Bjorn v. Adams

Filing 27

ORDER DENYING PETITION FOR WRIT OF HABEAS CORPUS. Signed by Judge Jeffrey S. White on 9/28/11. (jjoS, COURT STAFF) (Filed on 9/28/2011)

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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United States District Court
For the Northern District of California

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SAN FRANCISCO DIVISION

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LEE THOMAS BJORN,

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Petitioner,

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No. C 09-2630 JSW (PR)
ORDER DENYING PETITION FOR
WRIT OF HABEAS CORPUS

v.
D. ADAMS, Warden,
Respondent.
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INTRODUCTION
This is a federal habeas corpus action filed pursuant to 28 U.S.C. § 2254 by a pro se
state prisoner. For the reasons set forth below, the petition is DENIED.

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BACKGROUND

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In 2004, a Santa Cruz County Superior Court jury found petitioner guilty of nine

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counts of lewd and lascivious conduct with a child under 14, and the trial court sentenced

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petitioner to a total term of twenty-four years in state prison. Evidence presented at trial

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shows that between 1988 and 1991, petitioner sexually molested a nine-year old girl, L., the

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daughter of petitioner’s co-worker. As grounds for federal habeas relief, petitioner alleges

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that (1) his conviction violates the Ex Post Facto Clause; and (2) the imposition of the upper-

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term sentence violates his Sixth Amendment rights.
STANDARD OF REVIEW

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This Court may entertain a petition for writ of habeas corpus “in behalf of a person in

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custody pursuant to the judgment of a State court only on the ground that he is in custody in

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violation of the Constitution or laws or treaties of the United States.” 28 U.S.C. § 2254(a).

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The petition may not be granted with respect to any claim that was adjudicated on the merits

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in state court unless the state court’s adjudication of the claim: “(1) resulted in a decision

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that was contrary to, or involved an unreasonable application of, clearly established Federal

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United States District Court
For the Northern District of California

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law, as determined by the Supreme Court of the United States; or (2) resulted in a decision

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that was based on an unreasonable determination of the facts in light of the evidence

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presented in the State court proceeding.” 28 U.S.C. § 2254(d).

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“Under the ‘contrary to’ clause, a federal habeas court may grant the writ if the state

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court arrives at a conclusion opposite to that reached by [the Supreme] Court on a question of

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law or if the state court decides a case differently than [the] Court has on a set of materially

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indistinguishable facts.” Williams (Terry) v. Taylor, 529 U.S. 362, 412–13 (2000). “Under

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the ‘unreasonable application’ clause, a federal habeas court may grant the writ if the state

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court identifies the correct governing legal principle from [the] Court’s decision but

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unreasonably applies that principle to the facts of the prisoner’s case.” Id. at 413. “[A]

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federal habeas court may not issue the writ simply because that court concludes in its

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independent judgment that the relevant state-court decision applied clearly established

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federal law erroneously or incorrectly. Rather, that application must also be unreasonable.”

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Id. at 411. A federal habeas court making the “unreasonable application” inquiry should ask

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whether the state court’s application of clearly established federal law was “objectively

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unreasonable.” Id. at 409.

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DISCUSSION

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I.

Ex Post Facto Clause

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Petitioner claims that the criminal proceedings commenced after the statute of

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limitations period expired, therefore rendering his conviction constitutionally invalid. The

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relevant facts are as follows. Petitioner’s crimes were committed between 1989 and 1991.

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(Ans., Ex. K at 2.) In 1991, L. reported the sexual abuse to Arizona law enforcement. (Id. at

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3.) In 2000, she reported the sexual abuse to California law enforcement. (Id. at 5.) A

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California felony complaint was filed within one year after that. (Id. at 7.)
Petitioner was charged under the extended statute of limitations under California

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United States District Court
For the Northern District of California

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Penal Code § 803(g) (“Tolling or extension of time periods”), which, at the time of

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petitioner’s conviction, provided that “a criminal complaint may be filed within one year of

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the date of a report to a California law enforcement agency by a person of any age alleging

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that he or she, while under the age of 18 years, was the victim of a crime [specified in the

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statute].” Prior to 1997, “California” did not appear in the statute.
Petitioner contends that at the time he committed the crimes, the one-year extension

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started on the date the victim reported the crime to any state law enforcement agency, not just

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to California ones. Because L. first reported the crimes in 1991, prior to the 1997 addition of

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“California,” the one-year extension expired well before the California felony complaint was

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filed in 2000. (Id. at 6–7.) Therefore, his conviction, petitioner asserts, violates the Ex Post

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Facto Clause.
The state appellate court did not agree. That court found that the pre-1997 § 803(g)

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referred only to California law enforcement agencies. (Id. at 10.) Such determination is

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dispositive of petitioner’s claim because this Court is bound by a state court’s interpretation

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of its state’s law. See Bradshaw v. Richey, 546 U.S. 74, 76 (2005). Accordingly, petitioner’s

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claim is DENIED.

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II.

Sentence
Petitioner claims that his sentence violates his Sixth Amendment rights as those rights

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are established in Apprendi v. New Jersey, 530 U.S. 466 (2000), and its progeny, which

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require that any fact used to increase a sentence beyond the statutory maximum must be

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submitted to a jury and found true beyond a reasonable doubt. The facts relevant to

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petitioner’s claim are as follows:

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United States District Court
For the Northern District of California

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For purposes of determining whether to impose upper terms, the court
instructed the jury to make findings on special allegations concerning
potentially aggravating circumstances surrounding the commission of the
offenses: whether (1) [petitioner] occupied a position of trust with respect to
L.; (2) [petitioner] engaged in a plan to commit the charged offenses; and
(3) L. was a particularly vulnerable victim.

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(Ans., Ex. K at 35.) Petitioner contends that the jury was not instructed that it had to find the

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special allegations true beyond a reasonable doubt.

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The state appellate court rejected this claim because the jury had been instructed
properly:
The trial court gave CALJIC No. 2.90, advising jurors that a defendant is
presumed innocent until the contrary is proved, and the presumption places
upon the prosecution the burden to prove guilt beyond a reasonable doubt. As
noted, the sentencing allegations here involved circumstances naturally and
closely related to the commission of the offenses that were not themselves
elements of the offenses. Indeed, the factual bases for the elements of the
offenses, which the jury found beyond a reasonable doubt, and the undisputed
evidence concerning L.’s age at the time of the offenses and [petitioner]’s
relationship to her unquestionably establish that [petitioner] occupied a position
of trust, planned his offenses, and took advantage of a particularly vulnerable
— i.e., young-victim.
Given the close identity between the factual bases for the elements of the
offenses and the factual bases for the special allegations and the jury’s findings
and verdict, we do not find a reasonable likelihood that in finding [petitioner]
guilty, the jurors applied a lesser standard in determining the special allegation
than it applied in determining the elements of the offenses themselves. Rather,
we find that “the omission . . . was nonprejudicial since the court otherwise
instructed on reasonable doubt.” [Citation removed.]
[Petitioner] notes that the court instructed the jury that it could consider
evidence that [petitioner] committed other sexual offenses [on victims other
than L.] for certain purposes, if it found by a preponderance of the evidence
that the [petitioner] committed the other offenses.” [Reference omitted.] He
notes that the court also instructed the jury that it could use the other sexual
offenses to corroborate L.’s allegations, if it found that there was “clear and
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United States District Court
For the Northern District of California

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convincing proof “ of those offenses. (Italics added.) The court also defined
preponderance of the evidence and clear and convincing proof. (See CALJIC
No. 2.50.2.)
[Petitioner] argues that these instructions conflicted with the reasonable doubt
instruction and confused the jury concerning the standard applicable to the
special sentencing allegations. However, the instructions that employed the
preponderance-of-the-evidence and clear-and-convincing-evidence standards
were both expressly limited to the use of one type of evidence in a narrow and
specific context: determining whether [petitioner] committed other sexual
offenses so that evidence of those other offenses could be considered for other
purposes. Only the court’s reasonable-doubt instruction directly and expressly
related to whether [petitioner] engaged in the conduct underlying the criminal
charges against him. Consequently, we do not find a reasonable likelihood that
the other instructions confused the jury and led it to apply a lesser standard to
the special allegations.
(Id. at 36–28.)
Petitioner has not shown that his constitutional rights were violated. First, the
reasonable doubt instruction had general application, and was deviated from only in clearly
specified instances, and not in the case of the special allegations. More specifically, the
preponderance instructions were clearly limited to the jury’s determination whether
petitioner committed other sexual offenses, Ans., Ex. A at 674–75, and the clear and
convincing instructions were limited to determining the sufficiency of corroborating
evidence, id. at 689–90, while the reasonable doubt instructions applied to the jury’s
determination whether he committed the acts giving rise to the current criminal charges, id. at
684. Second, as the state appellate court reasonably determined, the similarity between the
elements of the offenses and the special allegations dispelled any likelihood that the jury
applied a lesser standard of proof. The record being such, there is nothing to indicate that the
jury used anything other than the correct standard of proof. Accordingly, petitioner’s claim
is DENIED.
CONCLUSION
The state court’s adjudication of the claim did not result in a decision that was
contrary to, or involved an unreasonable application of, clearly established federal law, nor
did it result in a decision that was based on an unreasonable determination of the facts in
light of the evidence presented in the state court proceeding. Accordingly, the petition is
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DENIED.
A certificate of appealability will not issue. Reasonable jurists would not “find the

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district court’s assessment of the constitutional claims debatable or wrong.” Slack v.

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McDaniel, 529 U.S. 473, 484 (2000). Petitioner may seek a certificate of appealability from

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the Court of Appeals. The Clerk shall enter judgment in favor of respondent and close the

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file.

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IT IS SO ORDERED.

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DATED: September 28, 2011
JEFFREY S. WHITE
United States District Judge

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United States District Court
For the Northern District of California

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UNITED STATES DISTRICT COURT

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FOR THE

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NORTHERN DISTRICT OF CALIFORNIA

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LEE T BJORN,

Case Number: CV09-02630 JSW

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Plaintiff,

CERTIFICATE OF SERVICE

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v.
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United States District Court
For the Northern District of California

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WARDEN et al,
Defendant.

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I, the undersigned, hereby certify that I am an employee in the Office of the Clerk, U.S.
12 District Court, Northern District of California.
13 That on September 28, 2011, I SERVED a true and correct copy(ies) of the attached, by
placing said copy(ies) in a postage paid envelope addressed to the person(s) hereinafter
14 listed, by depositing said envelope in the U.S. Mail, or by placing said copy(ies) into an
inter-office delivery receptacle located in the Clerk's office.
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16 Lee Thomas Bjorn
Prisoner Id V-50565
17 P.O. Box 368
Chino, CA 91708
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Dated: September 28, 2011
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Richard W. Wieking, Clerk
By: Jennifer Ottolini, Deputy Clerk