson misperceives the role of a federal court in a habeas proceeding challenging a
state-court conviction. 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.43 In this
case, the California Court of Appeal determined that there was sufficient evidence of each
element of the crime of robbery as defined in California law to support Stevenson’s conviction.
The factual findings of the California Court of Appeal that the victim suffered the injury to her
finger during the commission of the robbery also supports Stevenson’s conviction on the bodily

39

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).
40

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).
41

Lewis v. Jeffers, 497 U.S. 764, 780 (1990) (quoting Donnelly v. DeChristoforo, 416
U.S. 637, 643 (1974)).
42

Sanchez-Llamas v. Oregon, 548 U.S. 331, 345 (2006) (quoting Smith v. Philips, 455
U.S. 209, 221 (1982)) (internal quotation marks omitted); see Wainwright v. Goode, 464 U.S. 78,
86 (1983) (per curiam).
43

See Schlup v. Delo, 513 U.S. 298, 340 (1995).
11

injury enhancement. 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.44 Stevenson
bears the burden of establishing by clear and convincing evidence that these factual findings were
erroneous;45 a burden Stevenson has failed to carry. The record does not compel the conclusion
that no rational trier of fact could have found proof of guilt of both robbery and the infliction of
bodily injury during the commission of the robbery, especially considering the double deference
owed under Jackson and AEDPA. Stevenson is not entitled to relief under either his first or
second ground.
Ground 3: Ineffective Assistance of Counsel
Stevenson contends that his trial counsel was ineffective in that counsel failed to object to
prosecutorial misconduct where the prosecutor mislead the jury into facts not in evidence,
mischaracterized the evidence, stated facts not in evidence, and stated her personal belief as to
the victim’s injury. Stevenson raised his ineffective assistance of counsel claim in his state
habeas proceedings, albeit on a considerably different factual basis.46 To the extent they were
presented to it, the San Joaquin County Superior Court rejected Stevenson’s contentions:
[Stevenson] alleges he received ineffective assistance of counsel in that he
claims his attorney failed to object to prosecutorial misconduct which prejudiced the
jury, failed to file a Motion to Suppress evidence, failed to investigate facts, research
law, make pretrial motions, and challenge the admissibility of evidence.
A claim of ineffective assistance of counsel has two components:
“‘First, the defendant must show that counsel’s performance was
deficient. This requires showing that counsel made errors so serious
44

See Jackson, 443 U.S. at 326.

45

28 U.S.C. § 2254(e)(1).

46

This Court treats Stevenson’s claim as exhausted only to the extent he presented it to
the state courts. See Scott v. Schriro, 567 F.3d 573, 582 (9th Cir. 2009).
12

that counsel was not functioning as the “counsel” guaranteed the
defendant by the Sixth Amendment. Second, the defendant must
show that the deficient performance prejudiced the defense. This
requires showing that counsel’s errors were so serious as to deprive
the defendant of a fair trial, a trial whose result is reliable.’
[Citation.] [¶] To establish ineffectiveness, a ‘defendant must show
that counsel’s representation fell below an objective standard of
reasonableness.’ [Citation.] To establish prejudice he ‘must show
that there is a reasonable probability that, but for counsel's
unprofessional errors, the result of the proceeding would have been
different. A reasonable probability is a probability sufficient to
undermine confidence in the outcome.’ [Citation.]” (Williams v.
Taylor (2000) 529 U.S. 362, 390-391, 120 S.Ct. 1495, 1511-1512,
146 L.Ed.2d 389, citing Strickland v. Washington (1984) 466 U.S.
668, 694, 104 S.Ct. 2052, 80 L.Ed.2d 674; In re Jones (1996) 13 Cal
.4th 552, 561, 54 Cal.Rptr.2d 52, 917 P.2d 1175.)
The
ineffectiveness must “deprive the defendant of a substantive or
procedural right to which the law entitles him.” (Williams v. Taylor,
supra, 529 U.S. at p. 393, 120 S.Ct. at p. 1513, fn. omitted.) In re
Vargas (2000) 83 Cal.App.4th 1125, 1132-1133, 100 Cal.Rptr.2d
265.
[Stevenson] has failed to demonstrate that counsel’s decisions were anything
other than trial tactics which are not reviewable on habeas corpus. [Stevenson] has,
therefore, failed to set forth a prima facie case of ineffective assistance of counsel so
far as these claims are concerned. (People v. Weaver (2001) 26 Cal.4th 876, 29 P.3d
103, 111 Cal.Rptr.2d 2.)
In addition, [Stevenson] has failed to set forth any facts to either support his
contentions or demonstrate prejudice as a result of counsel’s actions. He has.
therefore, failed to set forth a prima facie case for habeas corpus relief. (Strickland
v. Washington (1984) 466 U.S. 668; People v. Weaver, supra.; In re Bower (1985)
38 Cal.3d 865; 215 Cal.Rptr. 267, 700 P .2d 1269; People v. Jackson (1980) 28
Cal.3d 264; 168 Cal.Rptr. 603, 23 618 P.2d 149; and In re Muszalski (1975) 52
Cal.App.3d 500, 125 Cal. Rptr. 286.).47

47

Docket No. 17 at 13-14.
13

Stevenson has the burden of establishing entitlement to relief.48 The petition must specify
all the grounds for relief available to the petitioner and the facts supporting each ground.49 As the
Supreme Court has stated:
Habeas Corpus Rule 2(c) is more demanding [than notice pleading under Federal
Rule of Civil Procedure 8(a)(2)]. It provides that the petition must “specify all the
grounds for relief available to the petitioner” and “state the facts supporting each
ground.” See also Advisory Committee’s Note on subd. (c) of Habeas Corpus Rule
2, 28 U.S.C., p. 469 (“In the past, petitions have frequently contained mere
conclusions of law, unsupported by any facts. [But] it is the relationship of the facts
to the claim asserted that is important . . . .”); Advisory Committee’s Note on Habeas
Corpus Rule 4, 28 U.S.C., p. 471 (“‘[N]otice’ pleading is not sufficient, for the
petition is expected to state facts that point to a real possibility of constitutional
error.” (internal quotation marks omitted)). Accordingly, the model form available
to aid prisoners in filing their habeas petitions instructs in boldface:
“CAUTION: You must include in this petition all the grounds
for relief from the conviction or sentence that you challenge. And
you must state the facts that support each ground. If you fail to
set forth all the grounds in this petition, you may be barred from
presenting additional grounds at a later date.” Petition for Relief
From a Conviction or Sentence By a Person in State Custody, Habeas
Corpus Rules, Forms App., 28 U.S.C., P. 685 (2000 ed., Supp. V)
(emphasis in original).
A prime purpose of Rule 2(c)’s demand that habeas petitioners plead with
particularity is to assist the district court in determining whether the State should be
ordered to “show cause why the writ should not be granted.” § 2243. Under Habeas
Corpus Rule 4, if “it plainly appears from the petition . . . that the petitioner is not
entitled to relief in the district court,” the court must summarily dismiss the petition
without ordering a responsive pleading. If the court orders the State to file an
answer, that pleading must “address the allegations in the petition.” Rule 5(b).50
Under Strickland, to demonstrate ineffective assistance of counsel, Stevenson must show
both that his counsel’s performance was deficient and that the deficient performance prejudiced

48

Silva, 279 F.3d at 835.

49

Rules Governing Section 2254 Cases in the U.S. Dist. Courts, Rule 2(c) (2012).

50

Mayle v. Felix, 545 U.S. 644, 655-56 (2005).
14

his defense.51 A deficient performance is one in which “counsel made errors so serious that
counsel was not functioning as the ‘counsel’ guaranteed by the Sixth Amendment.”52 Stevenson
must show that his defense counsel’s representation was not within the range of competence
demanded of attorneys in criminal cases, and that there is a reasonable probability that, but for
counsel’s ineffectiveness, the result would have been different.53 In reviewing ineffective
assistance of counsel claims in a federal habeas proceeding:
The question “is not whether a federal court believes the state court’s
determination” under the Strickland standard “was incorrect but whether that
determination was unreasonable—a substantially higher threshold.” Schriro, supra,
at 473, 127 S.Ct. 1933. And, because the Strickland standard is a general standard,
a state court has even more latitude to reasonably determine that a defendant has not
satisfied that standard. See Yarborough v. Alvarado, 541 U.S. 652, 664, 124 S.Ct.
2140, 158 L.Ed.2d 938 (2004) (“[E]valuating whether a rule application was
unreasonable requires considering the rule’s specificity. The more general the rule,
the more leeway courts have in reaching outcomes in case-by-case
determinations”).54
It is through this doubly deferential lens that a federal habeas court reviews Strickland claims
under the § 2254(d)(1) standard.55
The Supreme Court, applying the “doubly deferential standard,” has made clear that when
adjudicating ineffective assistance of counsel claims in federal habeas proceedings, unlike the
situation on direct review, focus is not on whether counsel’s performance fell below the
Strickland standard. Rather, the focus is on whether the state-court decision holding that counsel

51

Strickland v. Washington, 466 U.S. 668, 687 (1984).

52

Id.

53

Hill v. Lockhart, 474 U.S. 52, 57 (1985).

54

Knowles v. Mirzayance, 556 U.S. 111, 123 (2009).

55

Id. (citing Yarborough v. Gentry, 540 U.S. 1, 5-6 (2003)).
15

was not ineffective constituted an “unreasonable application of federal law[,] [which] is different
from an incorrect application of federal law.”56
Under § 2254(d), a habeas court must determine what arguments or theories
supported or, as here, could have supported, the state court’s decision; and then it
must ask whether it is possible fairminded jurists could disagree that those arguments
or theories are inconsistent with the holding in a prior decision of this Court.57
As Respondent notes, Stevenson does not identify the specific statements made by the
prosecutor to which he contends counsel should have objected. Stevenson has presented no
greater factual support for his conclusory statements in this Court than he did in his petition in
the state courts. Stevenson has the burden of proving by a preponderance of the evidence that he
is entitled to habeas relief.58 “A convicted defendant making a claim of ineffective assistance
must identify the acts or omissions of counsel that are alleged not to have been the result of
reasonable professional judgment.”59 The court must then consider those acts or omissions
against “prevailing professional norms.”60 Even then, “counsel is strongly presumed to have
rendered adequate assistance and made all significant decisions in the exercise of reasonable
professional judgment.”61
Stevenson has not met this heavy burden. He has shown no evidence indicating that
counsel was unreasonable or ineffective. Stevenson presented no alternate attorney’s

56

Richter, 131 S. Ct. at 785 (emphasis in the original).

57

Id. at 786.

58

See James v. Borg, 24 F.3d 20, 26 (9th Cir. 1994) (conclusory allegations unsupported
by specific facts are insufficient to warrant habeas relief).
59

Strtickland, 466 U.S. at 690.

60

Id.

61

Id.
16

determination challenging counsel’s decisions. He has not quoted any “[p]revailing norms of
practice as reflected in American Bar Association standards and the like” indicating that counsel
acted outside these norms.62 Stevenson has failed to overcome the strong presumption that
counsel’s performance fell within the wide range of reasonable professional assistance or that his
defense was prejudiced by any alleged omission as required by Strickland-Hill.
This Court cannot say that the decision of the San Joaquin County Superior Court was
“contrary to, or involved an unreasonable application of, clearly established Federal law, as
determined by the Supreme Court of the United States” or “was based on an unreasonable
determination of the facts in light of the evidence presented in the State court proceeding.”63
Nor, viewing the matter through the doubly-deferential lens of Mirzayance-Richter, can this
Court find that the state court unreasonably applied the correct legal principle to the facts of
Stevenson’s case within the scope of Andrade-Williams-Landrigan-Richter; i.e., the state court
decision was not more than incorrect or erroneous, its application of clearly established federal
law was not objectively unreasonable. Stevenson has failed to establish that counsel committed
any error that was so serious that counsel was not functioning as the counsel guaranteed by the
Sixth Amendment or that defendant’s defense was prejudiced, as required by Strickland-Hill.
Stevenson is not entitled to relief under his third ground.
Ground 4: Unconstitutional Search and Seizure
It is unclear from the Petition what evidence Stevenson contends resulted from an illegal
search and seizure that should have been suppressed. That omission notwithstanding,

62

Id. at 688.

63

28 U.S.C. § 2254(d).
17

Stevenson’s Fourth Amendment argument is foreclosed in any event by the Supreme Court
decision in Stone.64 Under the holding in Stone, “where the State has provided an opportunity for
full and fair litigation of a Fourth Amendment claim,” federal habeas corpus relief will not lie for
a claim that evidence recovered through an illegal search or seizure was introduced at trial.65 The
Ninth Circuit has made it clear that all Stone requires is that the State provide a state prisoner a
fair and full opportunity to litigate his Fourth Amendment claim.66 “The relevant inquiry is
whether petitioner had the opportunity to litigate his claim, not whether he did in fact do so or
even whether the claim was correctly decided.”67 California law provides such an opportunity.68
Consequently, Stevenson is not entitled to relief under his fourth ground.

64

Stone v. Powell, 428 U.S. 465 (1976).

65

Id. at 482.

66

See Moormann v. Schiro, 426 F.3d 1044, 1053 (9th Cir. 2005).

67

Ortiz-Sandoval v. Gomez, 81 F.3d 891, 899 (9th Cir. 1996).

68

See Cal. Penal Code § 1538.5; Gordon v. Duran, 895 F.2d 610, 613-14 (9th Cir. 1990).
18

V. CONCLUSION AND ORDER
Stevenson 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 a Writ
of Habeas Corpus is DENIED.
IT IS FURTHER ORDERED THAT the Court declines to issue a Certificate of
Appealability.69 Any further request for a Certificate of Appealability must be addressed to the
Court of Appeals.70
The Clerk of the Court is to enter judgment accordingly.
Dated: November 20, 2012.
/s/ James K. Singleton, Jr.
JAMES K. SINGLETON, JR.
United States District Judge

69

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,
537 U.S. at 327)).
70

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