Moore v. Sacramento County Superior Court et al

Filing 8

FINDINGS and RECOMMENDATIONS signed by Magistrate Judge Craig M. Kellison on 01/11/12 recommending that petitioner's petition for a writ of habeas corpus 1 be summarily dismissed and that all pending motions be denied as moot. MOTION 3 and Petition 1 referred to Judge Morrison C. England Jr. Objections due within 14 days. (Plummer, M)

1
2
3
4
5
6
7
8

IN THE UNITED STATES DISTRICT COURT

9

FOR THE EASTERN DISTRICT OF CALIFORNIA

10
11

THOMAS EUGENE MOORE,

12
13
14

No. CIV S-11-3263-MCE-CMK-P

Petitioner,
vs.

FINDINGS AND RECOMMENDATIONS

SACRAMENTO COUNTY
SUPERIOR COURT, et al.,

15
Respondents.
16
/
17
18

Petitioner, a state prisoner proceeding pro se, brings this petition for a writ of

19

habeas corpus pursuant to 28 U.S.C. § 2254. Pending before the court is petitioner’s [amended]

20

petition for a writ of habeas corpus (Doc. 1).

21

Rule 4 of the Federal Rules Governing Section 2254 Cases provides for summary

22

dismissal of a habeas petition “[i]f it plainly appears from the face of the petition and any

23

exhibits annexed to it that the petitioner is not entitled to relief in the district court.” In the

24

instant case, it is plain that petitioner is not entitled to federal habeas relief. The underlying basis

25

for all the claims raised in the petition is petitioner’s contention that the trial judge who presided

26

over his state court criminal trial lacked jurisdiction to do so. In particular, petitioner contends
1

1

that Judge Mulkey, a retired Butte County Superior Court judge who had been assigned to sit

2

temporarily on the Sacramento County Superior Court, failed to take the required oath by state

3

law to serve as a temporary judge. The documents attached to the petition clearly reveal that the

4

state courts denied petitioner’s jurisdiction argument based entirely on interpretation of relevant

5

state law. A writ of habeas corpus is available under 28 U.S.C. § 2254 only on the basis of a

6

transgression of federal law binding on the state courts. See Middleton v. Cupp, 768 F.2d 1083,

7

1085 (9th Cir. 1985); Gutierrez v. Griggs, 695 F.2d 1195, 1197 (9th Cir. 1983). It is not

8

available for alleged error in the interpretation or application of state law. Middleton, 768 F.2d at

9

1085; see also Lincoln v. Sunn, 807 F.2d 805, 814 (9th Cir. 1987); Givens v. Housewright, 786

10

F.2d 1378, 1381 (9th Cir. 1986). Habeas corpus cannot be utilized to try state issues de novo.

11

See Milton v. Wainwright, 407 U.S. 371, 377 (1972).

12

In an attempt to bootstrap his state law claim regarding Judge Mulkey’s

13

jurisdiction to hear petitioner’s case into a federal claim, petitioner argues that his trial and

14

appellate counsel were ineffective for failing to raise the jurisdiction issue in state court. The

15

Sixth Amendment guarantees the effective assistance of counsel. The United States Supreme

16

Court set forth the test for demonstrating ineffective assistance of counsel in Strickland v.

17

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

18

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

19

at 688. To this end, petitioner must identify the acts or omissions that are alleged not to have

20

been the result of reasonable professional judgment. See id. at 690. The federal court must then

21

determine whether, in light of all the circumstances, the identified acts or omissions were outside

22

the wide range of professional competent assistance. See id. In making this determination,

23

however, there is a strong presumption “that counsel’s conduct was within the wide range of

24

reasonable assistance, and that he exercised acceptable professional judgment in all significant

25

decisions made.” Hughes v. Borg, 898 F.2d 695, 702 (9th Cir. 1990) (citing Strickland, 466 U.S.

26

at 689).
2

1

Second, a petitioner must affirmatively prove prejudice. See Strickland, 466 U.S.

2

at 693. Prejudice is found where “there is a reasonable probability that, but for counsel’s

3

unprofessional errors, the result of the proceeding would have been different.” Id. at 694. A

4

reasonable probability is “a probability sufficient to undermine confidence in the outcome.” Id.;

5

see also Laboa v. Calderon, 224 F.3d 972, 981 (9th Cir. 2000). A reviewing court “need not

6

determine whether counsel’s performance was deficient before examining the prejudice suffered

7

by the defendant as a result of the alleged deficiencies . . . If it is easier to dispose of an

8

ineffectiveness claim on the ground of lack of sufficient prejudice . . . that course should be

9

followed.” Pizzuto v. Arave, 280 F.3d 949, 955 (9th Cir. 2002) (quoting Strickland, 466 U.S. at

10

697).

11

The Strickland standards also apply to appellate counsel. See Smith v. Robbins,

12

528 U.S. 259, 285 (2000); Smith v. Murray, 477 U.S. 527, 535-36 (1986); Miller v. Keeney, 882

13

F.2d 1428, 1433 (9th Cir. 1989). However, an indigent defendant “does not have a constitutional

14

right to compel appointed counsel to press nonfrivolous points requested by the client, if counsel,

15

as a matter of professional judgment, decides not to present those points.” Jones v. Barnes, 463

16

U.S. 745, 751 (1983). Counsel “must be allowed to decide what issues are to be pressed.” Id.

17

Otherwise, the ability of counsel to present the client’s case in accord with counsel’s professional

18

evaluation would be “seriously undermined.” Id.; see also Smith v. Stewart, 140 F.3d 1263, 1274

19

n.4 (9th Cir. 1998) (counsel not required to file “kitchen-sink briefs” because it “is not necessary,

20

and is not even particularly good appellate advocacy.”) Further, there is, of course, no obligation

21

to raise meritless arguments on a client’s behalf. See Strickland, 466 U.S. at 687-88. Thus,

22

counsel is not deficient for failing to raise a weak issue. See Miller, 882 F.2d at 1434. In order to

23

demonstrate prejudice in this context, petitioner must demonstrate that, but for counsel’s errors,

24

he probably would have prevailed on appeal. See id. at n.9.

25

///

26

///
3

1

Assuming for the moment that counsel somehow performed deficiently by failing

2

to raise the jurisdiction argument, petitioner has alleged no facts, and the court cannot conceive of

3

any, which would begin to suggest that the result of petitioner’s jury trial would have been any

4

different had Judge Mulkey not presided over the case. Therefore, it is plain that petitioner is not

5

entitled to federal habeas relief on the theory of ineffective assistance of either trial or appellate

6

counsel.

7

Based on the foregoing, the undersigned recommends that petitioner’s petition for

8

a writ of habeas corpus (Doc. 1) be summarily dismissed and that all pending motions be denied

9

as moot.

10

These findings and recommendations are submitted to the United States District

11

Judge assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within 14 days

12

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

13

with the court. Responses to objections shall be filed within 14 days after service of objections.

14

Failure to file objections within the specified time may waive the right to appeal. See Martinez v.

15

Ylst, 951 F.2d 1153 (9th Cir. 1991).

16
17
18
19

DATED: January 11, 2012
______________________________________
CRAIG M. KELLISON
UNITED STATES MAGISTRATE JUDGE

20
21
22
23
24
25
26
4