Green v. Knipp

Filing 17

ORDER OF DISMISSAL WITH LEAVE TO AMEND 11 13 (Illston, Susan) (Filed on 11/14/2012) (Additional attachment(s) added on 11/14/2012: # 1 Certificate/Proof of Service) (tfS, COURT STAFF).

1
2
3
4
5
6
7

UNITED STATES DISTRICT COURT

8

NORTHERN DISTRICT OF CALIFORNIA

9
10

MICHAEL GREEN
a/k/a KEVIN BREWER
11 (CDCR # AC5033),
United States District Court
For the Northern District of California

12
13
14
15
16

No. C 12-1689 SI (pr)
ORDER OF DISMISSAL WITH
LEAVE TO AMEND

Petitioner,
v.
WILLIAM KNIPP, warden,
Respondent.
/

17
18
19

INTRODUCTION

20

Michael Green a/k/a Kevin Brewer filed this action for a writ of habeas corpus pursuant

21

to 28 U.S.C. § 2254. Upon reviewing his amended petition, the court ordered him to file a

22

second amended petition to correct certain deficiencies. Brewer then filed a second amended

23

petition, a motion to appoint counsel, and a motion for a stay so he could return to state court to

24

exhaust additional claims. Before the court ruled on his motion for a stay, he filed a document

25

indicating that he had completed his state court exhaustion efforts. His two motions are now

26

before the court for consideration, and his second amended petition is now before the court for

27

review pursuant to 28 U.S.C. §2243 and Rule 4 of the Rules Governing Section 2254 Cases.

28

BACKGROUND

1
2

The second amended petition and other documents filed by Brewer provide the following

3

information. Following a jury trial at which he represented himself, Brewer was convicted in

4

Alameda County Superior Court of continuous sexual abuse of a child and aggravated sexual

5

assault on a child. He admitted allegations that he had prior convictions and prior prison terms.

6

He was sentenced to a total of 61 years to life in prison.

7

Brewer appealed. On February 1, 2011, the California Court of Appeal affirmed the

8

conviction, with a modification of Brewer's sentence to include presentence conduct credits. His

9

petition for review was denied by the California Supreme Court on May 11, 2011. Brewer

10

apparently filed several unsuccessful state court collateral challenges to his conviction.

11
12
13

DISCUSSION
A.

Motions

14

Brewer filed a motion for a stay of the proceedings so that he could return to state court

15

to exhaust some issues. Before the court ruled on the motion, Brewer filed a "petition to

16

proceed," indicating that the denial of his petition for writ of error coram vobis in the California

17

Supreme Court had concluded his state court activities. (Docket # 15.) The motion for a stay

18

is DENIED as moot because Brewer apparently has now exhausted his state court remedies and

19

is ready to proceed. (Docket # 11.)

20

Brewer filed a second motion for appointment of counsel. A district court may appoint

21

counsel to represent a habeas petitioner whenever "the court determines that the interests of

22

justice so require" and such person is financially unable to obtain representation. 18 U.S.C. §

23

3006A(a)(2)(B). The decision to appoint counsel is within the discretion of the district court.

24

See Chaney v. Lewis, 801 F.2d 1191, 1196 (9th Cir. 1986). Appointment is mandatory only

25

when the circumstances of a particular case indicate that appointed counsel is necessary to

26

prevent due process violations. See id. The interests of justice do not require appointment of

27

counsel. The second motion for appointment of counsel therefore is DENIED. (Docket # 13.)

28
2

1

B.

Review of Second Amended Petition

2

This court may entertain a petition for writ of habeas corpus "in behalf of a person in

3

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

4

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

5

district court considering an application for a writ of habeas corpus shall "award the writ or issue

6

an order directing the respondent to show cause why the writ should not be granted, unless it

7

appears from the application that the applicant or person detained is not entitled thereto." 28

8

U.S.C. § 2243. Summary dismissal is appropriate only where the allegations in the petition are

9

vague or conclusory, palpably incredible, or patently frivolous or false. See Hendricks v.

10

Vasquez, 908 F.2d 490, 491 (9th Cir. 1990).

11

The second amended petition alleges the following claims: (1) the evidence was

12

insufficient to support the conviction for continuous sexual abuse of a child, in that there was

13

insufficient evidence that the acts occurred in the applicable time period; (2) the evidence was

14

insufficient to support the conviction of aggravated sexual assault of a child, in that the evidence

15

was insufficient that Brewer accomplished the assault with sufficient force; (3) Brewer's Sixth

16

Amendment right to jury trial and fair notice of the crimes charged was violated in that (a) he

17

received multiple punishments for the same sexual offenses pertaining to the same victim over

18

the same time period, (b) his sentence was enhanced on the basis of a statute that was not in

19

existence at the time of the offense, and (c) the criminal complaint was amended;1 (4) the

20

accusatory pleading was defective (and counsel should have demurred to it as being defective)

21

because Brewer was in custody during part of the time period alleged in the charge of continuous

22

sexual abuse of a child; (5) counsel provided ineffective assistance in failing to conduct a

23

reasonable pre-trial investigation; (6) the denial of Brewer's requests for appointment of counsel

24

(in place of self-representation) on the day set for trial and a week later violated his Sixth

25

Amendment right to counsel; (7) his rights to due process, to present a defense, and to confront

26
27
28

1

Claim 3 in the petition is far from clear, and the court has attempted to state it in a more
coherent manner.
3

1

witnesses were violated when the trial court restricted his cross-examination of a key prosecution

2

witness and restricted evidence that the victim previously had made a false accusation of

3

molestation; and (8) Brewer's conviction was obtained as a result of outrageous government

4

misconduct, discriminatory enforcement of the law, prosecutorial vindictiveness, and

5

prosecutorial misconduct; there were discovery violations; and he is innocent. Liberally

6

construed, Claims 1-3, 6, and 7 are cognizable and warrant a response.

7

A response will not be required to Claim 4 because it is patently meritless. In Claim 4,

8

Brewer urges that his incarceration on certain days meant that he could not have committed the

9

sex abuse of the child on those days. The fact that Brewer may have been in custody on some

10

of the days during the time period alleged in the charge of continuous sexual abuse of a child

11

does not make the accusatory pleading deficient because daily and uninterrupted physical contact

12

with the victim was not an element of either crime. He was charged with one count of

13

continuous sexual abuse of a child under 14, see Cal. Penal Code § 288.5(a), alleged to have

14

occurred between January 19, 1996 and January 18, 2002. He also was charged with one count

15

of aggravated sexual assault on a child under 14, see Cal. Penal Code § 269(a)(1), alleged to

16

have occurred between January 19, 2002 and January 18, 2004. See Second Amended Petition,

17

Exhibit B. Neither of those counts required that he commit the act on each and every day of the

18

date period alleged. For example, although called "continuous" sexual abuse, § 288.5 defines

19

the offense as "engag[ing] in three or more acts of substantial sexual conduct" "over a period of

20

time, not less than three months in duration." Cal. Penal Code § 288.5(a). Brewer's absence on

21

some of the days within the range of dates during which the crimes allegedly occurred was not

22

a complete defense to either of the charges against him. Counsel's failure to challenge the

23

accusatory pleading on the ground that petitioner was in custody on some of the days during the

24

alleged period was not ineffective assistance of counsel. See Rupe v. Wood, 93 F.3d 1434, 1445

25

(9th Cir. 1996) (trial counsel does not engage in deficient performance in failing to raise a

26

meritless motion). Claim 4 is dismissed without leave to amend.

27

Claim 8 makes several conclusory allegations but offers no supporting facts. The habeas

28
4

1

rule instructs the petitioner to “specify all the grounds for relief available to [him]” and to “state

2

the facts supporting each ground.” Rule 2(c), Rules Governing Section 2254 Cases in the United

3

States District Courts; see also Hendricks v. Vasquez, 908 F.2d 490, 491-92 (9th Cir. 1990)

4

(habeas petitioner must state his claims with sufficient specificity); Wacht v. Cardwell, 604 F.2d

5

1245, 1246-47 (9th Cir. 1979) (same). A primary purpose of Rule 2(c)’s demand that habeas

6

petitioners plead with particularity is to assist the district court in determining whether the state

7

should be ordered to show cause why the writ should not be granted. Mayle v. Felix, 545 U.S.

8

644, 655-56 (2005) (citing 28 U.S.C. § 2253). Conclusory allegations in a habeas petition fail

9

to state a claim and do not suffice to shift the burden to the state to answer an order to show

10

cause. See Allard v. Nelson, 423 F.2d 1216, 1217 (9th Cir. 1970). Brewer will be given leave

11

to amend to file an amendment to his second amended petition that states the facts supporting

12

his conclusory allegations of constitutional violations in Claim 8. For example, he must describe

13

the specific acts or omissions of the prosecutor that amounted to prosecutorial misconduct. As

14

another example, he must describe the evidence that was not produced and explain why that

15

evidence was material for his claim that there was a Brady violation.

16

In his second amended petition, Brewer alleges that his state law rights (as well as his

17

federal constitutional rights) were violated. A federal court may only consider claims for

18

violations of a habeas petitioner's rights under the constitution, laws or treaties of the United

19

States, see 28 U.S.C. § 2254(a), and cannot consider claims for violations of state law because

20

federal habeas relief is not available for state law errors. See Swarthout v. Cooke, 131 S. Ct.

21

859, 861 (2011) (citations omitted). The state law claims are dismissed without leave to amend.

22

Finally, the court notes that Brewer's second amended petition is not a model of clarity.

23

The court has listed what it believes are the constitutional claims that Brewer is attempting to

24

allege. If Brewer disagrees with the court's listing or any part of it, he must inform the court in

25

the amendment described in the next section.

26
27
28
5

CONCLUSION

1
2

The second amended petition states several claims for federal habeas relief. However,

3

Claim 8 must be amended because it does not adequately allege any claim for federal habeas

4

relief. No later than December 14, 2012, Brewer must file an amendment in which he describes

5

the facts supporting the allegations of Claim 8. (The use of an amendment, rather than a third

6

amended petition, is requested because he only needs to provide additional allegations about this

7

one claim; the amendment will be read in conjunction with the second amended petition.) His

8

amendment must allege the violation of one or more federal constitutional rights and must state

9

the facts showing the alleged violation(s). If Brewer does not file an amendment, or the

10

amendment he files does not cure the deficiencies identified in this order, Claim 8 will be

11

dismissed. After the Claim 8 pleading problems are resolved, the court will issue a scheduling

12

order for briefing on the claims in the second amended petition.

13

IT IS SO ORDERED.

14

DATED: November 14, 2012
SUSAN ILLSTON
United States District Judge

15
16
17
18
19
20
21
22
23
24
25
26
27
28
6