Hunt v. People of the State of California
MEMORANDUM DECISION signed by Senior Judge James K. Singleton on 4/10/2018 DENYING 1 Petition for Writ of Habeas Corpus. IT IS FURTHER ORDERED that the Court GRANTS a Certificate of Appealability solely with respect to Hunt's claim that the evidence was insufficient to support his convictions (Ground 2). Any further request for a Certificate of Appealability must be addressed to the 9th Circuit Court of Appeals. CASE CLOSED. (York, M)
IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF CALIFORNIA
RUSSELL K. HUNT,
SCOTT KERNAN, Secretary, California
Department of Corrections and
Russell K. Hunt, a state prisoner proceeding pro se, filed a Petition for a Writ of Habeas
Corpus with this Court pursuant to 28 U.S.C. § 2254. At the time he filed the Petition, Hunt was
in the custody of the California Department of Corrections and Rehabilitation and incarcerated at
Chuckawalla Valley State Prison. It appears that Hunt has since been released on supervised
parole, as a search on the Department of Corrections and Rehabilitation’s inmate locator website
(http://inmatelocator.cdcr.ca.gov/, Inmate No. AP4152) has no record of him. Hunt has filed a
change of address with this Court that lists a private residence. Respondent has answered, and
Hunt has not replied.
I. BACKGROUND/PRIOR PROCEEDINGS
On October 23, 2012, Hunt was charged with stalking (Count 1), stalking with a court
order in effect (Count 2), and contempt of court for disobeying a court order (Count 3). Hunt
Because it appears that Hunt has been released from prison but is on post-release
supervision, Scott Kernan, Secretary, California Department of Corrections and Rehabilitation, is
substituted for the People of the State of California. FED. R. CIV. P. 25(c); Rule 2(a), Rules
Governing Section 2254 Cases in the United States District Courts; Stanley v. Cal. Supreme
Court, 21 F.3d 359, 360 (9th Cir. 1994).
pled not guilty and, prior to trial, his Faretta2 motion to represent himself was granted. After the
People rested and Hunt was advised to call his first witness, Hunt moved to be represented by
counsel. The Court denied the motion. After the jury found him guilty on all counts and ordered
him to be remanded to the county jail, Hunt made another motion to be represented counsel. The
court deferred ruling on the motion to allow Hunt an opportunity to review the pre-sentencing
report before deciding whether he wanted to be represented by counsel at sentencing. The
motion was not revisited after that.
On direct appeal of his conviction, the California Court of Appeal laid out the following
facts underlying the charges against Hunt and the evidence presented at trial:
Beginning in 2010 [Hunt’s] and Lemke’s paths crossed as both performed
karaoke in local clubs. Lemke performed karaoke several nights a week, every other
week, at both the Castle and Showboat clubs. [Hunt] also frequented both karaoke spots.
Lemke occasionally said hello to [Hunt] but did not have any other interaction with him.
A karaoke operator testified that on a few occasions [Hunt] would enter the bar after
Lemke and would sign up to sing right after her, requesting songs she had sung the week
In February 2011 [Hunt] sent Lemke a Facebook message about her relationship
with a karaoke disc jockey (DJ). After Lemke failed to respond, [Hunt] sent a Facebook
message assuring her he had no criminal convictions, never brought harm to others, and
did not have a “dark side.” Lemke found the message very strange. In a third message,
[Hunt] told Lemke there was “an opportunity for us to be great friends and things get
distorted.” The message also stated they “might scare each other” and suggested they
sing a duet at karaoke. [Hunt] apologized for being shy, which he said was caused by
Lemke finally responded to the messages. She told [Hunt] she preferred a private
life and was not interested in pursuing a friendship with him.
The Facebook messages from [Hunt] continued. In one message [Hunt] told a
story about a woman named Sheryll who was distraught because her husband had beaten
Faretta v. California, 422 U.S. 806 (1975) (holding that a defendant in a state
criminal trial has the constitutional right to refuse appointed counsel and represent himself when
he does so voluntarily and intelligently).
her. [Hunt] comforted the woman and told her she could end the “nightmare” by getting
a restraining order and a divorce. Lemke found the message disturbing and asked him to
stop sending her messages. She said she would see [Hunt] at the Showboat but asked that
he respect her earlier decision.
Lemke later saw [Hunt] at the Showboat; she told him he misunderstood her
situation and asked him to stop bothering her. Lemke attempted to distance herself from
[Hunt] when she went to the karaoke bars. She asked the karaoke DJ’s to separate them
in the singing lineup in an effort to avoid contact with [Hunt].
Messages, Letters, and Gifts
[Hunt] continued to send Lemke messages. He also sent a karaoke machine,
along with a letter and a picture of Shrek cartoon characters that were intended to
represent the two of them, to Lemke at a prior employer’s address. In the letter, [Hunt]
stated he was encouraging Lemke to pursue her singing in a way he hoped was “not too
intrusive.” Lemke responded that [Hunt] was being too intrusive and asked that their
relationship remain “strictly social” and he not invade her privacy again.
[Hunt] admitted he found Lemke “interesting” and that he had found her former
employer on one of her old online profiles. [Hunt] asked Lemke to forgive him and told
her, “I have found often people stumble when they are getting to know each other. I
promise to be more thoughtful. No harm was intended.”
[Hunt], in March 2011, sent Lemke a message telling her of a revelation from
God informing him that he and Lemke would be married someday. Although Lemke,
with the help of a friend, wrote [Hunt] a letter telling him to leave her alone, [Hunt]
continued to contact her.
Subsequently, [Hunt] began sending messages to Lemke’s e-mail, although she
had not given him her address. [Hunt] found the address in an online profile. He told
Lemke there was no need to put a wall between them. [Hunt] talked about Lemke being
an abuse victim and told her he hoped the greatest romantic relationship she would ever
have would be with him. [Hunt] admitted he believed he frightened her at times.
Lemke was afraid because she did not know how [Hunt] was discovering her
contact information or why he was making assumptions about her. Again, Lemke
informed [Hunt] she did not want to be friends or have a relationship. Lemke requested
that he cease contacting her and threatened legal action if he ignored her request. She
blocked [Hunt] on Facebook.
At this point, Lemke contacted local law enforcement about [Hunt’s] continuing
unwelcome attentions. The police suggested a restraining order. Lemke did not pursue
the option because she hoped [Hunt] would cease if she avoided and ignored him. In
addition, Lemke did not know how [Hunt] would react if she obtained one.
[Hunt’s] attentions did not cease. He suggested to a third party that the third party
contact Lemke about a singing position in that person’s band. Lemke received flowers at
her home from [Hunt] on Mother’s Day. [Hunt] also sent her a pair of T-shirts he had
made with her picture on them and a nickname he thought she should use in her singing
career. The arrival of these gifts at her home frightened Lemke.
The next time she went to the Showboat, Lemke brought the T-shirts. She gave
them back to [Hunt] and told him not to send her anything again. Later that evening,
[Hunt] put on one of the T-shirts and wore it around the club. Lemke told him to take it
off. [Hunt] responded that he would talk to Lemke’s ex-husband about it, using her
ex-husband’s name. Lemke had never mentioned her ex-husband to [Hunt]. [Hunt] also
threatened to contact her employer and get her fired.
[Hunt] also left things on Lemke’s car when it was parked outside the karaoke
bars. Lemke believed he left a Shania Twain autobiography on her car. [Hunt] left a
note encouraging her to pursue a career as a teacher. [Hunt] left a CD of his songs on her
seat at the karaoke bar. On Lemke’s birthday, [Hunt] had her birthday put up on the
“birthday board” at the bar.
Contact with Lemke’s Boyfriend and Ex-husband
When Lemke began dating Justice Larson in September 2011, she told him about
[Hunt]. Larson noticed [Hunt] frequently watched Lemke. When Lemke and Larson
occasionally kissed in the bar parking lots, [Hunt] would walk past them sometimes,
chanting “Justice, she is yours.” The first time [Hunt] walked past Lemke and Larson in
the parking lot, Lemke asked [Hunt] if he was following her and [Hunt] admitted he was
“looking out for my friend.”
In October 2011 Lemke’s ex-husband received a letter from [Hunt] in which
[Hunt] accused Lemke of lying. [Hunt] also provided details regarding Lemke’s
financial situation so her ex-husband could reduce his payments. In addition, [Hunt]
stated Lemke had a mental illness and had been molested by her father, facts which
[Hunt] suggested could help her ex-husband gain full custody of their children. [Hunt]
wrote another letter to Lemke’s ex-husband in which he mentioned a kidnapping and a
posttraumatic stress disorder that he might have learned about from Lemke’s mother.
In late 2011 Lemke told friends about a dream she had of her late father. It was a
beautiful dream that “brought a smile” to her heart. [Hunt] was nearby when she talked
about the dream. A few months later, Lemke found a song by [Hunt] on the Internet
entitled “Every Day You Bring a Smile to My Heart,” accompanied by a picture of
Lemke and her name. On the Web site [Hunt] wrote that the song had been inspired by
Lemke and was his response to her father’s death. [Hunt] left a CD with the song on it
on Lemke’s car, with a note stating that he would give her 10 percent of any profits from
Lemke believed [Hunt] was constantly monitoring her. The fact that [Hunt] put
her picture up on music Web sites along with the song particularly upset her. Music Web
sites also had another of [Hunt’s] songs that referenced Lemke and contained facts about
her life that she had never told him.
In July 2012 Lemke and a friend sat at the Showboat bar. [Hunt’s] CD was on the
bar and they began to discuss his music. Lemke’s friend asked [Hunt] to come over even
though the friend was aware of Lemke’s discomfort with [Hunt]. When [Hunt] sat down
by them, Lemke told her friend never to pull her into a conversation with [Hunt] and
walked away. After Lemke heard [Hunt] describe her as crazy, she threw water in his
Lemke Moves and Obtains Restraining Orders
By the summer of 2012 Lemke had moved. She began receiving notes and gifts
from [Hunt] at her new address. [Hunt] sent Lemke a note telling her to have her taillight
fixed, accompanied by $40. He also left a box of painting supplies next to her mailbox
with a note telling her to paint her car because it looked like a “meth-mobile.” Lemke
was terrified because [Hunt] had physically left the painting supplies at her new
residence. She feared he was watching her and her children and that he might harm
Lemke did not know what [Hunt] was capable of, but she knew he would not
leave her alone. After she saw a picture on the cover of a CD of [Hunt] holding a gun,
she became even more afraid for her safety. Lemke decided to obtain a restraining order,
and in August 2012 the court issued a temporary restraining order, followed by a
permanent restraining order.
After Lemke had a friend serve [Hunt] with the temporary restraining order,
[Hunt] sent her a letter telling her she suffered from schizophrenia and needed treatment.
[Hunt] offered to pay for the treatment. This disturbed Lemke, who did not have
schizophrenia. Not long after, [Hunt] e-mailed and mailed to Lemke’s sister-in-law’s
employer a note warning that Lemke was schizophrenic and encouraging the family to
get her into treatment.
[Hunt] mailed three more letters to Lemke’s residence. In the first, [Hunt] sought
discovery in preparation for the hearing on the restraining order and named Lemke’s
minor son as one of his witnesses. He stated friends of Lemke “are hostile witnesses
against you and you must submit this to the Court,” she would have to compensate them
for lost wages, and she would have to “serve them with a subpoena.” He threatened to
bring Lemke’s family into court and to file a lawsuit against her. In the second letter,
[Hunt] threatened to have Lemke arrested for using a phony name. He also sent a copy
of a letter he had sent to the court, urging the court to run checks on Lemke with various
state and government agencies. The third letter requested the immediate issuance of a
bench warrant for Lemke for using a false identity.
After [Hunt] was arrested for violating the temporary restraining order, he filed a
civil lawsuit against Lemke for defamation. He also tried to obtain a restraining order
against her. [Hunt] sent letters to Lemke’s friends, her mother, and her attorney. He sent
Lemke’s employers subpoenas with handwritten notes containing claims about Lemke’s
Lemke purchased pepper spray and a stun gun to protect herself after [Hunt] was
released from custody. She took a concealed weapons course and outfitted her home
with an alarm system. [Hunt] eventually dropped his lawsuit against her.
Prior Uncharged Conduct
The prosecution also introduced evidence of prior uncharged conduct under
Evidence Code section 1101, subdivision (b).
Maureen Pierson met [Hunt] during their participation in a 12–step program 22
years before. [Hunt] began leaving Pierson gifts and notes on the group bulletin board or
on top of her car, though Pierson had no personal relationship with [Hunt]. Among the
gifts was a framed photograph of a Porsche with her maiden name on it and a rubber doll
in a nurse’s uniform wired to the photo. Pierson never worked as a nurse. On another
occasion, Pierson found a cup of flowers with her name on it in the bathroom.
Pierson told [Hunt] to leave her alone. However, [Hunt] continued to contact her
and write her letters. Pierson contacted the police because [Hunt] was disrupting her life.
[Hunt] obtained Pierson’s address and phone number and left messages on her answering
machine. He told Pierson that God had told him they were to be together and that her
fiancé was in the way. [Hunt] said he wanted to be friends with Pierson’s son. Although
Pierson obtained a restraining order, [Hunt] did not stop contacting her.
Brandi Hood worked at a bar that [Hunt] frequented in 2005. Hood considered
[Hunt] only a customer, but [Hunt] would often leave her notes with his phone number.
He also left a college catalog to which he had taped a photo he had taken of her without
her knowledge. Somehow, [Hunt] discovered Hood’s home address and had a box of
schoolbooks delivered to her home. After [Hunt] ignored Hood’s request that he leave
her alone, she obtained a restraining order. [Hunt] sent “slanderous” letters to Hood’s
boss and to owners of businesses near the bar.
[Hunt] testified he first met Lemke when he was selling cherries at his home in
June 2010. The two spoke, and Lemke mentioned her son. He gave Lemke the karaoke
machine to encourage her to branch out and sing new songs. He admitted he tended to
write romantic letters.
[Hunt] stated he saw Lemke suffer a panic attack in April 2011 that endangered
her son. He sent Lemke flowers after the incident. [Hunt] sent Lemke money and
supplies to fix her car in order to help her get jobs. Because he believed Lemke suffered
from schizophrenia, he offered to pay for psychiatric help. He sent her T-shirts to help
promote her singing. It was after he sent the shirts that Lemke told him to leave her
[Hunt] testified he frequently saw Lemke’s car in front of his home. Once he saw
Lemke following him. In 2011 [Hunt] drafted a restraining order against Lemke but
never filed it. At the beginning of 2012 Lemke confronted him and threatened to “get”
him. [Hunt] had no idea what she was talking about. Lemke threw water in his face
because she was upset about [Hunt] singing his original songs at the karaoke bar.
When Lemke had [Hunt] served with the restraining order, [Hunt] told her to stay
out of his life. [Hunt] sought to have Lemke arrested for using a false name before he
realized she had changed her name. Since that time, [Hunt] had avoided Lemke.
Lauren Huey, an employee at the Showboat, testified about the incident in which
Lemke threw water in [Hunt’s] face. Huey never saw [Hunt] behave in an offensive
manner toward anyone.
People v. Hunt, No. C073880, 2015 WL 534583, at *1-5 (Cal. Ct. App. Feb. 9, 2015).
As aforementioned, at the conclusion of trial, the jury found Hunt guilty on all counts.
He was subsequently sentenced to an aggregate determinate imprisonment term of 4 years and 8
months. The court also imposed a lifetime sex offender registration requirement pursuant to
California Penal Code § 290.006.3
Through counsel, Hunt appealed the conviction, arguing that: 1) there was insufficient
evidence to support the guilty verdicts on Counts 1 and 2; 2) the trial court erred in denying
Hunt’s mid-trial and post-trial requests for representation; 3) his rights to present a complete
defense were violated when the court instructed the jury that discovery did not apply to the
restraining order proceedings; and 4) his constitutional right to an impartial jury was violated
when the court failed to excuse a juror who had asked the bailiff if he should be concerned for
his safety because of this “nut jub,” referring to Hunt. Hunt also filed a supplemental brief
challenging the trial court’s imposition of a lifetime sex offender registration requirement.
That provision provides:
Any person ordered by any court to register pursuant to the [Sex Offender
Registration] Act for any offense not included specifically in subdivision (c) of Section
290, shall so register, if the court finds at the time of conviction or sentencing that the
person committed the offense as a result of sexual compulsion or for purposes of sexual
gratification. The court shall state on the record the reasons for its findings and the
reasons for requiring registration.
CAL. PENAL CODE § 290.006.
Noting that Respondent agreed that the sex offender registration requirement should be
remanded to the trial court to ensure that it properly exercised its discretion, the Court of Appeal
unanimously vacated the trial court’s order requiring Hunt to register as a sex offender but
affirmed the judgment against Hunt in all other respects.4 Hunt petitioned for review of his
claims that: 1) there was insufficient evidence to support the guilty verdicts on Counts 1 and 2;
2) the trial court erred in denying Hunt’s mid-trial and post-trial requests for representation; and
3) his rights to present a complete defense were violated when the court instructed the jury that
discovery did not apply to the restraining order proceedings. The California Supreme Court
summarily denied review on May 18, 2015.
While his appeal was pending, Hunt filed in the California Superior Court a pro se
petition for habeas relief in which he averred that he was denied counsel at trial and at
sentencing and that he suffered a sentence for two crimes that constituted a course of conduct, in
violation of the protection against Double Jeopardy. On May 14, 2015, the superior court denied
the petition on the ground that his direct appeal, which the court contended raised both habeas
issues, was still pending.
Hunt then filed another pro se petition for habeas relief in the California Court of Appeal.
In that petition, Hunt argued that: 1) his convictions were not supported by legally sufficient
evidence; 2) the jury was not adequately instructed as to the elements of the crimes; 3) the
On remand, the trial court found that Hunt committed the crimes as a result of
sexual compulsion or for purposes of sexual gratification and again ordered Hunt to register as a
sex offender pursuant to California Penal Code § 290.006. On appeal of that decision, the Court
of Appeal unanimously reversed, concluding that the trial court’s finding was not supported by
the record and thus could not be the basis for an order requiring lifetime sex offender
registration. People v. Hunt, No. C081377, 2017 WL 2825808, at *3 (Cal. Ct. App. June 30,
statutory language defining “stalking” is unconstitutionally vague; 4) the trial judge committed
obstruction of justice by refusing to admit certain evidence; 5) he suffered a sentence for two
crimes that constituted a course of conduct, in violation of the protection against Double
Jeopardy; and 6) he is being subjected to false imprisonment due to judicial misconduct. The
Court of Appeal denied the petition without comment on August 27, 2015. Hunt did not seek
habeas relief in the California Supreme Court.
While his habeas petition was pending in the Court of Appeal, Hunt timely filed a pro se
Petition for a Writ of Habeas Corpus in the United States District Court for the Central Distict of
California on June 17, 2015. See 28 U.S.C. § 2244(d)(1)(A). Because Hunt’s conviction
occurred in the Shasta County Superior Court, which is located within the jurisdictional
boundaries of the Eastern District of California, the Petition was transferred to this Court.
Docket No. 5. A previously-assigned magistrate judge found that a number of the claims
presented in the Petition were not fully exhausted in the state courts. Docket No. 11. In
response to the Court’s order that he indicate how he wished to proceed, Hunt moved to proceed
on the claims that the magistrate judge had found were exhausted in the state courts. Docket No.
14. The remaining claims are now pending before the undersigned judge and ripe for
In his pro se Petition before this Court, Hunt proceeds on the following claims: 1) denial
of right to an impartial jury; 2) insufficient evidence to support the convictions; 3) denial of
counsel; and 4) judicial misconduct.5
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,” § 2254(d)(1), or “was based on an unreasonable
determination of the facts in light of the evidence presented in the State court proceeding,”
§ 2254(d)(2). A state-court decision is contrary to federal law if the state court applies a rule that
contradicts controlling Supreme Court authority or “if the state court confronts a set of facts that
are materially indistinguishable from a decision” of the Supreme Court, but nevertheless arrives
at a different result. Williams v. Taylor, 529 U.S. 362, 406 (2000).
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.” Id. at 412. 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. Early v. Packer, 537 U.S. 3, 10 (2002). Where
holdings of the Supreme Court regarding the issue presented on habeas review are lacking, “it
For ease of reference, the Court uses the numbering of the claims as used in the
Court’s order at Docket No. 15 rather than Hunt’s numbering in the mixed Petition.
cannot be said that the state court ‘unreasonabl[y] appli[ed] clearly established Federal law.’”
Carey v. Musladin, 549 U.S. 70, 77 (2006) (citation omitted).
To the extent that the Petition raises issues of the proper application of state law, they are
beyond the purview of this Court in a federal habeas proceeding. See Swarthout v. Cooke, 131 S.
Ct. 859, 863 (2011) (per curiam) (holding that it is of no federal concern whether state law was
correctly applied). It is a fundamental precept of dual federalism that the states possess primary
authority for defining and enforcing the criminal law. See, e.g., Estelle v. McGuire, 502 U.S. 62,
67-68 (1991) (a federal habeas court cannot reexamine a state court’s interpretation and
application of state law); Walton v. Arizona, 497 U.S. 639, 653 (1990) (presuming that the state
court knew and correctly applied state law), overruled on other grounds by Ring v. Arizona, 536
U.S. 584 (2002).
In applying these standards on habeas review, this Court reviews the “last reasoned
decision” by the state court. See Robinson v. Ignacio, 360 F.3d 1044, 1055 (9th Cir. 2004)
(citing Avila v. Galaza, 297 F.3d 911, 918 (9th Cir. 2002)). A summary denial is an adjudication
on the merits and entitled to deference. Harrington v. Richter, 562 U.S. 86, 99 (2011). Under
the AEDPA, the state court’s findings of fact are presumed to be correct unless the petitioner
rebuts this presumption by clear and convincing evidence. 28 U.S.C. § 2254(e)(1); Miller-El v.
Cockrell, 537 U.S. 322, 340 (2003).
Hunt has not replied to Respondent’s answer. The relevant statute provides that “[t]he
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.” 28 U.S.C. § 2248; see also Carlson v.
Landon, 342 U.S. 524, 530 (1952). Where, as here, there is no traverse filed and no evidence
offered to contradict the allegations of the return, the court must accept those allegations as true.
See Phillips v. Pitchess, 451 F.2d 913, 919 (9th Cir. 1971).
Article III, § 2 of the United States Constitution requires the existence of a case or
controversy through all stages of federal judicial proceedings. This means that, throughout the
litigation, the petitioner “must have suffered, or be threatened with, an actual injury traceable to
the defendant and likely to be redressed by a favorable judicial decision.” Lewis v. Cont’l Bank
Corp., 494 U.S. 472, 477 (1990) (citations omitted); see also Preiser v. Newkirk, 422 U.S. 395,
401 (1975) (“The rule in federal cases is that an actual controversy must be extant at all stages of
review, not merely at the time the complaint is filed.”). If an event occurs subsequent to the
filing of a lawsuit which deprives a court of the ability to provide meaningful relief, the case
becomes moot and is subject to dismissal. See United States v. Alder Creek Water Co., 823 F.2d
343, 345 (9th Cir. 1987) (“A case becomes moot when interim relief or events have deprived the
court of the ability to redress the party’s injuries.”). Similarly, a claim for habeas relief becomes
moot when the controversy between the parties is no longer alive because the party seeking relief
has obtained the relief requested. See, e.g., Picrin-Peron v. Rison, 930 F.2d 773, 776 (9th Cir.
1991) (a claim is moot when the court no longer has power to grant the requested relief).
As previously mentioned, the record before this Court indicates that Hunt has been
released from prison. However, a petition for habeas corpus relief does not necessarily become
moot when the petitioner is released from prison. Rather, the matter will remain a live case or
controversy if there remains “some concrete and continuing injury” or “collateral consequence”
resulting from the conviction. Spencer v. Kemna, 523 U.S. 1, 7 (1998). The Supreme Court has
made clear that courts are to “presume that a wrongful criminal conviction has continuing
collateral consequences (or, what is effectively the same, to count collateral consequences that
are remote and unlikely to occur).” Id. at 7-8 (citing Sibron v. New York, 392 U.S. 40, 55-56
(1968)). This presumption of collateral consequences “acknowledge[s] the obvious fact of life
that most criminal convictions do in fact entail adverse collateral legal consequences.” Sibron,
392 U.S. at 55. Accordingly, Hunt has no duty to prove collateral consequences of his custody,
and his Petition has not been rendered moot by his release from prison.
Deprival of impartial jury
Hunt first argues that the trial court violated his constitutional right to an impartial jury
by failing to excuse a juror who referred to Hunt as a “nut job” and had asked the court bailiff if
he should be concerned for his safety. The Court of Appeal, in considering this claim on direct
appeal, summarized the following factual background to this claim:
During the prosecution’s case, juror No. 10 approached the bailiff and expressed
concern for his safety. Juror No. 10 asked the bailiff if he should be “concerned for his
safety and of this nut job,” a reference to [Hunt].
Prior to questioning the juror, the court stated: “[I]t strikes me that because of the
things that you are doing during the course of the trial even, which no lawyer would be
allowed to do, you may be planting some seeds of concern within the mind of the jurors.
Now, that is completely, I think, a normal human response. However, they are required
by law to maintain the presumption of innocence as well as not considering or coming to
a conclusion, not reaching an opinion, expressing that opinion and so on. However, I
think that you are the one—you are the one that is causing the trouble potentially, if there
is trouble and I want to nip it in the bud.”
The court then questioned juror No. 10 about his comments to the bailiff. Juror
No. 10 explained, “I didn’t use the right words. It was just something that came out
because it was something that I was thinking about.” When asked by the court if he
could be fair and listen to the rest of the evidence, had retained in his mind the concept of
the presumption of innocence, and whether he would remain open-minded and not come
to any conclusions prior to the deliberation process, juror No. 10 responded in the
The court allowed [Hunt] to voir dire the juror. The juror testified that he did not
ask the bailiff if he needed protection. Juror No. 10 was unsure exactly what he had said
but testified it had been a “poor choice of words,” blurted out in jest. He approached the
bailiff because the trial court had instructed the jurors to go to the bailiff and not to the
other jurors. Juror No. 10 did not mention the incident to the other jurors. Following the
questioning of juror No. 10, the trial resumed.
Hunt, 2015 WL 534583, at *12.
As an initial matter, Respondent correctly argues that this claim is unexhausted. This
Court may not consider claims that have not been fairly presented to the state courts. 28 U.S.C.
§ 2254(b)(1); see Baldwin v. Reese, 541 U.S. 27, 29 (2004) (citing cases). To be deemed
exhausted, a claim must have been presented to the highest state court that may consider the
issue presented. See O’Sullivan v. Boerckel, 526 U.S. 838, 845 (1999). To have properly
exhausted his state court remedies, Hunt must have presented both the legal arguments and the
factual basis to the highest state court. See Peterson v. Lampert, 319 F.3d 1153, 1155-56 (9th
Cir. 2003). In this Court’s prior order at Docket No. 15, a previously-assigned magistrate judge
initially concluded that this claim was exhausted because it had been presented on direct appeal
to the Court of Appeals. A review of the record, however, indicates that, although the claim was
presented in the counseled brief before the Court of Appeals, it was not raised in the petition for
review in the California Supreme Court. Because this claim would now be untimely before the
state courts, Hunt may not now return to state court to exhaust it, and the claim may be deemed
exhausted but procedurally defaulted from habeas review.6 See Nigro v. Sullivan, 40 F.3d 990,
997 (9th Cir. 1994).
Moreover, even if Hunt had fully exhausted the claim, he still would not be entitled to
relief on it. The Sixth Amendment to the United States Constitution provides that “[i]n all
criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an
impartial jury.” U.S. CONST. amend VI (emphasis added). The right to an impartial jury is
further applicable to the states by way of the Fourteenth Amendment. See Irvin v. Dowd, 366
U.S. 717, 722 (1961). “The bias or prejudice of even a single juror is enough to violate that
guarantee.” United States v. Olsen, 704 F.3d 1172, 1189 (9th Cir. 2013) (quoting United States
v. Gonzalez, 214 F.3d 1109, 1111 (9th Cir. 2000)). However, the constitution “does not require
a new trial every time a juror has been placed in a compromising situation.” Tinsley v. Borg, 895
F.2d 520, 524 (9th Cir. 1990) (quoting Smith v. Phillips, 455 U.S. 209, 217 (1982)). “Due
process means a jury capable and willing to decide the case solely on the evidence before it, and
a trial judge ever watchful to prevent prejudicial occurrences and to determine the effect of such
occurrences when they happen.” Id. (quoting Phillips, 895 F.2d at 217).
The Ninth Circuit has recognized three forms of juror bias: 1) “actual bias, which stems
from a pre-set disposition not to decide an issue impartially”; 2) “implied (or presumptive) bias,
which may exist in exceptional circumstances where, for example, a prospective juror has a
relationship to the crime itself or to someone involved in a trial, or has repeatedly lied about a
A petitioner may overcome procedural default by establishing good cause and
prejudice. Murray v. Carrier, 477 U.S. 478, 488 (1986). Hunt did not respond by way of
Traverse to Respondent’s exhaustion defense and therefore apparently does not allege that good
cause and prejudice exists.
material fact to get on the jury”; and 3) “so-called McDonough-style bias, which turns on the
truthfulness of a juror’s responses on voir dire” where a truthful response “would have provided
a valid basis for a challenge for cause.” Fields v. Brown, 503 F.3d 755, 766-67 (9th Cir. 2007)
(citing McDonough Power Equip. v. Greenwood, 464 U.S. 548 (1984) (plurality)).
Hunt does not argue that the juror answered questions dishonestly during voir dire, and
thus his complaint appears to implicate the theory of implied bias. The Ninth Circuit has
concluded that, although the Supreme Court has never held that a juror was impliedly biased in
absence of juror dishonesty in voir dire, concurring opinions in Supreme Court cases have not
foreclosed the possibility of finding implied bias in such circumstances, and claims to that effect
are cognizable on federal habeas review. Fields, 503 F.3d at 771-72; see also Dyer v. Calderon,
151 F.3d 970, 984 (9th Cir. 1998) (finding implied bias claim cognizable on federal habeas
review because “[p]resumed bias dates back in this country at least to Aaron Burr’s trial for
“It is well accepted that bias may be presumed only in ‘extreme’ or ‘extraordinary’
cases.” Fields, 503 F.3d at 772. Most of the Ninth Circuit’s decisions presuming bias as a
matter of law have involved situations “where the relationship between a prospective juror and
some aspect of the litigation is such that it is highly unlikely that the average person could
remain impartial in his deliberations under the circumstances.” Olsen, 704 F.3d at 1191 (quoting
Fields, 503 F.70 at 770). “Prudence dictates that courts answering this question should hesitate
before formulating categories of relationships which bar jurors from serving in certain types of
trials.” Tinsley v. Borg, 895 F.2d 510, 527 (9th Cir. 1990). A court might, however, presume
bias where a juror or his close relatives have been personally involved in a situation with a fact
pattern similar to the crime. Id. at 528. Hypothetically, a court might likewise presume bias
where it is revealed that the juror is an actual employee of the prosecuting agency, where the
juror is a close relative of one of the participants in the trial or the criminal transaction, or that
the juror was a witness or somehow involved in the criminal transaction. Id.
Where a post-trial hearing has been held on juror impartiality and the fact-finding process
was objective and reasonably explored the issues presented, the state trial judge’s findings based
on that investigation are entitled to a presumption of correctness. Dyer, 151 F.3 at 975. A
petitioner must therefore present clear and convincing evidence to rebut this presumption. 28
U.S.C. § 2254(e)(1); Miller-El, 537 U.S. at 340. The Supreme Court has made it clear that on
federal habeas review, the determination of juror bias “is essentially one of credibility, and
therefore largely one of demeanor.” Tinsley, 895 F.2d at 525 (quoting Patton v. Yount, 467 U.S.
1025, 1038) (internal quotation marks omitted). The findings of state trial and appellate courts
on juror impartiality deserve “a high measure of deference.” Id. (citation omitted).
Here, Hunt has not rebutted with clear and convincing evidence the state trial court’s
finding of no bias. Rather, Hunt urges this Court to re-assess the testimony and credibility of the
juror. As the state appellate court recognized, however:
the trial court was in the best position to evaluate the nature and seriousness of
juror No. 10’s comment regarding Hunt. Juror No. 10 answered the court’s questions and
admitted his remarks had been a “poor choice of words,” blurted out in jest. The trial
court accepted this explanation, evaluated juror No. 10’s responses and demeanor, and
declined to excuse juror No. 10. Given the evidence before us, we cannot find the trial
court’s decision an abuse of discretion. Substantial evidence supports the court’s
determination that juror No. 10 could remain impartial.
Hunt, 2015 WL 534583, at *13.
The Court of Appeal further reasoned that:
juror No. 10’s comments did not reflect an improper opinion formed about the
case. Instead, juror No. 10 made a brief comment about [Hunt’s] demeanor during trial,
labeling him a “nut job” and inquiring about his own safety. While it is troubling that a
juror would describe [Hunt] in such negative terms, juror No. 10 did not express any
opinion about whether or not [Hunt] committed the crimes he was accused of or any
opinion as to [Hunt’s] veracity.
As previously stated, federal law is clear that the state court was in the best position to
assess the demeanor and weigh the credibility of the juror in question. See Yount, 467 U.S. at
1038 (“Demeanor plays a fundamental role not only in determining juror credibility, but also in
simply understanding what a potential juror is saying. . . . Demeanor, inflection, the flow of
questions and answers can make confused and conflicting utterances comprehensible.”). In light
of the deference afforded the state court’s decision and the absence of clear and convincing
evidence that rebuts the presumption of correctness this Court must bestow upon it, Hunt is not
entitled to a finding of presumed bias, and his claim must be denied.
Insufficiency of the evidence
Hunt next argues that the prosecution presented insufficient evidence to sustain his
convictions for stalking. As articulated by the Supreme Court in Jackson, the federal
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.” Jackson v. Virginia, 443 U.S. 307,
319 (1979) (emphasis in the original); see McDaniel v. Brown, 558 U.S. 120, 132-33 (2010)
(reaffirming this standard). 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. Jackson, 443 U.S. at 318-19. 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.” Id. at 326.
It is a fundamental precept of dual federalism that the States possess primary authority
for defining and enforcing the criminal law. See Engle v. Isaac, 456 U.S. 107, 128 (1982).
Consequently, although the sufficiency of the evidence review by this Court is grounded in the
Fourteenth Amendment, it must take its inquiry by reference to the elements of the crime as set
forth in state law. Jackson, 443 U.S. at 324 n.16. 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.” 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 . . . .”). “Federal courts hold no supervisory
authority over state judicial proceedings and may intervene only to correct wrongs of
constitutional dimension.” Sanchez-Llamas v. Oregon, 548 U.S. 331, 345 (2006) (quoting Smith
v. Philips, 455 U.S. 209, 221 (1982)) (internal quotation marks omitted).
Under Jackson, this Court’s role is simply to determine whether there is any evidence, if
accepted as credible by the trier of fact, sufficient to sustain conviction. Schlup v. Delo, 513
U.S. 298, 330 (1995). The United States Supreme Court has recently even further limited a
federal court’s scope of review under Jackson, holding that “a reviewing court may set aside the
jury’s verdict on the ground of insufficient evidence only if no rational trier of fact could have
agreed with the jury.” Cavazos v. Smith, 132 S. Ct. 2, 4 (2011) (per curiam). Jackson “makes
clear that it is the responsibility of the jury—not the court—to decide what conclusions should
be drawn from evidence admitted at trial.” Cavazos, 132 S. Ct. at 3-4. Under Cavazos, “a
federal court may not overturn a state court decision rejecting a sufficiency of the evidence
challenge simply because the federal court disagrees with the state court. The federal court
instead may do so only if the state court decision was ‘objectively unreasonable.’” Id. at 4
(quoting Renico v. Lett, 559 U.S. 766, 773 (2010)).
Hunt argues in his Petition, as he did on direct appeal, that the evidence did not establish
that his words or deeds constituted a threat of violence. The Court of Appeal described the
elements of counts 1 and 2 as follows:
To find [Hunt] guilty of both stalking and stalking with a court order in effect, the
jury had to find that [Hunt] made a credible threat with the intent to place Lemke in
reasonable fear for her safety or the safety of her immediate family. (CALCRIM No.
1301.) A credible threat consists of “a verbal or written threat, including that performed
through the use of an electronic communication device, or a threat implied by a pattern of
conduct or a combination of verbal, written, or electronically communicated statements
and conduct, made with the intent to place the person that is the target of the threat in
reasonable fear for his or her safety or the safety of his or her family, and made with the
apparent ability to carry out the threat so as to cause the person who is the target of the
threat to reasonably fear for his or her safety or the safety of his or her family. It is not
necessary to prove that the defendant had the intent to actually carry out the threat.”
([CAL. PENAL CODE] § 646.9, subd. (g).).
Hunt, 2015 WL 534583, at *6.
In support of his claims that the evidence was insufficient to prove the above elements,
Hunt argued on direct appeal that:
his conduct toward Lemke might have been “obnoxious, insensitive, offensive,
misguided, invasive and any number of other things, but it was not a threat to Lemke's
personal safety.” According to [Hunt], “being creepy is not the same as making a
credible threat of violence.” [Hunt] characterizes his conduct toward Lemke as “juvenile
and harassing” and “paternalistic (and patronizing),” and describes himself as a
“persistent but harmless eccentric” engaged in an “unconventional courtship.”
But all of the evidence in support of his claim was before the jury for its assessment.
This Court is precluded from re-weighing the evidence or re-assessing witness credibility.
Schlup, 513 U.S at 330; Bruce v. Terhune, 376 F.3d 950, 957-58 (9th Cir. 2004). In rejecting
this claim on direct appeal, the Court of Appeal reasoned:
The totality of the evidence presented at trial supports the jury’s conclusion that
defendant made a credible threat sufficient to constitute stalking in count 1. [Hunt]
contacted Lemke through Facebook messages, e-mails, and personal contact at karaoke
bars. He repeatedly sent packages to her home and to her previous employer. [Hunt] left
gifts on Lemke’s seat at the bar and on her car. A ll of these efforts were in pursuit of a
romantic relationship with Lemke. [Hunt] focused single-mindedly on the goal of
making Lemke his wife.
These efforts continued even though [Hunt] knew they disturbed Lemke and even
though he realized his behavior was not normal. [Hunt] thoroughly researched Lemke’s
past and present life. He wrote songs about her personal life. [Hunt] sent letters to
Lemke’s former husband encouraging him to pursue full child custody based on Lemke’s
purported mental health issues. In addition, [Hunt] threatened to speak to Lemke’s boss
and get her fired.
Lemke repeatedly tried to dissuade [Hunt], stressing she was not interested in a
romantic relationship with him. She asked him to stop contacting her, to no avail. [Hunt]
continued his unrelenting efforts to convince her they belonged together.
Taken together, [Hunt’s] words and actions support the finding of a credible
threat against Lemke in count 1. He followed Lemke to the karaoke bars, found out
where she worked, and eavesdropped on her conversations, all in an effort to convince
her to become involved with him romantically. As time passed, [Hunt’s] behavior
became more pointed and his intrusions into Lemke’s life more personal and threatening.
This pattern of conduct put Lemke in the position of reasonably fearing for her safety.
The evidence is also sufficient to support count 2, stalking with a court order in
effect. After he was served with the temporary restraining order, [Hunt] sent a letter to
Lemke. He pleaded with her to seek mental health counseling to treat her schizophrenia.
[Hunt] also contacted Lemke’s sister-in-law about Lemke’s mental health. In a letter
seeking discovery he stated Lemke’s friends were hostile witnesses against her and said
she would have to subpoena them to testify in court. Notwithstanding the court order,
[Hunt] continued unabated in his pursuit of Lemke, leading her to fear for her and her
While [Hunt] insists that “being creepy” is not the same as being threatening,
there is a point at which creepy behavior can reasonably be regarded by someone of
normal sensibilities as threatening behavior, intended to place the person in fear of harm.
That point was reached here when [Hunt] defied Lemke’s requests to be left alone and
instead uncovered alternate ways to contact her, including e-mail and her home address,
after she blocked his access on Facebook. These measures were not those of an eccentric
paramour but of a predator intent on demonstrating his power to upset Lemke’s
understandable efforts to protect her privacy. Notes and gifts deposited on a doorstep
from a legitimate suitor might be a sign of affection, but from [Hunt] they were a sign
that he was watching her and knew where she lived. And then, after Lemke succeeded in
gaining the protection of a restraining order, [Hunt] defied the order in a clear effort to
demonstrate that not even the power of the state could stop him from reaching her.
Lemke was terrified, as any single woman living alone with children would be. Lemke
did not know what [Hunt] was capable of and feared for her safety, especially after she
saw a picture of [Hunt] on a CD cover holding a gun. [Hunt] might not have made overt
or physical threats, but the totality of his treatment of Lemke supports the jury’s finding
that Lemke experienced a credible threat.
Hunt, 2015 WL 534853, at *6-8.
That conclusion is both reasonable and fully supported by the record. Although it might
have been possible to draw a different inference from other evidence, this Court is required to
resolve that conflict in favor of the prosecution. See Jackson, 443 U.S. at 326. Hunt bears the
burden of establishing by clear and convincing evidence that these factual findings were
erroneous. 28 U.S.C. § 2254(e)(1). He has failed to carry such burden. For the reasons
persuasively stated by the Court of Appeal, the record does not compel the conclusion that no
rational trier of fact could have found that Hunt’s words and deeds constituted a threat of
violence, especially considering the double deference owed under Jackson and AEDPA. Hunt is
therefore not entitled to relief on his legal insufficiency claim.
Denial of counsel
Hunt additionally contends that the trial court erred in denying his two requests (mid-trial
and post-trial) to withdraw his waiver of counsel7 and appoint counsel to represent him.
According to Hunt, the denial violated his right to counsel under the Sixth Amendment of the
U.S. Constitution. On consideration of this claim on direct appeal, the Court of Appeal laid out
the following facts underlying this claim:
Prior to trial, the trial court granted [Hunt’s] request to represent himself at trial.
The court recommended that [Hunt] be represented by counsel, but [Hunt] stated he had
represented himself in other cases and felt confident in his ability. [Hunt] said he would
represent himself at the preliminary hearing, but if the case went to trial he would request
The court understood [Hunt] was reserving his right to counsel at a future time
and told [Hunt] his waiver of the right to counsel was not irrevocable. The court
explained that the subsequent granting of a request to appoint counsel depended on the
proceedings. A timely request for counsel would be generally granted, but an untimely
request could be refused. [Hunt] repeatedly stated he was giving up his right to counsel
“[a]t this point in time.” The court again reminded [Hunt] that, although [Hunt] could
later request counsel, whether the request would be granted “would depend on the
circumstances present at the time of your request.”
[Hunt] represented himself at the preliminary hearing and through the
prosecution’s case-in-chief at trial. After the prosecution rested its case, [Hunt], in front
of the jury, told the court he would like to invoke his right to counsel. The prosecution
argued the request was an effort to sway the jury and was a disrespectful action against
After a recess and outside the presence of the jury, the court noted that at the
preliminary hearing [Hunt] had examined witnesses and tried to introduce matters into
evidence. At trial, [Hunt] questioned jurors, exercised peremptory and for cause
challenges during selection, and cross-examined the prosecution’s witnesses. Based on
these observations, the court found [Hunt] had researched the law and was fully engaged
in his self-representation.
The right to counsel guaranteed by the Sixth Amendment “has been interpreted to
encompass ‘an independent constitutional right’ of the accused to represent himself at trial, and
thus waive the right to counsel.” Stenson v. Lambert, 504 F.3d 873, 882 (9th Cir. 2007) (quoting
Faretta, 422 U.S. at 806). Such waiver, however, must be “knowing, voluntary, and intelligent.”
Iowa v. Tovar, 541 U.S. 77, 87–88 (2004). In his Petition, Hunt does not argue that his Faretta
waiver was unknowingly made, and the record provides no support for such assertion.
The court inquired as to why [Hunt] sought counsel at that time. [Hunt]
responded that he believed most of what he did was being objected to and he would not
get a fair trial if he continued to represent himself. According to [Hunt], the jury was
confused and it would be better if someone else represented him. [Hunt] told the court:
“I think that it would be best if I kept my mouth shut and had somebody else represent
me. And it would be in a more organized fashion and probably less lengthy and to my
benefit to have defense.” The court disagreed with [Hunt’s] gloss on the trial, noting that
having objections sustained during trial was one of the pitfalls of self-representation.
In denying the motion, the court stated: “I’m finding that the reasons that you
gave, the length and the stage of the trial proceedings, the fact that in my mind this is part
and parcel of various efforts that you’ve made during the course of trial to disrupt things.
I’m sensing that there might be an ulterior motive in your request, given the fact that you
did such things as serve a witness during the course of this trial.
“You have asked questions you’ve known—I’ve ordered you not to ask. You
disobeyed orders of the Court. There has been discussion about remanding you after
those things happened. You did not request a lawyer. You are only now requesting a
lawyer to try to disrupt this case.
“And that is the way I’m viewing this. I recognize that you have given other
explanations, but tactically speaking, I’m seeing this as something that you’re
doing—you’re staging to disrupt the proceedings.
“I also believe that you have been effective in terms of presenting your case. The
problem is that you go off on tangents and start asking questions that are not relevant to
“So your request at this late stage of the case is denied.”
Following the jury’s verdict, the court ordered [Hunt] remanded to custody. As
the court was setting a date for sentencing, [Hunt] requested a public defender. The court
asked [Hunt] to read the probation and sentencing report and then the court would
consider the request. The court told [Hunt] it would grant his request for counsel if, after
reading the reports, [Hunt] still desired appointed counsel. In addition, the court
reminded [Hunt] he was entitled to counsel on appeal. However, if [Hunt] wanted
counsel appointed immediately, the trial court would appoint counsel, but based on
[Hunt’s] previous self-representation the court would “hold back on that order.”
[Hunt] responded: “I'm not being clear. I have to notify other people, which I
don’t have . . . .” The court told [Hunt] he would have to deal with it; [Hunt] said he did
not have anyone’s phone numbers and he was afraid his dogs were going to die at his
house. The court ordered [Hunt] be allowed to make two or three calls from jail, even if
that was against jail protocol.
[Hunt], at sentencing, stated he had read the probation report. [Hunt] made no
reference to his prior request for counsel, nor did he make a new request for appointment
Hunt, 2015 WL 534583, at *8-10.
In John-Charles v. California, 646 F.3d 1243, 1245-46 (9th Cir. 2011), the Ninth Circuit
considered whether a petitioner’s right to counsel was violated when a California state trial court
denied the petitioner’s request to re-appoint trial counsel when he changed his mind about
representing himself because “he was bewildered by the jury selection process and motions
arguments.” The Ninth Circuit ultimately rejected the petitioner’s claim that he was
constitutionally entitled to the reappointment of counsel, finding that the Supreme Court has not
“directly address[ed] whether and under what conditions a defendant who validly waives his
right to counsel has a Sixth Amendment right to reassert it later in the same stage of his criminal
trial.” Id. at 1248-49.
In Marshall v. Rodgers, 569 U.S. 58, 61-65 (2013), the Supreme Court confirmed the
Ninth Circuit’s conclusion in John-Charles that it is an open question whether a defendant has a
constitutional right to have counsel reappointed following a valid Faretta waiver. In Rodgers,
the Court noted the “tension” between the Sixth Amendment’s guarantee of representation and
the “concurrent” constitutional right to waive representation. Id. at 62-63. The Court held that
the approach of California courts–which vest the trial judge with discretion when considering
post-waiver request for reappointment of counsel to either grant or deny them based on a totality
of the circumstances–“cannot be said” to be contrary to or an unreasonable application of
Supreme Court precedent. Id.
In this case, the California Court of Appeal’s conclusion that the trial court had discretion
to grant or deny Hunt’s mid-trial request to reappoint counsel and that such decision is reviewed
based on the totality of the circumstances is wholly consistent with Rodgers. It is wellestablished that a state court’s decision adjudicating an issue cannot be contrary to, or an
unreasonable application of, Supreme Court precedent if the Supreme Court has not yet decided
the issue. See Wright v. Van Patten, 552 U.S. 120, 125-26 (2008) (per curiam); Carey, 549 U.S.
at 77; see also Crater v. Galaza, 491 F.3d 1119, 1123 (9th Cir. 2007). Consequently, Hunt is not
entitled to relief on this ground with respect to his mid-trial request.
Likewise, the Court of Appeal denied the claim with respect to Hunt’s post-verdict
request to re-appoint counsel after finding any possible error harmless because it was not
reasonably probable that Hunt would have obtained a more favorable result at sentencing if he
had been represented by counsel. Hunt, 2015 WL 534583, at *11. This holding is also fully
consistent with federal law. See John-Charles, 646 F.3d at 1251 (rejecting petitioner’s argument
that a possible error in refusing to re-appoint counsel was a “structural error” requiring reversal
no matter how harmless it may have been because the Supreme Court “has not spoken on
whether a trial court’s error in ruling on a reappointment request is structural or trial error” and
thus “[t]his silence compels us to defer to the state court’s reasonable attempts to fill the void”).
Moreover, the state court’s harmless finding was reasonable in light of the record and “the threat
of harm involved, the callousness of [Hunt’s] acts, and the planning and sophistication of
[Hunt’s] actions.” Hunt, 2015 WL 534583, at *11. Because the state courts’ adjudication of this
claim does not unreasonably apply or contravene federal law, Hunt is not entitled to relief on any
argument advanced in support of this claim.
Judicial misconduct/instructional error
Finally, Hunt claims that the trial judge committed misconduct by instructing the jury
that discovery did not apply to the restraining order proceedings. According to Hunt, that
instruction deprived him of his constitutional right to present a complete defense because it
foreclosed his argument at trial that he was conducting discovery when he contacted Lemke after
the issuance of the temporary restraining order.
The record indicates that, after Hunt was served with the temporary restraining order, he
sent Lemke three letters. Hunt testified that he sent the letters for the purpose of discovery in
preparation for the hearing on the injunction after he researched restraining orders and discovery
rules pursuant to the rules of California Civil Procedure. The prosecutor objected on the ground
of relevance, and the trial court allowed Hunt to testify about his research, but limited the
testimony in order to prevent jury confusion. Thereafter, the court told the jury to disregard the
parties’ versions of the law if such version conflicted with the court’s instructions. In response
to the prosecutor’s objection to Hunt’s testimony that he researched the discovery rules, the court
sustained the objection and instructed the jury that “[d]iscovery does not apply in a restraining
order matter like this.” The court further struck from the record Hunt’s subsequent statement
expressing disagreement with the court’s instruction.
On direct appeal, the Court of Appeal rejected Hunt’s claim, noting that there was no
provision for discovery in California Civil Procedure Code § 527.6 proceedings, which involve
temporary restraining orders and injunctions prohibiting harassment. This Court is bound by the
state court’s interpretation of California state law. Bradshaw v. Richey, 546 U.S. 74, 76 (2005)
(per curiam) (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”). Hunt cites to no authority of the U.S. Supreme Court
that contradicts this state court holding, and the Court is unaware of any. In the absence of such
authority, AEDPA relief is foreclosed. See Carey, 549 U.S. at 77. Hunt is thus not entitled to
relief on this ground either.
V. CONCLUSION AND ORDER
Hunt 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 grants a Certificate of Appealability
solely with respect to Hunt’s claim that the evidence was insufficient to support his convictions
(Ground 2). See 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)). Any further request for a Certificate of Appealability must be addressed to the
Ninth Circuit Court of Appeals. See FED. R. APP. P. 22(b); 9TH CIR. R. 22-1.
The Clerk of the Court is to enter judgment accordingly.
Dated: April 10, 2018.
/s/James K. Singleton, Jr.
JAMES K. SINGLETON, JR.
Senior United States District Judge
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