Jenkins v. Vasquez
Filing
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ORDER Denying Petition for Writ of Habeas Corpus. Signed by Judge Edward M. Chen on 12/6/2013. (Attachments: # 1 Certificate/Proof of Service). (emcsec, COURT STAFF) (Filed on 12/6/2013)
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UNITED STATES DISTRICT COURT
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NORTHERN DISTRICT OF CALIFORNIA
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EDWARD CHARLES JENKINS,
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Petitioner,
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v.
ORDER DENYING PETITION FOR
WRIT OF HABEAS CORPUS
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For the Northern District of California
United States District Court
No. C-12-3054 EMC (pr)
P. L. VASQUEZ (Warden),
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Respondent.
___________________________________/
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I.
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INTRODUCTION
Edward Charles Jenkins, a state prisoner at High Desert State Prison, has filed a pro se
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petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254 challenging his 2011 conviction on
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two counts of failing to register as a sex offender within five days of moving and one count of failing
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to notify law enforcement of a change of address and the resulting sentence. The petition is now
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ready for a decision on the merits. For the reasons discussed below, the petition is DENIED.
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II.
A.
BACKGROUND
The Crimes
The California Court of Appeal summarized the evidence of the crimes presented at trial:
Jenkins was at a homeless shelter when he met his girlfriend, Jennifer
Garcia. After Garcia obtained a Section 8 housing voucher, Jenkins
helped her move in to an apartment located at 460 South Fourth Street
in San Jose. Garcia said Jenkins was merely a frequent visitor at her
apartment, coming over at 3:00 or 4:00 a.m. and leaving around 7:00
or 8:00 a.m. to go to the Salvation Army or look for work. He would
only sleep for two or three hours because “he knew he didn’t live
there.” Jenkins did not have keys to the apartment, he did not pay
utilities and he was not listed on the rental contracts. Garcia admitted
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that she was not permitted to live with a registered sex offender as a
Section 8 voucher recipient. She allowed Jenkins to use her apartment
as a storage unit and to receive his mail. He also sometimes cooked
for her and shopped for groceries. Though she denied that he lived
with her, Garcia said other people believed he did because of the many
police calls to the premises.
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A neighbor, Mary Williams, said she believed that Jenkins had moved
in with Garcia because she had seen him move his belongings into the
apartment and she saw him at the apartment complex both day and
night. Williams often heard Jenkins arguing loudly with Garcia and
heard him refer to Garcia’s apartment as his residence. She also saw
him drinking 40–ounce beers at the apartment daily and he often
appeared to be under the influence of alcohol.
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For the Northern District of California
United States District Court
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San Jose Police Officer Lee Lawrence responded to a late-night call at
460 South Fourth Street and contacted Jenkins, who appeared
intoxicated, and was standing in front of the building. Jenkins
admitted he had been drinking and was drunk, so Lawrence took him
into custody for public intoxication.
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On May 24, 2010, Jenkins helped Garcia move to a new apartment
located at 520 South Willard Street in San Jose. Jenkins did not have
keys to this apartment, was not listed on the rental contracts and did
not pay utilities. However, photographs of the apartment’s interior
showed Jenkins’ clothing, shoes, toiletries and business records.
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San Jose Police Officer Keith Aldinger responded to a call at 520
South Willard Street on May 29, 2010, at about 10:00 p.m. and found
Jenkins and Garcia arguing. Jenkins appeared to be “extremely
intoxicated” and was yelling that “[s]ome fucking ... white bitch
knocked on my door and asked for cigarettes.” On May 31, 2010,
Aldinger responded to another call to 520 South Willard Street, and
again found Jenkins to be loud, agitated and extremely intoxicated.
Aldinger arrested Jenkins for disturbing the peace and public
intoxication.
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Jenkins advised Aldinger he was a sex offender registered as a
transient. Based on the multiple calls, Aldinger suspected Jenkins was
residing with Garcia and spoke to the neighbors, who said they
believed Jenkins was living at the apartment.
Diana Ortega, who also lived at the apartments at 520 South Willard
Street, said Jenkins drank and was disrespectful toward the other
tenants at the complex. He only left the premises to “go get the
alcohol.” Another neighbor, Andrew Hunt, said he saw Jenkins at the
premises “[p]retty much every day ... day and night.” Hunt only heard
Jenkins describe the apartment as “his lady’s apartment,” though Hunt
believed Jenkins was sleeping there since his personal belongings
were in the apartment.
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A neighbor at 518 South Willard Street, Jolene Rieken, said Jenkins
was at the complex daily and cooked a meal for her and her children at
Garcia’s apartment on one occasion. Jenkins and Garcia would
frequently have loud arguments, even in the middle of the night, and
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she saw him every morning at the apartment. Jenkins said that the
apartment was his, as was everything inside it, and that Garcia would
have “nothing without him.”
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Francis Gallegos, an analyst from the San Jose Police Department’s
sex offender registration unit, confirmed that the registration form
requires those claiming a residential address to provide proof of
residence, whereas transients are to state the areas they frequent.
Proof of residence could include mail from the county, state or federal
government to a particular address, or a California driver’s license,
California state identification, recent utility bills, etc. Gallegos
confirmed that Jenkins registered at residential addresses as required
until April 3, 2009, and from that date on he registered as a transient.
Jenkins never registered as a resident at either 460 South Fourth Street
or 520 South Willard Street.
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People v. Jenkins, 2012 WL 210371 *1-2 (Cal. App. 6 Dist. 2012) (footnote omitted).
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For the Northern District of California
United States District Court
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B.
Procedural History
At a jury trial in Santa Clara County Superior Court, Jenkins was found guilty of two counts
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of failing to register as a sex offender within five days of moving to a new address (Pen. Code, §
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290.011(b)) and one count of failing to notify law enforcement of a change of address (§ 290(b)).
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Reporter’s Transcript (“RT”) at 507-08. At a bifurcated bench trial, the trial court found Jenkins had
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six prior strike convictions. Clerk’s Transcript (“CT”) at 237-40, 333-34. On June 17, 2011, the
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trial court sentenced him to seven years and four months in prison, after striking five of petitioner’s
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six strike findings. RT at 530-32; CT at 431.
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Jenkins timely appealed. The California Court of Appeal affirmed Jenkins’ judgment and
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denied his habeas petition. Jenkins did not file a petition for review with the California Supreme
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Court. However, he later file a habeas petition with the California Supreme Court that was denied.
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Jenkins then filed his federal petition for writ of habeas corpus. The Court issued an order to show
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cause why the petition should not be granted. Respondent has filed an answer and Jenkins filed a
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traverse. The matter is ready for a decision on the merits.
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III.
STANDARD OF REVIEW
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). The
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Antiterrorism And Effective Death Penalty Act of 1996 (“AEDPA”) amended § 2254 to impose new
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restrictions on federal habeas review. A petition may not be granted with respect to any claim that
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was adjudicated on the merits in state court unless the state court’s adjudication of the claim:
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“(1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly
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established Federal law, as determined by the Supreme Court of the United States; or (2) resulted in
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a decision 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 court
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arrives at a conclusion opposite to that reached by [the Supreme] Court on a question of law or if the
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state court decides a case differently than [the] Court has on a set of materially indistinguishable
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For the Northern District of California
United States District Court
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facts.” Williams (Terry) v. Taylor, 529 U.S. 362, 412-13 (2000).
“Under the ‘unreasonable application’ clause, a federal habeas court may grant the writ if the
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state 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] federal
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habeas court may not issue the writ simply because that court concludes in its independent judgment
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that the relevant state-court decision applied clearly established federal law erroneously or
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incorrectly. Rather, that application must also be unreasonable.” Id. at 411. A federal habeas court
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making the “unreasonable application” inquiry should ask whether the state court’s application of
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clearly established federal law was “objectively unreasonable.” Id. at 409.
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The standard of review under AEDPA is somewhat different where the state court gives no
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reasoned explanation of its decision on a petitioner’s federal claim and there is no reasoned lower
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court decision on the claim. In such a case, which applies to all the claims Petitioner raises here, a
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review of the record is the only means of deciding whether the state court’s decision was objectively
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reasonable. Himes v. Thompson, 336 F.3d 848, 853 (9th Cir. 2003); Delgado v. Lewis, 223 F.3d
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976, 981-82 (9th Cir. 2000). When confronted with such a decision, a federal court should conduct
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an independent review of the record to determine whether the state court’s decision was an
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objectively unreasonable application of clearly established federal law. Himes, 336 F.3d at 853;
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Delgado, 223 F.3d at 982.
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IV.
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DISCUSSION
Jenkins argues that: (1) his federal due process rights were violated by improper jury
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instructions; (2) he was incorrectly charged; (3) his trial counsel was ineffective; and (4) he was
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sentenced to an unlawful and unauthorized prison term. The Court will address each claim in turn.
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A.
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Jury Instructions
Jenkins argues that his federal due process rights were violated by the improper jury
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instructions regarding certain counts, the definition of ‘willful’ and with respect to the duty to
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register as a sex offender.
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A challenge to a jury instruction solely as an error under state law does not state a claim
cognizable in federal habeas corpus proceedings. See Estelle v. McGuire, 502 U.S. 62, 71-72
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For the Northern District of California
United States District Court
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(1991). See, e.g., Stanton v. Benzler, 146 F.3d 726, 728 (9th Cir. 1998) (state law determination that
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arsenic trioxide is a poison as a matter of law, not element of crime for jury determination, not open
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to challenge on federal habeas review). Nor does the fact that a jury instruction was inadequate by
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Ninth Circuit direct appeal standards mean that a petitioner who relies on such an inadequacy will be
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entitled to habeas corpus relief from a state court conviction. See Duckett v. Godinez, 67 F.3d 734,
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744 (9th Cir. 1995) (citing Estelle, 502 U.S. at 71-72).
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To obtain federal collateral relief for errors in the jury charge, a petitioner must show that the
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ailing instruction by itself so infected the entire trial that the resulting conviction violates due
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process. See Estelle v. McGuire, 502 U.S. at 72; see also Donnelly v. DeChristoforo, 416 U.S. 637,
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643 (1974) (“‘[I]t must be established not merely that the instruction is undesirable, erroneous or
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even “universally condemned,” but that it violated some [constitutional right].’”). The instruction
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may not be judged in artificial isolation, but must be considered in the context of the instructions as
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a whole and the trial record. See Estelle, 502 U.S. at 72. In other words, the court must evaluate
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jury instructions in the context of the overall charge to the jury as a component of the entire trial
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process. United States v. Frady, 456 U.S. 152, 169 (1982) (citing Henderson v. Kibbe, 431 U.S.
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145, 154 (1977)).
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Jenkins’ specific argument is difficult to discern. He states there were improper jury
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instructions regarding the Penal Code § 290.011(b) offenses, the duty to register and the definition
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of ‘willful’. Petition at 5. He offers very little in support of this claim and to the extent there was
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any error in state law, he is not entitled to relief. See Estelle, 502 at 71-72. A review of the jury
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instructions cited by Jenkins does not reveal any error, let alone an error that infected the entire trial
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and violated due process. With respect to the § 290.011(b) offenses, the jury was instructed with
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CALCRIM No. 1170 that stated:
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The defendant is charged in count one with failing to register as a sex
offender. To prove that the defendant is guilty of this crime the
defendant [sic] must prove that, one, the defendant committed oral
copulation by force.
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Two, the defendant resided in San Jose, California,
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Three, the defendant was registered as a transient.
Four, the defendant actually knew he had a duty under Penal Code
section 290 to register as sex offender within five working days, every
residence at which he regularly . . . resided regardless of the number of
days or nights spent there.
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For the Northern District of California
United States District Court
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And, five, the defendant willfully failed to register as a sex offender
with the chief of police of the City of San Jose within five working
days of changing his residence.
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RT at 456-57; CT at 301-02.
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The court then instructed on the definition of willfully, transient and residence. RT at 457.
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Jenkins does not specifically describe what is erroneous about this jury instruction and it correctly
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reflects the elements of § 290.011(b)1. To the extent that Jenkins argues he did not have a duty to
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register, that argument is contradicted by a plain reading of § 290.011(b). Nor is there any error for
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the failure to instruct on other subdivisions of § 290.011 that were not applicable in this case. Even
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if the trial court should have instructed on non-applicable aspects of the statute any error was
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harmless.
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With respect to the definition of ‘willful’ the jury was instructed that, “someone commits an
act willfully when he does it willingly or on purpose and with knowledge of the duty to register
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Section 290.011(b) states: A transient who moves to a residence shall have five working
days within which to register at that address, in accordance with subdivision (b) of Section 290. A
person registered at a residence address in accordance with that provision who becomes transient
shall have five working days within which to reregister as a transient in accordance with subdivision
(a).
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pursuant to penal code section 290.” RT at 457-58. Jenkins provides no explanation how this
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instruction was an error and it appears adequate. Nor is it clear how it could have violated due
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process. Unsupported and “[c]onclusory allegations which are not supported by a statement of
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specific facts do not warrant habeas relief.” James v. Borg, 24 F.3d 20, 26 (9th Cir. 1994). This
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claim will be denied as there was no violation of due process with respect to these jury instructions.2
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B.
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Charges
Jenkins argues that the prosecution used the wrong section of the penal code to charge him
regarding a count in this case.
The decision whether to prosecute as well as the determination of the charge to be filed, rests
solely in the discretion of the prosecutor. See United States v. LaBonte, 520 U.S. 751, 762 (1997)
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For the Northern District of California
United States District Court
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(“[T]he discretion a prosecutor exercises when he decides what, if any, charges to bring against a
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criminal suspect ... is an integral feature of the criminal justice system, and is appropriate, so long as
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it is not based upon improper factors.”); United States v. Batchelder, 442 U.S. 114, 124 (1979)
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(holding that the prosecutor has discretion to choose the statute under which the defendant is
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charged). “Courts generally have no place interfering with a prosecutor’s discretion regarding
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whom to prosecute, what charges to file, and whether to engage in plea negotiations.” United States
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v. Banuelos–Rodriguez, 215 F.3d 969, 976 (9th Cir. 2000) (en banc).
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Jenkins argues that he was unlawfully charged in count three with Penal Code § 290(b), but
should have been charged with Penal Code § 290.013. Count three stated:
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On or about June 6, 2010, in the County of Santa Clara, State of
California the crime of FAILURE TO INFORM LAW
ENFORCEMENT AGENCY OF NEW ADDRESS - BASED ON A
FELONY CONVICTION AND A JUVENILE ADJUDICATION, in
violation of PENAL CODE SECTION 290(b), a Felony, was
committed by EDWARD CHARLES JENKINS, who did, while
required to register under Penal Code section 290 based on a felony
conviction and a juvenile adjudication, a violation of section 286(c) of
the Penal Code, in the Superior Court, Santa Clara County (78503),
California, change his or her residence address(es), and willfully failed
to register within 5 working days, the San Jose Police Department, the
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To the extent Jenkins argues there was not sufficient evidence of certain elements of these
offenses, that is a separate claim that he has not been brought in state or federal court and is not
connected to the adequacy of the jury instructions in this case.
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law enforcement agency with which he or she last registered of his or
her new address(es) and location(s).
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CT at 238 (capitals and strikeouts in original).
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Jenkins argues that he should have been charged with Penal Code § 290.013 which provides:
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(a) Any person who was last registered at a residence address pursuant
to the Act who changes his or her residence address, whether within
the jurisdiction in which he or she is currently registered or to a new
jurisdiction inside or outside the state, shall, in person, within five
working days of the move, inform the law enforcement agency or
agencies with which he or she last registered of the move, the new
address or transient location, if known, and any plans he or she has to
return to California.
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Cal. Penal Code § 290.013.
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For the Northern District of California
United States District Court
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While Penal Code § 290.013 could apply to Jenkins, it is well within the discretion of the
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prosecution on how to charge a defendant. Jenkins has made no allegations that the prosecution’s
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decision to charge him was due to any inappropriate reason that could rise to a constitutional
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violation.3 Based on Jenkins state habeas petition, it appears he is arguing that because he was
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already residing in Santa Clara County and did not move into the county then § 290.013 should
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apply instead of § 290(b). Yet, § 290(b) states that a person must register when, “changing his or
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her residence within, any city, county, or city and county, or campus in which he or she temporarily
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resides, and shall be required to register thereafter in accordance with the Act.” Thus, Jenkins was
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appropriately charged by this section and Jenkins’ contentions fail to raise a federal claim. This
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claim is denied.
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C.
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Ineffective Assistance of Counsel
Jenkins argues that trial counsel was ineffective for failing to investigate that Jenkins was
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never arrested for the felony charged in this case and for failing to file a motion pursuant to Pitchess
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v. Superior Court, 11 Cal. 3d 531 (Cal. 1974), to review the personnel files of the arresting officer.
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The government may not make decisions to prosecute based on “an unjustifiable standard
such as race, religion, or other arbitrary classification,” though there is a presumption that the
prosecution did not rely on such factors. United States v. Armstrong, 517 U.S. 456, 465 (1996).
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A claim of ineffective assistance of counsel is cognizable as a claim of denial of the Sixth
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Amendment right to counsel, which guarantees not only assistance, but effective assistance of
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counsel. Strickland v. Washington, 466 U.S. 668, 686 (1984). The benchmark for judging any claim
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of ineffectiveness must be whether counsel’s conduct so undermined the proper functioning of the
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adversarial process that the trial cannot be relied upon as having produced a just result. Id.
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In order to prevail on a Sixth Amendment ineffectiveness of counsel claim, petitioner must
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establish two things. First, he must establish that counsel’s performance was deficient, i.e., that it
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fell below an “objective standard of reasonableness” under prevailing professional norms.
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Strickland, 466 U.S. at 687–88. Second, he must establish that he was prejudiced by counsel’s
deficient performance, i.e., that “there is a reasonable probability that, but for counsel’s
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For the Northern District of California
United States District Court
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unprofessional errors, the result of the proceeding would have been different.” Id. at 694. A
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reasonable probability is a probability sufficient to undermine confidence in the outcome. Id.
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The Strickland framework for analyzing ineffective assistance of counsel claims is
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considered to be “clearly established Federal law, as determined by the Supreme Court of the United
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States” for the purposes of 28 U.S.C. § 2254(d) analysis. Cullen v. Pinholster, 131 S. Ct. 1388, 1403
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(2011). A “doubly” deferential judicial review is appropriate in analyzing ineffective assistance of
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counsel claims under § 2254. See id. at 1410–11. The general rule of Strickland, i.e., to review a
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defense counsel’s effectiveness with great deference, gives the state courts greater leeway in
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reasonably applying that rule, which in turn “translates to a narrower range of decisions that are
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objectively unreasonable under AEDPA.” Cheney v. Washington, 614 F.3d 987, 995 (9th Cir. 2010)
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(citing Yarborough v. Alvarado, 541 U.S. 652, 664 (2004)). When § 2254(d) applies, “the question
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is not whether counsel’s actions were reasonable. The question is whether there is any reasonable
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argument that counsel satisfied Strickland’ s deferential standard.” Harrington v. Richter, 131 S. Ct.
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770, 788 (2011).
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To demonstrate deficient performance, a petitioner is required to show that counsel made
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errors so serious that counsel was not functioning as the “counsel” guaranteed by the Sixth
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Amendment. See Strickland, 466 U.S. at 687.
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The first part of Jenkins’ claim appears to be that while he was arrested for disturbing the
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peace and public intoxication, he was later charged, tried and convicted for failing to register as a
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sex offender. Petitioner argues that trial counsel should have investigated and challenged this
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situation. Jenkins does not explain nor is the Court aware how failure of counsel to address this
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issue could constitute ineffective assistance of counsel. Jenkins has cited no law, state or federal,
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that a defendant must be arrested for the specific offense that is later charged. Nor is the Court
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aware of any violation of federal law that could support this claim. Counsel was not ineffective for
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failing to address this issue. See Jones v. Ryan, 691 F.3d 1093, 1101 (9th Cir. 2012) (“It should be
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obvious that the failure of an attorney to raise a meritless claim is not prejudicial, ....”).
Jenkins next contends that trial counsel should have filed a Pitchess motion to review the
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For the Northern District of California
United States District Court
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personnel files of the arresting police officer. In Pitchess, 11 Cal. 3d at 537–38, the California
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Supreme Court held that, under certain circumstances, criminal defendants are entitled to discovery
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of information in a law enforcement officer’s personnel file that can assist their defense. Jenkins
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argues that the arresting officer improperly amended the arrest report. While Jenkins was arrested
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for disturbing the peace and public intoxication, it appears the arresting officer discovered that
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Jenkins was a sex offender who had not updated his registration and amended the arrest report to
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include this information and additional charges. Jenkins feels this was improper and trial counsel
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should have filed a Pitchess motion to discover if the arresting officer had other instances of similar
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behavior.
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While Jenkins believes that police officers may not add charges or amend police reports, he
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provides no explanation as to how this action was a violation of state or federal law. Thus, he has
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not demonstrated how trial counsel was ineffective for failing to pursue this matter. Such discovery
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would not have helped his defense. Trial counsel cannot be faulted for failing to file a Pitchess
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motion as such a motion would not have succeeded. See Jones v. Ryan, 691 F.3d at 1101; see also
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Reyes v. Yates, 2010 WL 2598280, at *16 (C.D. Cal., May 3, 2010) (unpublished decision finding no
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deficient performance for counsel’s failure to file a Pitchess motion where habeas petitioner made
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no specific misconduct allegations as would have been necessary to support a Pitchess motion).
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This claim lacks merit and is denied.
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D.
Sentencing
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Jenkins argues that he was sentenced to an unlawful term.
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State sentencing courts must be accorded wide latitude in their decisions as to punishment.
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See Walker v. Endell, 850 F.2d 470, 476 (9th Cir. 1987). Generally, therefore, a federal court may
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not review a state sentence that, like Petitioner’s sentence here, falls within statutory limits. Id. A
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federal court may vacate a state sentence imposed in violation of due process if a state trial judge
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imposed a sentence in excess of state law, Walker, 850 F.2d at 476, or enhanced a sentence based on
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materially false or unreliable information or a conviction infected by constitutional error, see United
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States v. Hanna, 49 F.3d 572, 577 (9th Cir. 1995).
Jenkins was sentenced to seven years and four months in prison. RT at 531-32. The trial
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For the Northern District of California
United States District Court
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court used count three (Penal Code § 290(b)) as the ‘base term,’ and imposed the upper term of three
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years and then doubled it because of Jenkins’ prior strike for a total of six years. RT at 531. The
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trial court imposed a six-year term on count two (Penal Code § 290.011(b)), but stayed execution of
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the sentence. Id. On count one (Penal Code § 290.011(b)), the court imposed a consecutive
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one-third of the middle term of two years, doubled because of Jenkins’ strike, to sixteen months. RT
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at 531-32.
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Jenkins argues that the trial court unlawfully selected count three as the base term but should
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have selected count two. Jenkins believes that counts one and three arose from a consolidation of
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cases, while count two was from the original case, therefore that should have been the count to
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determine the base term. Jenkins cites no law to support this assertion nor does he present any
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viable arguments that the sentence was in excess of state law.
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Jenkins term of six years for count three was correct pursuant to Penal Code § 290.018(b)
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which states that, “any person who is required to register under the act based on a felony conviction
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or juvenile adjudication who willfully violates any requirement of the act or who has a prior
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conviction or juvenile adjudication for the offense of failing to register under the act and who
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subsequently and willfully violates any requirement of the act is guilty of a felony and shall be
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punished by imprisonment in the state prison for 16 months, or two or three years.” The three years
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was then doubled due to the prior strike as described in Penal Code § 1170.12(c)(1) which provides
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that, “[i]f a defendant has one prior serious and/or violent felony conviction as defined in
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subdivision (b) that has been pled and proved, the determinate term or minimum term for an
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indeterminate term shall be twice the term otherwise provided as punishment for the current felony
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conviction.” Pursuant to these same statutes, the sixteen months for count one was also appropriate
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and within the trial court’s discretion. Jenkins has failed to demonstrate that the sentence was a
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violation of federal or state law, and this claim is denied.
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V.
CONCLUSION
The petition for writ of habeas corpus is DENIED on the merits. A certificate of
would find the district court’s assessment of the constitutional claims debatable or wrong.” Slack v.
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For the Northern District of California
appealability will not issue. See 28 U.S.C. § 2253(c). This is not a case in which “reasonable jurists
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United States District Court
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McDaniel, 529 U.S. 473, 484 (2000).
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The Clerk shall close the file.
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IT IS SO ORDERED.
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Dated: December 6, 2013
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_________________________
EDWARD M. CHEN
United States District Judge
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