Smart v. Harrington

Filing 22

ORDER DENYING PETITION FOR WRIT OF HABEAS CORPUS; DENYING CERTIFICATE OF APPEALABILITY. Signed by Judge Claudia Wilken on 10/7/2011. (ndr, COURT STAFF) (Filed on 10/7/2011)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE NORTHERN DISTRICT OF CALIFORNIA

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ALVIN SMART,

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No. C 09-3127 CW (PR)
Petitioner,

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v.

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KELLY HARRINGTON, Warden,

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ORDER DENYING PETITION FOR WRIT
OF HABEAS CORPUS; DENYING
CERTIFICATE OF APPEALABILITY

Respondent.

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INTRODUCTION
Petitioner Alvin Smart, a prisoner of the State of California

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who is currently incarcerated at Sierra Conservation Center in

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Jamestown, California, seeks a writ of habeas corpus pursuant to 28

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U.S.C. § 2254.

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February 24, 2010, the Court issued an Order to Show Cause why the

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writ should not be granted and on July 23, 2010, Respondent filed an

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Answer.

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Petitioner filed his Petition on July 10, 2009.

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Petitioner filed a Traverse on November 10, 2010.

For the following reasons, and having considered all of the
papers filed by the parties, the Court DENIES the Petition.
PROCEDURAL HISTORY
Petitioner was convicted of three counts of indecent exposure
with a prior conviction for the same offense.

The state court

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procedural history, which is relevant to Petitioner’s habeas

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petition, was summarized by the state court as follows.

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On April 21, 1998, an information was filed charging
Smart with three counts of indecent exposure and one count
of falsely identifying himself to authorities. Smart was
also charged with three prior strikes (§ 1170.12) and two
prior prison term enhancements (§ 667.5, subd. (b)).
On January 25, 1999, the superior court suspended
proceedings pursuant to section 1367. A competency
examination was conducted and, on August 24, 1999, the
court made a finding that Smart was not competent to stand
trial. Smart was committed to the State Department of
Mental Health for placement at Atascadero State Hospital
on September 15, 1999.
An order filed March 21, 2001, directed that Smart be
returned to court from the State Hospital. Certification
proceedings commenced on March 27, 2001, and, on April 12,
2001, Smart entered a plea of not guilty by reason of
insanity. A competency trial was held on September 6,
2001, at the conclusion of which the court found that
Smart was competent to stand trial and ordered that
criminal proceedings were reinstated.

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On February 4, 2002, the date set for commencement of
a jury trial, criminal proceedings were suspended again
pursuant to section 1367. On February 26, 2002, the court
conducted another competency examination at the conclusion
of which it found that Smart was not presently competent
to stand trial. On April 4, 2002, Smart was committed to
the Department of Mental Health for placement at Napa
State Hospital.
On April 11, 2003, Smart was returned to court for
proceedings to certify that he was competent to stand
trial. Another competency examination was conducted on
June 10, 2003, at the conclusion of which the court made a
determination that Smart was presently competent to stand
trial.
In July and August of 2003, Smart filed a series of
pro per motions pursuant to which he complained about such
matters as ineffective assistance of counsel, being forced
to take “drugs,” and having to remain in the same unit of
the State Hospital where the doctors found he was
competent. During this period Smart also made pro per
requests for a new competency hearing, substitute
appointed counsel and a new preliminary hearing. On
September 5, 2003, Smart filed a pro per petition for a
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writ of habeas corpus seeking dismissal of charges and the
institution of civil commitment proceedings on the ground
that the period during which he had been detained as
incompetent exceeded the maximum term or commitment
authorized by section 1370, subdivision (c)(1) (section
1370(c)(1)). That petition was denied on September 16,
2003.
Trial commenced before the Honorable Stephen Hall on
October 20, 2003. Smart’s defense of not guilty by reason
of insanity was bifurcated and the presentation of
evidence in the guilt phase commenced on October 24, 2003.
The jury began deliberating on October 28, and returned a
verdict of guilty as to all charges that same day. The
jury returned “true” verdicts as to the prior convictions
of November 4 of that year. The jury was dismissed and
the sanity phase of the trial was continued after the
court decided that neither side was prepared to proceed.

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The sanity phase of the trial was continued several
times for reasons which did not relate to Smart’s
competency. On April 22, 2005, Smart filed a motion for
substitute appointed counsel pursuant to People v. Marsden
(1970) 2 Cal. 3d 118 (Marsden) and on April 26, he filed a
motion to represent himself pursuant to Faretta v.
California (1975) 422 U.S. 806 (Faretta). Both motions
were heard and denied on May 4, 2005, by the Honorable
John L. Grandsaert.
The sanity phase of the trial commenced before Judge
Hall on January 17, 2006. That day, Smart made a motion
for a hearing to determine whether he was competent to
proceed with the trial, which was denied. The
presentation of evidence began on January 23, 2006. On
January 26, 2006, after deliberating for less than one and
one-half hours, the jury returned its verdict that Smart
was sane when he committed the offenses. On February 24,
2006, the court denied Smart’s new trial motion, refused
to dismiss his prior strikes and sentenced him to a total
term of 75 years to life in prison.
People v. Smart, pp. 2-4, Nos. A113111, A119279, Court of Appeal of
the State of California, First Appellate District, (filed by
Respondent as Ex. B-3 and hereinafter, Opinion).
Petitioner appealed, and on February 15, 2008, the California
Court of Appeal affirmed the judgment in an unpublished order and
denied Petitioner a writ of habeas corpus.
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The California Supreme

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Court denied review of Petitioner's direct and collateral appeals.

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STATEMENT OF FACTS
The California Court of Appeal summarized the factual
background of this case as follows:

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A. Guilt Evidence
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1. The Charged Offenses
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On December 17, 1996, at approximately 6:15 a.m., Nancy
Pangilinan went to the underground garage of her Millbrae
condominium complex. She was unlocking her car when
she heard a noise in the empty stall next to her parking
space. Pangilinan looked over and saw a nude man
masturbating. The man was approximately two feet from her
car. His face was covered by a red scarf and he was
"crouching down like a catcher." The man's genitals were
"completely shaven," and he was "stroking" his penis which
was "shiny, like he was lubricated."
Pangilinan was frightened by the man and tried to get
in her car and drive away but she was so nervous that the
car "jumped" as she put it into gear. The man walked in
front of the car and approached her driver's side window
while he continued to masturbate. Pangilinan almost hit
the man as she drove away.
On October 12, 1997, at around 2:00 a.m., Katrina
Stanley was in her ground floor Burlingame apartment
reading a magazine and waiting for her husband to come
home. She noticed a man outside standing about a foot away
from her window. She went to the window and saw that the
man's pants were down around his ankles and that something
like a shirt was covering the top of his head. The man's
crotch area was completely shaved and his hand was on his
shiny, fully erect penis which appeared to have some "sort
of lubricant on it." He was masturbating with one hand as
he motioned with the other for Stanley to come outside.
The man stayed outside while Stanley called 911 but fled
once she hung up the phone.
On the morning of October 12, 1997, Nancy Pangilinan,
the woman who had found a man masturbating in her garage
the previous December, was preparing to take a vacation.
Nancy and her husband Joel went to their garage at around
7:30 a.m. because Nancy wanted to make sure the car was
properly parked while they were away.

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Nancy was re-parking the car when she heard Joel shout,
"what the hell are you doing here?" Through her side
mirror, Nancy saw the same man who had accosted her in
December of 1996. He was nude, crouched down and his face
was covered with a red scarf. The man apologized and said
he was "going to the bathroom." Nancy said:
"I have seen you before, you were behind my other car in
this garage." The man repeatedly said, "I am sorry, leave
me alone, I will get out of here, I am going to the
bathroom, leave me alone."

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Although he claimed to be going to the bathroom, Nancy
did not observe the man relieving himself. Nor did she
observe any urine or feces in the spot where he had been
crouching after he walked away. As he walked away from
Nancy, the man kept his face covered with the red shirt
but did not attempt to cover his genitals which were
completely shaven. The man's penis, though not erect, was
shiny and appeared to have been lubricated.
Nancy's husband Joel followed the man as he retrieved
his clothes from behind a car parked several stalls away
from where Joel and Nancy had first seen him. The man, who
had put his pants on and no longer covered his face,
turned toward Joel who got a "good look at him." Joel
followed the man out of the garage where he encountered
Jesse Capilitan who was walking his dog. Joel asked
Capilitan to call the police. Joel lost sight of the man
but Capilitan got in his car and followed the man while he
called the police on his cell phone. The man darted behind
a condominium complex into a large grassy field.
2. Police Investigation
When the police arrived at the Pangilinan's residence,
Jesse Capilitan directed them toward the field where an
officer found appellant, Alvin Smart. Smart was "lying
underneath a large amount of brush and leaves holding
still as if trying to avoid" detection. Smart's hands were
"greasy" and "shiny" looking. He falsely reported that his
name was Robert Thomas Payne. From close by, officers
retrieved a jar of Vaseline and a red T-shirt. FN2.
Katrina Stanley was brought to the scene and identified
Smart as the man who was outside her window the previous
evening. She recognized his shoes, pants and the T-shirt
he was wearing. At trial, Stanley testified that she may
also have recognized a tattoo on his arm.
After his arrest, Smart was taken to the Burlingame
police station where he was interviewed by Officer James
Hutchings. Hutchings told Smart that a woman had reported
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seeking a man the previous evening, standing outside her
window and masturbating. Smart acknowledged he knew what
masturbating was, but denied any knowledge about the
incident and said that he could not "even get an erection
anyway" because of prostate problems. Smart also said the
woman could not accuse him of anything because he "never
did nothing like that." Hutchings told Smart that another
woman saw a man pull his pants down outside her apartment
which was close by the place where Smart was arrested.
Smart stated that the only time his pants were down was
when he was "taking a crap" in the field where police
found him. Smart repeatedly stated that he did not pull
his pants down in front of women and that he made sure he
was hidden from view when he went to the bathroom. Smart
also told the officer that he had never been arrested
before.

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A short time after Hutchings completed his interview,
Millbrae police officer Richard Dixon interviewed Smart.
Dixon asked whether Smart had exposed himself to a female.
Smart again denied that he had done anything. Smart also
denied ownership of the jar of Vaseline and the red
T-Shirt. He denied that the greasy substance on his hands
was Vaseline and said he just had oily skin. Smart told
the officer that his genitals were shaved because he had
"crabs." Smart also said he had "absolutely not" been
incarcerated in the past, that he had not been running
from anybody and that he was sleeping in the woods and was
just "a victim of circumstances."
3. Uncharged Incident
Late on the evening of November 8, 1983, Trudie
Mitchang heard a knock and went to the front door of her
ground floor apartment in Pacifica. Seeing nothing through
the peephole, Mitchang started to return to her bedroom
when she heard another knock and realized it was coming
from the kitchen window. She saw a man outside the window
who was wearing something over his face that resembled a
ski mask, with holes for the eyes cut out. The man's pants
were unzipped and he was stroking his exposed penis which
was "slick, shiny or oily looking." Mitchang screamed to
her roommate and called 911.
A San Mateo police officer who responded to Mitchang's
911 call apprehended Smart who was found sitting on a
motorcycle, with his pants falling down and his buttocks
exposed. A T-shirt with eye holes cut into it was in
Smart's pocket. Smart also had a jar of Vaseline in his
pants pocket. There was Vaseline on his hands and the
crotch area of his pants.

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An officer walked Mitchang to the location where Smart
was apprehended, only a short distance from her home.
Mitchang identified Smart as her assailant, although she
could not be absolutely sure because his face had been
covered. Mitchang said that the clothes Smart was wearing
and his general appearance "matched exactly."

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B. Sanity Evidence
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1. The Defense Case
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To support his claim that he was insane when the
charged offenses were committed, Smart presented testimony
by two expert witnesses, Dr. Robert Slater and Dr. Paul
Berg.
a. Dr. Robert Slater
Dr. Slater is a board certified psychiatrist who
testified on behalf of the defense as an expert in the
field of psychiatry. Slater interviewed Smart three times
between April 2001 and November 2003, the first two times
pursuant to court orders.
Slater interviewed Smart on April 30, 2001, as part of
a court ordered psychiatric evaluation to determine if
Smart should be found not guilty by reason of insanity. At
the time, Smart was disheveled, poorly groomed, and he
rocked back and forth, muttered, giggled and was generally
incoherent throughout the evaluation. In a May 3, 2001,
report to the court, Slater diagnosed Smart as suffering
from chronic schizophrenia. Slater based his diagnosis on
Smart's medical records which reflected he had been
diagnosed as schizophrenic in the past and on Smart's
"presentation." However, Slater also determined that Smart
was sane when the offenses were committed. Although Smart
was too incoherent in April 2001 to respond to questions
about the incidents, the police reports from that time
period indicated that Smart was sane when the crimes were
committed, that he knew what he had done and that what he
had done was wrong.
Slater interviewed Smart again on February 15, 2002,
pursuant to a court order for a determination whether
Smart was competent to stand trial. Smart was responsive,
more alert and made good eye contact, but he was not
coherent and engaged in "almost non-stop psychotic
ramblings.” When Slater interviewed Smart in 2002, he was
aware that Smart had previously been identified as a
malingerer. However, Slater concluded that "[t]he content
of his psychotic rambling was very consistent with a
genuinely mentally ill person, rather than a sane person
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trying to fake insanity." Therefore, Slater concluded that
Smart was not competent to stand trial in February 2002.

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Slater interviewed Smart a third time on November 12,
2003, in order to reconsider his prior conclusion that
Smart was sane at the time the offenses were committed.
Smart's psychological condition was "markedly improved."
He was coherent, responsive, and alert, made eye contact
and was able to articulate the charges against him. Smart
reported that he was "pretty much out of it" when he was
arrested, that God was telling him what to do and he had
to obey because he was God's son Jesus, and that
Government people were trying to kill him. Smart said that
he could see the agents inside his body when he looked in
the mirror and that God told him the only way to get rid
of them was to masturbate in front of women to kill the
agents. Smart told Slater that he strongly believed what
the voices told him at the time, that he still gets
confused at times, that he can think more clearly now but
"it still seems real."

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Slater testified at trial that he did not believe Smart
was malingering during the November 2003 interview. In
Slater's opinion, a successful malingerer would appear to
be "incoherent all the time," in order to secure a finding
of incompetence and avoid trial altogether. Furthermore,
Slater characterized Smart's reported delusion as a "story
told by a crazy person" and stated that "I don't think
there is any sane person that could think this up that
quickly off the top of his head, even with a rehearsal, it
is too real." Slater testified that Smart "comes across as
a generally psychotic person, even when he is coherent, he
is still psychotic."
When asked for his conclusion as to whether Smart was
sane at the time the offenses were committed, Slater
testified that "I concluded he was legally insane, on the
basis of the history that he gave to me."
b. Dr. Paul Berg
Dr. Paul Berg is a psychologist, licensed in California
since 1967, who testified as an expert in the field of
psychology. Berg was retained by the defense to review
Smart's medical records and evaluate him in order to
determine whether he was sane at the time the offenses
were committed. Berg interviewed Smart on July 22, 2004,
and also administered a Mellon Clinical Multi-Axial
Inventory (MCMI) test, the purpose of which was to obtain
a long-term perspective on the patient's mental health
status.

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During the interview, Smart explained to Berg that
exposing himself to women was "the only way he could free
himself from the government agents that had entered his
body." By masturbating in front of women, Smart was able
to release "the holy liquid" and "cleanse him[self] and
rid him[self] of this poisonous presence in his body."
Berg's clinical impression of Smart was that he suffered
from a delusional disorder and that he was a
schizophrenic.
Berg offered the opinion at trial that Smart was
psychotic when Berg interviewed him and was legally insane
when the offenses were committed. Berg acknowledged that,
in the past, Smart had been variously diagnosed as a
schizophrenic and as a malingerer. In Berg's opinion,
these two diagnoses were not inconsistent. Furthermore,
Berg believed that the results of the MCMI test
reinforced his impression that Smart "was not trying to
fake" mental illness.
2. The Prosecution Case
a. Lay witnesses
The People presented testimony from several witnesses
who observed Smart's behavior and demeanor during relevant
time periods including Mark Stockton, Smart's former
parole agent. Stockton testified he saw Smart at least
four times a month from December 1995 until his October
1997 arrest, except for periods when Smart was
incarcerated for parole violations. Smart never exhibited
any delusional thinking during parole visits. He acted
"appropriate[ly]," and he knew "what was going on."
Police officers Hutchings and Dixon both testified
regarding Smart's behavior on the day of his arrest.
Hutchings testified that Smart was cooperative, acted
appropriately and did not do anything to suggest he was
delusional or crazy. Officer Dixon testified that Smart
did not express any delusions or make any bizarre
statements to him. Throughout the arrest and interview
process, Dixon did not see any sign that Smart was having
any mental problems. FN3.
Ruthann Flament, a nurse practitioner at the Maguire
Correctional Facility at the San Mateo County jail, had
observed Smart on several occasions while he was in jail
and was also familiar with his medical records at the
jail. Flament first examined Smart on October 12, 1997,
the day he was arrested, after he reported to authorities
that he suffers from asthma. During the examination, Smart
complained of lower back pain due to a car accident. He
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did not make any mental health complaints, and did not
engage in any bizarre behavior. Flamant saw Smart again on
October 24, 1997, to follow up regarding Smart's back
pain. Smart was in no acute distress, was pleasant, and
talkative and was advised to exercise. Between October
1997 and September 1999, Smart sought medical attention
close to fifty times but never for a mental health issue.
Flament testified that Smart first came to the attention
of mental health staff in February 1999 when a deputy
observed Smart engaging in bizarre behavior and requested
a mental health evaluation for him.
Stephanie Arthur, the prosecutor at Smart's October
2003 guilt trial, testified that she took careful notes
about what occurred in court during each day of trial. On
the afternoon of the first day, Smart appeared wearing a
green smock-type robe and sitting in a wheelchair. He was
"mumbling incoherently and blowing raspberries ...
throughout the proceedings." The next morning, Smart again
appeared in the robe and wheelchair but was now talking
loudly and claimed to be Jesus Christ. He called his
attorney derogatory names but was not mumbling and rocking
in his chair as he had done the day before. At some point
during the morning session, the trial judge informed Smart
that the trial would proceed with or without his
cooperation. That afternoon, Smart returned to court
dressed in street clothes. He stopped the yelling, the
rocking and the mumbling. Smart wore a suit to court the
next day, the first day of jury selection. During the
remainder of the guilt trial, Smart appeared to be
communicating well with counsel and was respectful of the
proceedings.
b. Dr. Michael Venard
Dr. Michael Venard, a staff psychologist at Napa State
Hospital, was subpoenaed by the prosecution to testify
regarding an evaluation of Smart that he conducted in
March 2001. Venard was not paid for his testimony and was
not asked to formulate an opinion regarding Smart's
sanity.
Venard testified that, in March 2001, hospital staff at
Smart's housing unit determined that Smart "presented"
differently depending on who he was talking to and
requested an assessment of the authenticity of Smart's
mental health symptoms to aid them in formulating an
appropriate treatment plan. Venard reviewed legal
and medical records dating back to 1971, observed Smart
informally on several occasions and conducted an interview
with him in March 2001.

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From his review of Smart's records, Venard learned that
Smart had employed several aliases over the years. This
fact was significant because it indicated Smart was a
sophisticated patient who knew how to protect his identity
and present a different identity to medical evaluators.
The records also revealed that mental health treatment was
never voluntary but always followed some type of legal
problem when he was put in jail. Smart's records also
suggested that he knew how to control his symptoms so that
he could have himself moved from a jail setting to a
treatment setting. Whenever Smart was placed in a jail
setting, he would "almost immediately begin to
decompensate" and would have to be returned to a hospital
setting.

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In March 2001, Venard visited the unit where Smart was
housed several times a week and had the opportunity to
informally observe Smart in that environment. Venard
observed that Smart was no more or less impaired than
other patients who managed their daily affairs, got to
their appointments and ran their lives. When Venard told
Smart he was a psychologist who was asked to perform an
evaluation, Smart's behavior changed. At first Smart made
eye contact and spoke clearly. But, as Venard began to
question him about his mental health, Smart became less
responsive, and more isolated. After the interview was
completed, Smart's behavior changed again as he began to
interact with patients and staff in a more normal way.
During the March 2001 interview, Venard asked Smart
about the charged offenses. Smart claimed to have no
memory of them. When Venard asked what other people had
told him about the events, Smart became upset and claimed
he never wanted to hurt anybody and was not a violent man.
He engaged in an "ongoing upset kind of rambling," during
which he made the following statement: "It's not fair to
lock me up for three years for something that I don't
remember. Two doctors already told me I was incompetent,
and I should not go to jail." During the interview, Smart
never told Venard that he had delusions that required him
to masturbate in front of women.
Venard attempted to administer two tests, one designed
to help clinicians determine whether a patient is
exaggerating, manipulating or making up psychiatric
symptoms, and the other used to determine whether a
patient is engaging in memory malingering, i.e., whether
he is "faking" memory problems. Smart refused to complete
both of these tests.
Venard drew several conclusions from his evaluation
which he shared at trial. Among other things, Venard found
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that Smart's overall presentation indicated an
"intentional exaggeration of his symptoms whenever he's
faced with legal consequences for his actions," that he
appeared to be self-sufficient on a daily
basis, and that he was capable of recalling names and
events when he needed that information to support his
claim of impairment. Venard also found that Smart did have
a "true mental illness," but that it was coupled with
exaggeration or even intentional manufacturing of problems
when he was faced with a legal problem. Venard also
testified that "[Smart] seemed fully aware of his own
history. He seem[ed] aware of the potential consequences
of his actions; and, in my opinion, his lack of
cooperation with attorneys or mental health professionals
was voluntary and goal directed."
Venard concluded that Smart engages in "partial
malingering." Malingering describes a person "who is
intentionally producing symptoms in order to get out of
something." Partial malingering, by contrast, is when the
individual exaggerates very real symptoms, but can control
those symptoms and "learn[s] how to use them to [his or
her] own best benefit." In Venard's opinion, Smart is
"intentionally in control of his mental health symptoms
and [is] able to use those symptoms in order to obtain a
goal of getting out of jail and moving into a much more
comfortable situation," like the state hospital system.
FN4.
c. Dr. Joel Leifer
Dr. Joel Leifer is a forensic psychologist employed by
the State of California to perform psychological
evaluations, competency assessments and sanity evaluations
on behalf of various counties. Leifer evaluated Smart on
three occasions during the course of the lower court
proceedings. He was called by the prosecution to testify
as an expert in the field of psychology.
On May 2, 2001, Leifer interviewed Smart at the San
Mateo County jail in order to determine if he was sane or
insane at the time the offenses were committed. In a May
15, 2001 report, Leifer concluded that Smart was sane when
the offenses were committed. During the interview Smart
"appeared profoundly psychiatrically compromised. He was
mute. He was nonresponsive, and he rocked incessantly in
his chair." However, Smart's presentation at the time of
the interview did not answer the legal question whether
Smart was sane in October 1997. Leifer concluded that the
audio tape of Smart's police interview after his October
1997 arrest indicated that Smart understood the
wrongfulness of his conduct because he denied committing
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the exposures and stated that "he wouldn't do something
like that because something like that was wrong."

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Leifer interviewed Smart again on February 14, 2002, to
determine whether Smart was competent to stand trial and
concluded that Smart was "trial incompetent." Leifer's
conclusion was based primarily on Smart's catatonic
demeanor during his interview. Although there were
questions of malingering, Leifer testified that he could
not "disregard [Smart's] very convincing presentation at
that time."
In November 2003, Leifer conducted another competency
evaluation. In a report dated November 18, 2003, Leifer
concluded that Smart was competent to stand trial. Leifer
also opined that Smart was presently sane and noted that
Smart had been "able to discuss his case coherently and
consistently and with relevance." However, Leifer also
found that Smart was insane at the time the offenses were
committed. During the November 2003 interview, Smart
provided a "very clear, coherent, rational explanation of
what was going on in his mind at the time of the offense."
Smart told Leifer that "his actions were commands from
God, and that he was his son Jesus." God ordered him to
masturbate in front of women and he had to obey God's
orders. The clarity and forcefulness with which Smart
expressed his delusions led Leifer to change his opinion
about Smart's sanity and to conclude that Smart was not
sane when the offenses were committed.
In 2004, Leifer changed his opinion again and concluded
that Smart was sane at the time of the offenses. Leifer
testified at trial that, when he interviewed Smart in
November 2003, he had some concern about malingering but
ultimately concluded that Smart was a schizophrenic person
who also exaggerated his symptoms. However, during the
months following that interview, Leifer reviewed, for the
first time, Smart's extensive treatment records. Leifer
was persuaded by those records and the events documented
therein that Smart was a malingerer. Those records showed
that Smart had turned his symptoms on and off depending on
his goals and the people around him. Leifer also noted
that Smart was "overheard educating other inmates on how
to malinger symptoms so that they can be found to
be trial incompetent." Leifer ultimately concluded that
the "very sophisticated techniques" that Smart had
employed over the years were not consistent with a
diagnosis of schizophrenia.
d. Dr. Ronald Roberts
Dr. Ronald Roberts is a psychologist, licensed since
13

1

1984, who testified on behalf of the prosecution as an
expert in the field of psychology.

2
3
4
5
6

Roberts interviewed Smart on January 14, 2004. During
the interview, Smart was "very focused, somewhat upbeat in
his demeanor," reported that he was being treated poorly
by the jail and tried to get Roberts to feel sorry for
him. Early in the interview, Smart volunteered that he
currently knew that indecent exposure was a crime but
claimed that, at the time of the offenses, he did not know
his conduct was unlawful because he "was being directed by
mental delusions."

7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28

It appeared to Roberts that Smart had a story he was
ready to tell at the January 2004 interview. Smart's "very
elaborate story" was about how he was raped at knife point
when he was a child by a federal officer and, since that
time, federal agents had been after him and had entered
his body. Smart reported that God told him Federal agents
were trying to kill him and the only way to protect
himself was to kill them by masturbating. Roberts
testified that Smart also explained that he "was
delusional regarding the need to masturbate in front of
women for the first two incidents, but not at the time of
the third incident" when he "was just looking for a place
to go to the bathroom." Roberts testified that Smart
appeared to appreciate that his conduct was wrong because
he essentially used the delusions as an excuse for
behavior that would otherwise be against the law and
deserving of punishment.
Roberts identified several factors which were
inconsistent with the conclusion that Smart suffers from
schizophrenia. For example, Smart's purported delusions
were very concise and clearly explained whereas
schizophrenics think in a "very jumbled" and "scattered"
manner. Also, Smart claimed to have clear visual delusions
which would be rare for a schizophrenic to experience. In
addition, Smart had been involved in a long-term romantic
relationship and Roberts had never known anyone with
paranoid schizophrenia to have had that kind of long term
romantic relationship.
Roberts acknowledged that "sometimes individuals who
may be actively psychotic may get put on medications and
have the active signs of psychosis subside," but found
that this possibility did not apply to Smart. Smart's
medical records showed that he was not taking any
psychiatric medication during the initial phase of his
incarceration after his arrest for the charged offenses,
and yet he did not report any psychiatric symptoms.
Indeed, Smart did not even make the claim that he was
14

1
2
3
4

psychotic at the time of the charged offenses until 1999.
Roberts testified that these circumstances were not
consistent with a diagnosis of schizophrenia.
Schizophrenics who are not on medication cannot control
their symptoms and Smart's alleged psychotic symptoms
could not have gone unnoticed for the lengthy period of
time during which he was incarcerated but not taking any
medication.

5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28

Roberts administered two psychological tests during his
interview with Smart, a Structured Interview of Reported
Symptoms (SIRS), which is designed to help identify
patients who are faking schizophrenic types of disorders
and a Rorschach test which is used to identify
schizophrenic or psychotic disorders in general. Smart's
responses to the Rorschach test "gave no indication of
schizophrenia or any type of psychotic disorder." The
results of the SIRS established a "concern about the
possibility of malingering," although Roberts could not
conclude that there was malingering based upon that one
test.
Roberts found additional evidence of malingering in
Smart's records. Police reports from the time when the
crimes were committed did not contain any report of "any
type of psychotic symptom whatsoever," or any sign that
Smart was suffering from a mental illness. Medical and
hospital records showed that Smart came to the attention
of mental health professionals only after he was charged
with a crime. Roberts also noted that the records showed
that Smart's symptoms of schizophrenia surfaced whenever
it was time for Smart to appear in court. Roberts also
found "multiple, multiple notations in the records about
malingering."
Ultimately, Roberts concluded: "From my perspective in
being a psychologist with over 30 years of experience in
evaluating individuals that have psychotic problems, I saw
absolutely no evidence at any time at the commission of
these crimes of any type of significant defect in his
mental state that might warrant considering insanity."
Roberts also stated that all of the information he
considered suggested that Smart "knew the difference
between right and wrong and knew that the acts that were
being committed were wrong."
FN2. Stains on the shirt tested positive for semen.
However, the sample was degraded and could not be matched
to Smart's DNA.
FN3. The prosecution called several other witnesses who
had previously testified at Smart's guilt trial.
15

1
2
3

FN4. Venard found many examples of this behavior
documented in Smart's medical history. Another example
occurred during Venard's interview when Smart admitted
that he had "decided not to eat or sleep so he would get
out of jail."

4
Opinion at 4-17 (footnotes in original).
5
LEGAL STANDARD
6
The Antiterrorism and Effective Death Penalty Act of 1996
7
(“AEDPA”), codified under 28 U.S.C. § 2254, provides “the exclusive
8
vehicle for a habeas petition by a state prisoner in custody
9
pursuant to a state court judgment, even when the petitioner is not
10
challenging his underlying state court conviction.”

White v.

11
Lambert, 370 F.3d 1002, 1009–10 (9th Cir. 2004).

Under AEDPA, this

12
Court may entertain a petition for habeas relief on behalf of a
13
California state inmate “only on the ground that he is in custody in
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28

violation of the Constitution or laws or treaties of the United
States.”

28 U.S.C. § 2254(a).

The writ may not be granted unless the state court’s
adjudication of any claim on the merits:

“(1) resulted in a

decision that was contrary to, or involved an unreasonable
application of, clearly established Federal law, as determined by
the Supreme Court of the United States; or (2) resulted in a
decision that was based on an unreasonable determination of the
facts in light of the evidence presented in the State court
proceeding.”

28 U.S.C. § 2254(d).

Under this deferential standard,

“a federal habeas court may not issue a writ simply because that
court concludes in its independent judgment that the relevant
state-court decision applied clearly established federal law
16

1

erroneously or incorrectly.

2

unreasonable.”

3

Harrington v. Richter, the Court further stresses that “‘an

4

unreasonable application of federal law is different from an

5

incorrect application of federal law.’”

6

(citing Williams, 529 U.S. at 410) (emphasis in original).

7

court’s determination that a claim lacks merit precludes federal

8

habeas relief so long as ‘fairminded jurists could disagree’ on the

9

correctness of the state court’s decision.”

10
11

Rather, that application must also be

Williams v. Taylor, 529 U.S. 362, 411 (2000).

In

131 S. Ct. 770, 785 (2011)
“A state

Id. at 786 (citing

Yarborough v. Alvarado, 541 U.S. 653, 664 (2004)).
While circuit law may provide persuasive authority in

12

determining whether the state court made an unreasonable application

13

of Supreme Court precedent, the only definitive source of clearly

14

established federal law under 28 U.S.C. § 2254(d) rests in the

15

holdings (as opposed to the dicta) of the Supreme Court as of the

16

time of the state court decision.

17

v. Murphy, 331 F.3d 1062, 1069 (9th Cir. 2003).

18

Williams, 529 U.S. at 412; Clark

The state court decision to which 28 U.S.C. § 2254 applies is

19

the “last reasoned decision” of the state court.

20

Nunnemaker, 501 U.S. 797, 803–804 (1991); Barker v. Fleming, 423

21

F.3d 1085, 1091–1092 (9th Cir. 2005).

22

involved the issue of procedural default, the “look through” rule

23

announced there has been extended beyond that particular context.

24

Barker, 423 F.3d at 1092 n.3 (citing Lambert v. Blodgett, 393 F.3d

25

943, 970 n.17 (9th Cir. 2004) and Bailey v. Rae, 339 F.3d 1107,

26

1112–1113 (9th Cir. 2003)).

27
28

17

See Ylst v.

Although Ylst primarily

1

Even if a petitioner meets the requirements of § 2254(d),

2

habeas relief is warranted only if the constitutional error at issue

3

had a substantial and injurious effect or influence in determining

4

the jury’s verdict.

5

Under this standard, petitioners “may obtain plenary review of their

6

constitutional claims, but they are not entitled to habeas relief

7

based on trial error unless they can establish that it resulted in

8

‘actual prejudice.’”

9

v. Lane, 474 U.S. 438, 439 (1986).

10

Brecht v. Abrahamson, 507 U.S. 619, 638 (1993).

Brecht, 507 U.S. at 637, citing United States

DISCUSSION

11

Petitioner raises seven claims in his Petition.

12

discussed below.

13

I.

All claims are

14

Petitioner’s Faretta Request
Petitioner contends that his constitutional rights were

15

violated when the state court denied his request to represent

16

himself pursuant to Faretta v. California, 422 U.S. 806 (1975).

17

The state court considered this issue in a lengthy, reasoned opinion

18

on direct appeal.

19

First, the state court reviewed the circumstances surrounding

20

Petitioner’s motion to represent himself at the sanity phase of his

21

trial.

22

1. Background

23

As noted above, Smart's April 22 Marsden and April 26
Faretta motions were both heard and denied by Judge
Grandsaert on May 4, 2005. FN5. At that time, the sanity
phase of Smart's trial was scheduled to commence on May
23, 2005, and the prosecution opposed any further
continuances.

24
25
26
27
28

The Marsden motion was directed at Steven Chase,
18

1
2
3
4
5
6
7
8

Smart's fourth attorney during the lower court
proceedings, who had represented Smart during the guilt
phase of the trial. The transcript of the hearing reflects
that Smart had made four prior Marsden motions all of
which had been denied. Smart made several complaints about
his defense counsel, including that Chase (1) accused him
of faking his mental illness, (2) did not attempt to stop
the guilt trial on the ground that Smart was incompetent;
(3) did not present a defense at the guilt phase; (4) was
not adequately prepared for the sanity phase; (5) intended
to call only two doctors at the sanity phase; and (5) had
failed to obtain relevant medical records and
documentation. The trial court denied the Marsden motion,
stating that defense counsel was a "very experienced,
excellent defense attorney" who was as "good an
advocate as any lawyer can be."

9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28

After the Marsden motion was denied, the court
entertained Smart's Faretta motion. The court asked Smart
several questions. It inquired why Smart had filed so many
Marsden motions to which Smart replied he had been
receiving "ineffective assistance of counsel." The court
asked whether Smart remembered what happened during the
guilt phase. Smart responded: "Vaguely, yes I do. And it
had to do with the fact -- I told you in the Marsden
hearing about what -- the doctor had found me to be
incompetent before I went to trial." FN6. The court asked
whether Smart was still having delusions. Smart responded
that he was "competent," and that it had been "quite
awhile" since he had heard voices. He explained that, over
the years, he had experienced "mental illnesses" at
various times, that he knows "when it's coming on," and
that at the present time, he was "very competent," and was
"not having any problems." Smart reiterated that he was
not competent at the guilt phase because that is what the
psychiatrist said. He stated that he goes through a
"process of hearing voices, being delusional," and that
when that happened it could get so bad that he did not
"know nothing at all."
When the court asked Smart whether he would be ready to
proceed with the trial on the scheduled date, Smart
replied: "I think I'm ready to proceed on that date. If
not, if I have to look over all the records, I want to get
a trial as soon as possible, Your Honor, like I said. A
couple weeks longer, maybe, or something, at the most. I
want to go to court in trial as soon as possible. I'm
not trying to put a trial off, Your Honor. I'm trying to
go to trial and trying to win it."
The court prefaced its ruling by expressing its opinion
that Smart was articulate and intelligent, mentally ill
19

1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
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20
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22
23
24
25
26
27
28

but competent to stand trial. The court then shared
several concerns including that (1) the case was seven
years old, (2) Smart’s delusions and resulting problems
with historical reality did not render him incompetent but
would affect his ability to represent himself, (3) Smart’s
request was being made mid-trial, after the guilt phase
was already completed, (4) it appeared that Smart’s real
motivation was to get rid of his current counsel and
further delay the proceedings, (5) Smart had already made
so many Marsden motions, and (6) Smart had been disruptive
during the guilt phase of the trial.
With respect to its concern about Smart's prior
disruptive behavior, the court gave two examples. It
mentioned Smart's behavior during the first few days of
the guilt phase when Smart attempted to convince the trial
court he was not competent. The court also referred to an
incident during the defense closing argument. Smart
opened his shirt to show the jury that he did not have a
mole or birthmark on his chest after reference was made to
the fact that Katrina Stanley had reported to police that
she thought she saw a mark on the chest of the man who
exposed himself to her.
Ultimately, the court denied the Faretta motion on the
following grounds: "In light of the fact that this case
has been going on for several years. In light of the fact
that you acted in a way that disrupted court proceedings
at the first phase of this trial, in terms of what you did
during closing argument. In light of the fact that you
refused to come to court and attempted to disrupt
proceedings there. In light of the fact that I don't
believe that you would be ready to proceed to trial on May
23rd if I were to grant your motion, because of the kinds
of things you said to counsel this morning, about how
there's so little time left, and there's not much time
left for Mr. Chase to complete the work that needs to be
done in your opinion. I'm concerned when you say that
you're not going to ask for a continuance, that it's
either unrealistic or untrue with what you intend to do.
[¶] I don't see how you can say to Mr. Chase that he's not
going to be able to be ready for trial on May 23rd, and
yet say that you would be ready for trial on May 23rd. {¶]
I think, in light of that history, in light of the present
setting of the case, in light of the People's right to
proceed to trial after seven years, in light of your
conduct in the first phase of this trial.... [¶] I don't
believe that you truly do seek the right to represent
yourself as opposed to desire to get rid of you're [sic]
appointed counsel. I think that your request is being made
here for purposes of getting rid of counsel and for the
purpose of delaying proceedings. I think you would disrupt
proceedings in the second phase of this trial, as you did
20

1

in the first phase."

2

FN5. Although the transcript of the Marsden hearing was
originally filed under seal, relevant portions of the
transcript were unsealed pursuant to this court's order.

3
4
5
6
7
8
9

FN6. During the Marsden hearing, Smart maintained that,
before the guilt phase of the trial commenced, a doctor
named Al Bruce found that he was not competent to stand
trial. However, Chase advised the court: "I know nothing
about that doctor. And -- and like I say, I sat through
the trial with this man. I talked to him daily. He was not
incompetent. That's just -- that's a fact."
Opinion at 17-20 (footnotes in original).
The state appellate court then engaged in a lengthy discussion

10

as to whether the trial court had abused its discretion in denying

11

Petitioner’s Faretta motion.

12

trial court had been correct in concluding both that Petitioner’s

13

Faretta motion had been untimely and that even if it had been

14

timely, it was made for the purposes of delay and thus was properly

15

denied.

The appellate court held that the

Opinion at 21-23.

16

As to timeliness, the state appellate court found that:

17

The objectively verifiable facts support the lower court’s
conclusion that the motion was made mid-trial. Trial
commenced on October 20, 2003, and the verdict that Smart
was sane was returned on January 26, 2006. Only the guilt
phase of the trial had been completed when Smart made his
Faretta motion on April 26, 2005.

18
19
20
21
22
23
24
25
26
27
28

Opinion at 21.

The court also rejected as without merit

Petitioner’s unsupported argument that his Faretta motion ought to
have been treated the same as a motion made before trial.

Id.

The state appellate court also rejected Petitioner’s argument
that his motivation for the motion was irrelevant.

Opinion at 24.

Rather, “‘in order to protect the fundamental constitutional right
of counsel, one of the trial court’s tasks when confronted with a

21

1

motion for self-representation is to determine whether the defendant

2

truly desires to represent himself or herself.”

3

v. Marshall, 15 Cal. 4th 1, 23 (1997).

4

Id. (citing People

As a result:

8

Under the circumstances presented here, the lower
court could reasonably have concluded that Smart lacked
the desire and, indeed, the intention to actually
represent himself at trial and that he attempted to invoke
his Faretta right either (1) in haste and out of
frustration because his Marsden motion was denied; or (2)
pursuant to a plan to shed himself of counsel, delay the
proceedings, and later claim that he needed a new attorney
to assist him at the sanity phase of the trial.

9

. . .

5
6
7

10
11
12
13
14

To summarize, Smart did not have an unqualified
constitutional right to represent himself during the
second half of his trial and he has failed to show that
the lower court abused its discretion by denying the
mid-trial Faretta motion.
Opinion at 25.
Petitioner cannot demonstrate that the California Court of

15

Appeal's reasoned decision was contrary to, or involved an

16

unreasonable application of, clearly established United States

17

Supreme Court law.

18

factual findings were unreasonable.

19

Nor can he demonstrate that the state court's

The United State Supreme Court has confirmed that a criminal

20

defendant has a Sixth Amendment right to self-representation.

21

Faretta v. California, 422 U.S. 806, 832 (1975).

22

decision to represent himself and waive the right to counsel,

23

however, must be unequivocal, knowing and intelligent, timely, and

24

not for purposes of securing delay.

25

Arlt, 41 F.3d 516, 519 (9th Cir. 1994); Adams v. Carroll, 875 F.2d

26

1441, 1444 & n.3 (9th Cir. 1989).

27

reasonably concluded, Petitioner’s motion to represent himself was

28

A defendant's

Id. at 835; United States v.

Here, as the state court

22

1

both untimely and made for the purposes of delay.

2

Petitioner can cite no clearly established law indicating that the

3

state court decision was in error.

Opinion at 17-26.

4

In addition, even if Petitioner had demonstrated a colorable

5

claim of error, he would not be able to show that any error had a

6

substantial or injurious effect on the verdict.

7

638.

8

trial would have been favorable to Petitioner if he had represented

9

himself.

Brecht, 507 U.S. at

There is no indication in the record that the result of the

Because Petitioner cannot demonstrate that the trial

10

court’s denial of his Faretta motion prejudiced him, Petitioner’s

11

claim must be denied.

12

II.

Right to An Impartial Judge

13

Petitioner alleges he was subject to judicial bias, because the

14

judge who decided his Faretta motion was a former prosecutor and had

15

made an appearance in his case seven years earlier.

16

according to Petitioner, his due process right to an impartial judge

17

was violated.

18

opinion on direct appeal.

19

As a result,

The state court considered this issue in a reasoned

First, the state court set forth Petitioner’s key allegations.

20

Judge Grandsaert, who denied Petitioner’s Faretta motion, had

21

previously been a deputy district attorney.

22

his time as a deputy D.A., Judge Gransaert made an appearance at a

23

March 2, 1998 hearing in Petitioner’s case.

24

hearing was not substantive; rather, it was a routine matter to

25

continue a date.

26

appearance rendered him biased in favor of the prosecution on May 4,

27

2005 when he heard and denied Petitioner’s Faretta motion.

28

Opinion at 54.

Opinion at 55.

During

The

According to Petitioner, Judge Gransaert’s earlier

23

Opinion

1
2

at 54.
After first holding that Petitioner’s claim of judicial bias

3

was procedurally defaulted, the state court turned to the merits of

4

the claim.

5

“unsettled as to whether proof of actual bias is required or if the

6

appearance of bias may be sufficient to establish a due process

7

violation.”

8

record, the state court found that there was

9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28

Opinion at 57.

The court first noted that state law was

Opinion at 57 (citing cases).

After reviewing the

no basis for finding actual bias or an appearance of bias.
More than seven years after the March 2, 1998 hearing,
Judge Grandsaert heard and ruled on Smart’s Faretta
motion. Smart does not allege that Judge Grandsaert knew
or should have recalled that he previously appeared at the
March 2, 1998, hearing. Indeed, we do not believe that
any reasonable person would expect that the judge would
have any recollection of that insignificant hearing. Nor
could he have been expected to recognize Smart’s name,
particularly in light of the fact that, during the
Municipal Court proceedings, Smart was formally referred
to by his alias, Robert Payne, whereas Smart used his real
name at the Faretta hearing. Further, and perhaps most
important, there is simply no reason to suspect that one
appearance so long ago would have made Judge Grandsaert a
biased decision maker when he heard and ruled upon the May
4, 2005 motion.
Smart contends that “it would be practically
impossible” for Judge Grandsaert to be unbiased when he
heard and ruled on the Faretta motion. However, we have
very carefully reviewed the transcript of the Faretta
hearing and have found absolutely no evidence of bias.
Smart also argues that the denial of his Faretta motion
is, in and of itself, evidence that Judge Grandsaert was
biased in favor of the prosecution. Smart reasons that
error is more likely to occur during a trial when the
defendant represents himself than if he is represented by
counsel. Therefore, Smart contends, Judge Grandsaert
denied the Faretta motion in order [to] increase the
likelihood that the jury would return an error-free
finding that Smart was sane when the offenses were
committed and would thereby deprive Smart of the
opportunity to obtain a reversal of the judgment. We
reject this remarkably irrational argument. To the extent
any judge is motivated by an intention to provide a fair,
error-free, trial, that motivation is not evidence of
24

1

bias.

2

To summarize, we hold that . . . the evidence
submitted in support of the petition does not support the
allegations that Smart’s due process rights were violated
when Judge Grandsaert heard and ruled on the Faretta
motion.

3
4
5
6

Opinion at 58-59.
Here, Petitioner has not demonstrated that the state court’s

7

reasoned opinion is contrary to, or an unreasonable application of,

8

clearly established United States Supreme Court law.

9

also fails to demonstrate that the state court’s opinion relied on

10
11

Petitioner

an unreasonable determination of the facts.
The due process clause guarantees criminal defendants the right

12

to a fair and impartial judge.

13

(1955).

14

context of federal habeas review, however, does not simply require

15

that the federal court determine whether the state judge committed

16

judicial misconduct; rather the question is whether the state

17

judge’s behavior “rendered the trial so fundamentally unfair as to

18

violate the federal due process clause under the United States

19

Constitution.”

20

(citations omitted).

21

to those instances where there is proof of actual bias, or of a

22

possible temptation so severe that one might presume an actual,

23

substantial incentive to be biased.

24

Illinois Dep’t of Corrections 31 F.3d 1363, 1380 (7th Cir. 1994) (en

25

banc).

26
27
28

In re Murchison, 349 U.S. 133, 136

A claim of judicial misconduct by a state judge in the

Duckett v. Godinez, 67 F.3d 734, 740 (9th Cir. 1995)
In addition, federal habeas relief is limited

See, e.g., Del Vecchio v.

Petitioner can cite no clearly established Supreme Court law
demonstrating that the state court’s decision that Judge Grandsaert
25

1

had no actual or apparent bias was unreasonable.

2

state court concluded, Petitioner cannot demonstrate that the

3

decision by Judge Grandsaert to deny Petitioner’s Faretta request

4

was harmful to Petitioner; as such, Petitioner cannot show that any

5

action by Judge Grandsaert rendered his trial “fundamentally

6

unfair.”

7

denied.

8

III. Trial Court’s Refusal To Order A New Competency Hearing

9

Duckett, 67 F.3d at 740.

Moreover, as the

Thus, Petitioner’s claim must be

In this claim, Petitioner maintains that his due process rights

10

were violated when the state trial court refused to hold competency

11

hearings during the sanity phase of Petitioner’s trial.

12

court considered this claim in a section of its lengthy, reasoned

13

opinion on direct appeal.

14

The state

First, the state court reviewed the factual background of this

15

claim.

16

January 16, 2006, defense counsel Chase made a motion to continue

17

the trial in order to hold a competency examination of Petitioner.

18

Opinion at 26.

19

this was the fourth time that Smart had claimed to become

20

incompetent on the eve of trial” and that Petitioner had a history

21

of malingering.

22
23
24
25

When the sanity phase of Petitioner’s trial1 commenced on

The prosecutor objected to the motion, noting “that

Opinion at 27.

After the matter was submitted, the trial court
reviewed the “extraordinary” history of the case. It
noted, among other things, that charges had been filed in
April 1998 for offenses that occurred in October 1997,
that Smart had been represented by at least four
attorneys, that there had been several Marsden motions,
and that criminal proceedings had been suspended due to

26
27
28

1

The guilt and sanity phases of Petitioner’s trial were presided
over by Judge Hall, not Judge Grandsaert.
26

1
2
3
4
5
6
7
8
9

incompetency more than once. The guilt phase finally
commenced in October 2003 and the court recalled the
following about Smart’s appearance at trial: “When Mr.
Smart came into the courtroom on that date, as I recall,
he was manifesting a number of physical symptoms and
symptomology which included attempting to be frothing at
the mouth and acting completely incoherent . . . I made
findings and expressed to Mr. Smart the fact that we were
in fact going to be proceeding with this trial and the
fact that this Court viewed [his conduct] as being an act
of malingering, [that] was not going to be accepted or
tolerated. [¶] And suddenly Mr. Smart immediately stopped
his theatrics and sat through the entirety of the trial
. . . .” The court noted that after the guilt phase was
completed the trial was continued several times for
various reasons including the need to review Smart’s
“voluminous” medical records from Napa, Atascadero and the
jail.

10
11
12
13
14
15
16
17
18
19
20
21
22
23

The court stated that it had reviewed and considered
Chase’s declaration, the arguments of counsel, the court
file, and its own notes from observations of Smart, and
the relevant law and that it had “carefully analyzed this
matter.” The court acknowledged that Chase had “gone
beyond the call in his representation of Mr. Smart,” and
that it would likely have made this motion had it been in
his shoes. Nevertheless, the court denied the request for
a competentcy examination with the following statement:
“But from all I have seen at this point, I have not
seen a sufficient showing of substantial change in
circumstances to warrant at this point a further
suspension of proceeding under [§§ 1367-1368] of the Penal
Code based upon the prior adjudications in this matter and
based upon Mr. Smart’s demonstrated pattern of conduct in
this very department. That certainly is not saying he
doesn’t have issues, which we will be addressing during
the sanity phases which we will be proceeding on. [¶] So,
Mr. Smart, we are going to be proceeding to the sanity
phase. So I would urge you to cooperate with Mr. Chase
during the course of these proceedings. . . .”
Opinion at 27-28.
After the trial, defense attorney Chase brought a motion for a

24

new trial arguing that Petitioner was denied a fair trial at the

25

sanity phase because the trial court had not permitted a medical

26

determination as to whether Petitioner was competent to stand trial.

27

Opinion at 30.

28

The appellate court summarized the trial court’s
27

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5
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7
8
9
10
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12
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27
28

findings as follows:
The trial court prefaced its ruling by observing that
Chase was a tireless advocate and by sharing its view that
the rights of criminal defendants are “sacred rights.”
Then, the court made the following statement: “I will say
candidly from my perspective sitting here as a trial
judge, both guilt phase and sanity phase, I have never in
my entire life in many different careers ever seen an
individual who in the Court’s assessment has abused the
process of the Courts and tried to take advantage of those
rights which we set forth for criminal defendants than Mr.
Smart. [¶] I find Mr. Smart to be what I would only
characterize as a master manipulator who has done
everything humanly possible to [set] every conceivable
booby trap . . . for any reviewing Court as it relates to
the handling for this matter dating back to the time when
he first wheeled into Court for the guilt phase in this
trial in 2003.”
The court referred again to Smart’s behavior at the
commencement of the guilt phase. It also recalled that
during the sanity phase, it appeared that Smart
intentionally exaggerated his symptoms as he was wheeled
closer to the courtroom and that, on another occasion
while defense counsel was examining a witness, Smart
opened one eye and looked around as if to orient himself.
The court also stated that the record was replete with
evidence that Smart had been “using and abusing both the
criminal justice system as well as the mental health
system dating back decades.”
The court concluded there was not substantial
evidence to warrant another medical status examination and
stated: “I believe it was a dilatory tactic, and frankly,
a very good one done on the part of Mr. Smart much to the
dismay of his counsel, but if you look at it objectively
made a tremendous amount of sense from Mr. Smart’s part
because it yet creates another issue for the purpose of
appeal in this case.” Accordingly, the court denied the
new trial motion.
Opinion at 31.
Finally, the state appellate court analyzed the merits of
Petitioner’s claim.
“[T]rial of an incompetent defendant violates an
accused’s right to due process.’ [Citations.] The United
States Supreme Court has defined competence to stand trial
as a defendant’s “‘sufficient present ability to consult
with his lawyer with a reasonable degree of rational
28

1
2
3
4
5

understanding’ and ‘a rational as well as factual
understanding of the proceedings against him.’”
[Citation.] Under California law, a person is incompetent
to stand trial ‘if, as a result of a mental disorder or
developmental disability, the defendant is unable to
understand the nature of the criminal proceedings or to
assist counsel in the conduct of a defense in a rational
manner.’ [Citation.] A defendant is presumed to be
mentally competent to stand trial. [Citation]” (People v.
Young (2005) 34 Cal. 4th 1149, 1216.)

6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28

“When the accused presents substantial evidence of
incompetence, due process requires that the trial court
conduct a full competency hearing. [Citation.] . . . The
court’s duty to conduct a competency hearing arises when
such evidence is presented at any time ‘prior to
judgment.’ [Citations.] [¶] When a competency hearing has
already been held and the defendant has been found
competent to stand trial, however, a trial court need not
suspend proceedings to conduct a second competency hearing
unless it ‘is presented with a substantial change of
circumstances or with new evidence’ casting a serious
doubt on the validity of that finding. [Citations.]”
(People v. Jones (1991) 53 Cal. 3d 1115, 1152-1153
(Jones).)
In the present case, when Smart made a request for a
competency hearing on the first day of the sanity phase of
the trial, three prior competency hearings had already
been held and a determination made that, as of June 10,
2003, Smart was competent to stand trial. Therefore, the
trial court was not required to suspend proceedings again
and conduct a fourth competency hearing unless it was
presented with a “substantial change of circumstance” or
with new evidence that cast a “serious doubt” on the
validity of the most recent competency finding. (Jones,
supra, 53 Cal. 3d at p. 1153.)
On appeal, Smart contends that there was a change of
circumstances and substantial new evidence which raised a
doubt about his competency and required a new competency
hearing. We, like the trial court, reject this
contention. Smart’s behavior at the sanity phase was
neither new nor a change of circumstance. His history of
engaging in just such conduct whenever he was required to
come to court to face a criminal charge was welldocumented. The trial court was not only familiar with
that history, it had observed this type of behavior firsthand at the commencement of the guilt phase.
Smart attempts to portray his conduct at the sanity
phase as new evidence by pointing out that, in contrast to
the guilt phase, his symptoms did not disappear after the
29

1
2
3
4
5

court advised him that the trial could continue. However,
the evidence shows that Smart did cease his behavior
within days after the sanity verdict was announced. As he
had done on numerous prior occasions, Smart displayed his
symptoms of mental illness for a period during which he
believed it benefited [sic] him to appear incompetent. In
other words, Smart’s behavior at the sanity phase was not
a substantial change of circumstance when viewed in the
context of his extensive documented history with the
criminal justice system.

6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28

To the extent a distinction can be drawn between
Smart’s behavior at the sanity phase as compared to his
prior behavior at the guilt phase, that distinction does
not establish error on the part of the trial court. By
the time of the new trial motion, it had become even more
apparent to the court that Smart’s behavior at the sanity
phase was nothing more than a new way to play an old game
and that it did not raise a serious doubt about the prior
finding of competence. As reflected in the record of the
hearing on Smart’s new trial motion, the court observed
additional signs of malingering during the sanity phases.
Employees at the jail where Smart was held during this
period also observed instances when Smart engaged in
behavior which was inconsistent with the notion that his
presentation at trial was genuine. Indeed, by conclusion
of this trial, there was overwhelming evidence before the
court that Smart was intentionally attempting to appear
incompetent at the sanity phase. His effort to appear as
such, to the extent distinguishable from prior occasions,
was not substantial evidence “casting a serious doubt on
the validity” of the prior finding that he was competent.
(Jones, 53 Cal. 3d at p. 1153.)
Smart repeatedly complains that the trial court erred
by relying on its own observations and its own opinion
that Smart was a malingerer. In fact, though, the very
reason we show deference to a trial court’s decision
whether to hold a competency hearing once a finding of
competence has already been made is that we, as an
appellate court, are “‘in no position to appraise a
defendant’s conduct in the trial court as indicating
insanity, a calculated attempt to feign insanity and delay
the proceedings, or sheer temper.’” [Citations.]
(Marshall, supra, 15 Cal. 4th at p. 33.) In this case,
when the trial court was presented with the request for a
competency examination, it was uniquely qualified to make
that determination. Not only was there a documented
history of Smart’s behavior at other criminal proceedings,
the court itself had witnessed that behavior during the
beginning of the guilt phase. With that tremendous
benefit, the court’s observations and assessment of Smart
at the sanity phase are particularly valuable and we will
30

1

not second guess them.

2

We accept and affirm the trial court’s determination
that Smart’s behavior at the sanity phase was not a
substantial change of circumstances but part and parcel of
a pattern of conduct going back several years. In light
of that finding, the court was not required to hold
another competency examination during the sanity phase of
the trial.

3
4
5
6

Opinion at 32-34.

7

Due process requires a trial court to order a psychiatric

8

evaluation or conduct a competency hearing if the court has a good

9

faith doubt concerning the defendant’s competence.

Pate v.

10

Robinson, 383 U.S. 375, 385 (1996); Cacoperdo v. Demosthenes, 37

11

F.3d 504, 510 (9th Cir. 1994).

12

throughout trial.

13

good faith doubt about a defendant’s competence arises “‘if a

14

reasonable judge, situated as was the trial court judge whose

15

failure to conduct an evidentiary hearing is being reviewed, should

16

have experienced doubt with respect to competency to stand trial.’”

17

Maxwell v. Roe, 606 F.3d 561, 568 (9th Cir. 2010) (quoting De

18

Kaplany v. Enomoto, 540 F.2d 975, 983 (9th Cir. 1976)).

19

must be “genuine,” and the simple existence of some evidence

20

indicating possible incompetency does not automatically trigger a

21

hearing.

22

determination that a defendant is competent is a factual finding

23

that is presumed correct.

24

v. Fulford, 462 U.S. 111, 117 (1983).

25

This responsibility continues

Drope v. Missouri, 420 U.S. 162, 181 (1975).

DeKaplany, 540 F.2d at 982-983.

A

The doubt

A state court’s

28 U.S.C. § 2254(e)(1); see also Maggio

Here, Petitioner has not demonstrated that the state court’s

26

reasoned opinion is contrary to, or an unreasonable application of,

27

clearly established United States Supreme Court law.

28

31

Petitioner

1

also fails to demonstrate that the state court’s opinion relied on

2

an unreasonable determination of the facts.

3

As the state court’s reasoned opinion clearly demonstrates, the

4

experience and judgment of the trial judge, together with the prior

5

finding of competence and the evidence of prior malingering on

6

Petitioner’s part, confirm that it was not unreasonable for the

7

trial court not to conduct another competency hearing.

8

competency had already been determined, and he has not demonstrated

9

that there was a substantial change of circumstances or new evidence

Petitioner’s

10

casting a serious doubt on the validity of that finding.

11

53 Cal. 3d at 1153; Opinion at 33.

12

See Jones,

Petitioner’s case may be distinguished from Maxwell, where the

13

Ninth Circuit found that a trial court’s failure to conduct

14

additional competency hearings constituted a due process violation.

15

606 F.3d at 575-576.

16

part of his trial after being placed on a fourteen-day psychiatric

17

hold due to a suicide attempt.

18

that a mental health professional had determined that Maxwell had a

19

mental disorder that rendered him “a danger to others, or to himself

20

or herself, or gravely disabled.”

21

& Inst. Code §§ 5150 & 5240).

22

facts should have triggered a competency hearing and that “[n]o

23

reasonable judge, situated as the state trial judge was here, could

24

have proceeded with the trial without doubting Maxwell’s competency

25

to stand trial.”

26
27
28

In Maxwell, the defendant missed a substantial

Id. at 571-572.

This hold meant

Id. at 572-573 (citing Cal. Welf.

The Ninth Circuit held that these

Id. at 573.

Here, however, no comparable facts were presented to the trial
judge.

There were no attempts at self-harm by Petitioner, and no
32

1

subsequent psychiatric commitment as a result that caused him to

2

miss important parts of his trial.

3

documented history of malingering and “there was overwhelming

4

evidence before the court that Smart was intentionally attempting to

5

appear incompetent at the sanity phase.”

6

it was not unreasonable for the appeals court to uphold the trial

7

court’s finding, and conclude that “Smart’s behavior at the sanity

8

phase was not a substantial change of circumstance when viewed in

9

the context of his extensive documented history with the criminal

10

justice system.”

11

IV.

Opinion at 33.

Moreover, Petitioner had a

Opinion at 33.

Therefore,

Petitioner’s claim must be denied.

State Mental Hospital Confinement

12

In claim four, Petitioner maintains that his federal due

13

process and equal protection rights were violated when he was

14

committed pre-trial to a state mental hospital, allegedly for longer

15

than the time period allowed under Cal. Penal Code § 1370(c).

16

state court addressed this issue in its reasoned opinion on direct

17

appeal.

The

18

The state court first reviewed the history of Petitioner’s

19

commitments and determined that they “ended before expiration of the

20

three-year period” allowed under Cal. Penal Code § 1370(c).

21

at 35.

22

commitments could not exceed six months, an argument that the state

23

court rejected, finding that under the applicable state law, “the

24

maximum period of confinement in Petitioner’s case is three years.”

25

Opinion at 37.

26

App. 4th 895, 904 (2006), the state court denied Petitioner’s claim

27

on the merits.

28

Opinion

Petitioner argued on appeal that his mental hospital

Relying primarily on People v. Johnson, 145 Cal.

33

1

Petitioner has failed to state a valid federal claim.

A person

2

in custody pursuant to the judgment of a state court can obtain a

3

federal writ of habeas corpus only on the ground that he is in

4

custody in violation of the Constitution or laws or treaties of the

5

United States.

6

noncompliance with federal law that renders a State's criminal

7

judgment susceptible to collateral attack in the federal courts."

8

Wilson v. Corcoran, 131 S. Ct. 13, 16 (2010) (emphasis in original).

9

The Supreme Court has repeatedly held that a federal habeas writ is

10

unavailable for violations of state law or for alleged error in the

11

interpretation or application of state law.

12

502 U.S. 62, 67-68 (1991); Engle v. Isaac, 456 U.S. 107, 119 (1982);

13

Peltier v. Wright, 15 F.3d 860, 861-62 (9th Cir. 1994); see also

14

Little v. Crawford, 449 F.3d 1075, 1082 (9th Cir. 2006) (claim that

15

state supreme court misapplied state law or departed from its

16

earlier decisions does not provide a ground for habeas relief).

17

28 U.S.C. § 2254(a).

In other words, "it is only

See Estelle v. McGuire,

While violations of state law generally do not implicate

18

federal due process concerns, a state statute may create a protected

19

"liberty interest"; in such cases, the violation of state law raises

20

federal constitutional concerns on federal habeas corpus.

21

v. Calderon, 59 F.3d 815, 841 (9th Cir. 1995) (Bonin I).

22

however, Petitioner has not even shown that state law was violated,

23

much less that the state law at issue created a liberty interest

24

protected by federal due process law.

25

in its reasoned opinion, the state law at issue allowed for

26

Petitioner’s confinement in a mental hospital for up to three years,

27

and Petitioner was detained for shorter than the three-year limit.

28

34

See Bonin
Here,

As the state court concluded

1

Petitioner cites nothing demonstrating that the state court decision

2

was in error.

3

Because Petitioner has not demonstrated either that the state

4

court’s reasoned opinion is contrary to, or an unreasonable

5

application of, clearly established United States Supreme Court law

6

or that the state court’s opinion relied on an unreasonable

7

determination of the facts, his claim must be denied.

8

V.

Ineffective Assistance of Counsel

9

In claim five, which is related to claim four, Petitioner

10

maintains that his Sixth Amendment rights to effective assistance of

11

counsel were violated when his counsel failed to make a motion

12

challenging his pre-trial commitment at a state mental hospital.

13

According to Petitioner, his commitment was in violation of Cal.

14

Penal Code § 1370(c).2

15

reasoned opinion on direct appeal, holding that because Petitioner

16

had not demonstrated that his commitment was in violation of the

17

applicable law, he had also “not carried his burden of proving

18

either deficient performance or prejudice.”

19

The state court denied this claim in its

Opinion at 40.

The Sixth Amendment guarantees the right to effective

20

assistance of counsel.

21

(1984).

22

Petitioner must show that counsel’s performance was deficient and

23

that the deficient performance prejudiced Petitioner’s defense.

24

at 688.

Strickland v. Washington, 466 U.S. 668, 686

To prevail on a claim of ineffective assistance of counsel,

Id.

To prove deficient performance, Petitioner must demonstrate

25
26
27
28

2

Petitioner did make a pro se motion challenging the time of his
commitment in the state mental hospital. That motion was denied.
Opinion at 35.
35

1

that counsel’s representation fell below an objective standard of

2

reasonableness under prevailing professional norms.

3

counsel’s performance was prejudicial, Petitioner must demonstrate a

4

“reasonable probability that, but for counsel’s unprofessional

5

errors, the result of the proceeding would have been different.

6

reasonable probability is a probability sufficient to undermine

7

confidence in the outcome.”

8
9

Id.

To prove

A

Id. at 694.

Here, Petitioner has not demonstrated that the state court’s
reasoned opinion is contrary to, or an unreasonable application of,

10

clearly established United States Supreme Court law.

11

also fails to demonstrate that the state court’s opinion relied on

12

an unreasonable determination of the facts.

13

Petitioner has not demonstrated that his pre-trial confinement in a

14

state mental hospital was in violation of state or federal law.

15

Given that Petitioner’s confinement was lawful, any motion by

16

Petitioner’s trial counsel arguing that it was improper would likely

17

have been denied.

18

trial counsel make futile objections and, thus, the decision of

19

Petitioner’s counsel was reasonable under these circumstances.

20

Sanders v. Ratelle, 21 F.3d 1446, 1456 (9th Cir. 1994).

21

Furthermore, Petitioner cannot demonstrate that he suffered any

22

prejudice due to his counsel’s failure to bring a motion regarding

23

Petitioner’s confinement.

24

futile, there is no reasonable probability that, had the motion been

25

made, the result of the proceeding would have been different.

26

Strickland, 466 U.S. at 693-694.

27

must be denied.

28

Petitioner

As stated above,

Strickland and its progeny do not require that

See

Given that any motion would have been

Accordingly, Petitioner’s claim

36

1
2

VI.

Prior Convictions
In claim six, Petitioner maintains that his due process rights

3

under Apprendi v. New Jersey, 530 U.S. 466 (2000), were violated

4

because the issue of his prior convictions was determined by a judge

5

and not a jury.

6

reasoned decision on direct appeal.

7
8
9

The state court addressed this issue in its

Smart contends that his constitutional rights were
violated during the portion of his trial relating to the
prior conviction allegations because the jury that decided
the prior conviction allegations was instructed that Smart
“[was] the person whose name appear[ed] on the documents
admitted to establish the convictions.”

10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28

Smart argues this instruction to the jury violated
Apprendi v. New Jersey (2000) 530 U.S. 466, 490
(Apprendi), which holds that “[o]ther than the fact of a
prior conviction, any fact that increases the penalty for
a crime beyond the prescribed statutory maximum must be
submitted to a jury, and proved beyond a reasonable
doubt.” Smart claims he was entitled to a jury
determination as to whether he was the person who suffered
the prior convictions alleged in the information.
Section 1025 provides that “the question of whether
the defendant is the person who has suffered the prior
convictions shall be tried by the court without a jury.”
(§ 1025, subd. c.) This provision does not violate
Apprendi. (People v. Epps (2001) 25 Cal. 4th 19, 23 (Epps)
[citations omitted]). As our Supreme Court explained in
Epps, supra, 25 Cal. 4th at page 23, the Apprendi rule
does not apply to the fact of a prior conviction, and
therefore, is not implicated by section 1025. Therefore,
we reject Smart’s claim that his Apprendi right was
violated.
Opinion at 49.
Petitioner has not demonstrated that the state court’s reasoned
opinion is contrary to, or an unreasonable application of, clearly
established United States Supreme Court law.

Petitioner also fails

to demonstrate that the state court’s opinion relied on an
unreasonable determination of the facts.

37

1

As the state court confirmed, Apprendi holds that any fact that

2

increases the penalty for a crime must be determined by a jury

3

except for “the fact of a prior conviction.”

4

Apprendi and subsequent cases have made clear, the fact of a prior

5

conviction is a sentencing factor that may be relied upon to enhance

6

a sentence without being submitted to a jury or proved beyond a

7

reasonable doubt.

8

411, 414-415 (9th Cir. 2001) (relying on Apprendi to hold prior

9

convictions, whether or not admitted by defendant on record, are

530 U.S. at 490.

As

Id.; United States v. Pacheco-Zepeda, 234 F.3d

10

sentencing factors rather than elements of charged crime).

11

Accordingly, Petitioner’s claim that his prior convictions needed to

12

be determined true by a jury is without merit and must be denied.

13

VII. Length of Sentence

14

In claim seven, Petitioner maintains that his Eighth Amendment

15

rights against cruel and unusual punishment were violated by the

16

imposition of a sentence of seventy-five years to life for his

17

conviction for three counts of indecent exposure with a prior

18

conviction for the same offense.

19

issue in its reasoned opinion on direct appeal.

20
21
22
23
24
25
26
27
28

The state court addressed this

Smart contends that his Three Strikes sentence
violates both the federal and state prohibitions against
cruel and unusual punishment.
“Under the federal Constitution, the issue is whether
the sentence is ‘grossly disproportionate’ to the crime.
[Citation.] Under the state Constitution, the issue is
whether the sentence ‘is so disproportionate to the crime
for which it is inflicted that it shocks the conscience
and offends fundamental notions of human dignity.’
[Citation.]” (People v. Gray (1998) 66 Cal. App. 4th 973,
992 (Gray).) FN13.
In In re Lynch (1972) 8 Cal. 3d 410 (Lynch), our
Supreme Court articulated a three-prong inquiry for
38

1
2
3
4
5
6
7

measuring proportionality pursuant to which courts
(1) consider the nature of the offense and offender,
(2) compare the punishment with the penalty for more
serious crimes in the same jurisdiction, and (3) compare
the punishment to the penalty for the same offense in
different jurisdictions. Before we apply the Lynch factors
in the present case, we summarily reject Smart's
remarkable claim that his case is virtually
indistinguishable from Lynch and that this court is
therefore required by principles of stare decision [sic]
to hold that his sentence constitutes cruel and unusual
punishment. The distinctions between the present case and
Lynch are too numerous and too obvious to merit discussion
here. FN14.

8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28

Turning to the first prong of the Lynch inquiry, Smart
characterizes recidivist indecent exposure as “trivial,” a
nuisance type of offense which causes embarrassment but no
physical or psychological harm. We reject this wishful
thinking and superficial analysis of the first prong of
the Lynch test. To properly evaluate Smart's offenses, we
consider the totality of the circumstances surrounding
those offenses, including such factors as motive, the
manner in which the offenses were committed, the extent of
the defendant's involvement and the consequences of his
acts. (People v. Dillon (1983) 34 Cal. 3d 441, 479.)
Furthermore, our consideration of the nature of the
offense and offender must also take into account the
offender's recidivist behavior. (Gray, supra, 66, Cal.
App. 4th at p. 992; People v. Cartwright (1995) 39 Cal.
App. 4th 1123, 1136.)
Smart's present offenses were all committed against
women under circumstances which created a potential for
aggression or violence. Smart confronted his victims in
secluded places during times they were likely to be alone
and vulnerable. The first time he exposed himself to Nancy
Pangilinan, Smart behaved aggressively, walked straight up
to her car door and forced her to almost hit him in order
to get away. Smart approached Katrina Stanley's home late
at night and exposed himself to her after he could see
that she was alone. Smart then exposed himself to
Pangilinan a second time in the same location as before
which indicates he may have been stalking her or intended
to escalate his aggression. Thus, the totality of the
circumstances relating to these current offenses strongly
suggests that Smart created situations in which the
potential for aggression or violence was very real.
Furthermore, Smart's recidivist history is remarkable
and evidences a pattern of sexually charged criminal
behavior which is far from trivial. Smart was 18 years old
when he was first convicted of indecent exposure in 1959.
39

1
2
3
4
5
6
7
8
9
10
11

He suffered two additional exposure convictions in 1963,
notwithstanding his claim that he was just relieving
himself in public. A 1968 exposure and trespassing
conviction related to crimes Smart committed near the
grounds of a convalescent hospital. He was arrested for
indecent exposure in April 1980, June 1980, and October
1980, and each time pled to other offenses. The October
1980 incident involved allegations that Smart tried to
force his way into an apartment where an 11-year-old girl
and her younger sister were home alone. Smart was arrested
for burglary and attempted sexual assault in October 1982
after breaking into an apartment, awaking the female
occupant, and attempting to forcibly restrain her while
holding a knife. Smart fled when the woman fought back but
was subsequently found and arrested. In 1991, Smart was
charged with raping a 70-year-old woman. There was
evidence of both physical and emotional abuse of the
victim who had limited mobility because of a prior hip
operation and who pleaded with Smart that she was just “an
old lady.” Although Smart was declared incompetent to
stand trial, he was subsequently found competent and was
convicted of the rape.

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Smart's criminal history is not limited to sex
offenses. His other numerous convictions include burglary
and auto theft in 1961, burglary and larceny in 1963,
three burglaries in 1965, and loitering and narcotics
violations in 1967. In 1969, Smart was also charged with
burglary in Louisiana, but jumped bail and fled the State.
He was apprehended the following month in Minnesota after
he was arrested for receiving stolen property. After
serving a sentence in Minnesota, Smart was returned to
Louisiana where he was committed to a state hospital for
six years. During that time, Smart wrote letters
threatening President Ford's life. Smart later explained
he wrote the letters so he could be transferred to a
federal facility. Before he could be tried on the federal
charges, Smart escaped from the state hospital. Smart was
arrested in California in 1976 and was convicted on the
federal charges in 1977. He was also convicted of
defrauding an innkeeper in 1982 and burglary in 1984.
In light of this and other evidence before us, the
first prong of the Lynch test, requiring consideration of
the offenses and offender, including in this case Smart's
very troubling criminal history, does not support Smart's
claim that his sentence is unconstitutionally
disproportionate to his crimes.
Turning to the second prong of the Lynch test, Smart
contends that his sentence for indecent exposure is “out
of balance with the punishment prescribed by California
law for offenses which must be deemed more serious.”
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However, case law establishes that “a comparison of
appellant's punishment for his current crimes with the
punishment for other crimes in California is ‘inapposite
since it is his recidivism in combination with his current
crimes that places him under the three strikes law.’”
(Gray, supra, 66 Cal. App. 4th at p. 993; People v. Ayon
(1996) 46 Cal. App. 4th 385, 400, disapproved on other
ground by People v. Deloza (1998) 18 Cal. 4th 585, 600.)
In other words, a comparison of Smart's punishment for his
offenses, which includes his recidivist behavior, to the
punishment of others who have committed more serious
crimes but have not qualified as repeat offenders is
neither logical nor meaningful. (Ayon, supra, 46 Cal. App.
4th at p. 400.)

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Smart purports to apply the third prong of the Lynch
test by comparing his sentence to potential sentences for
recidivist indecent exposure in other jurisdictions. This
comparison fails, as a factual matter, because Smart's
Three Strikes sentence is not based solely on the fact
that he has been convicted of recidivist exposure. Smart's
prior strikes are for rape and felony burglary. In other
words, we firmly reject Smart's effort to portray himself
as nothing more than a harmless flasher.

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In considering the third prong of the Lynch test we
follow authority establishing that “a comparison of
California's punishment for recidivists with punishment
for recidivists in other states shows that many of the
statutory schemes provide for life imprisonment for repeat
offenders, and several states provide for life
imprisonment without possibility of parole. California's
scheme is part of a nationwide pattern of statutes calling
for severe punishments for recidivist offenders.
[Citation.]” (People v. Cline (1998) 60 Cal. App. 4th
1327, 1338; see also Gray, supra, 66 Cal. App. 4th at p.
993.)
For all of these reasons, we hold that Smart has
failed to establish that his sentence violates either the
federal or state Constitutional prohibitions against cruel
and inhuman punishment.
FN13. Smart does not separately address his federal
constitutional claims but contends that the standard under
the federal constitution is substantially the same as the
California standard.
FN14. We note, simply by way of example, that the
exposure conviction in Lynch was based on proof that a
carhop waitress who had not been summoned approached
defendant’s car and saw him fondling his penis through his
open fly while reading a pornographic magazine. (Lynch,
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supra, 8 Cal. 3rd at p. 438.) The Lynch defendant had a
single prior exposure conviction. The Lynch defendant did
not receive a three strikes sentence but, rather, a one
year to life sentence pursuant to a statute that was no
longer in effect when Smart was sentenced.
Opinion at 49-53 (footnotes in original).
Petitioner cannot demonstrate that the California Court of

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Appeal's reasoned decision was contrary to, or involved an

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unreasonable application of, clearly established United States

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Supreme Court law.

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factual findings were unreasonable.

Nor can he demonstrate that the state court's
Petitioner can cite no clearly

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established law indicating that the state court decision was in

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error.

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Rather, the state court’s reasoning is in accord with the

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applicable law.

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held that California’s three strikes laws violate the Eighth

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Amendment, and the Supreme Court has upheld sentences in habeas

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cases involving three strikes sentences.

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U.S. 63, 68 (2003); Ewing v. California, 538 U.S. 11, 19-20 (2003).

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Indeed, in Andrade, the Supreme Court upheld the sentence of a

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California petitioner who was convicted on two counts of petty theft

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and sentenced to life in prison under the three strikes law,

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concluding it was not one of the “exceedingly rare” and “extreme”

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punishments that violates the Eighth Amendment.

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While the Eighth Amendment forbids sentences that are grossly

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disproportionate to the crime, a criminal defendant’s history of

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recidivism is an important factor of the proportionality equation.

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Ewing, 538 U.S. at 29 (confirming importance of a petitioner’s “long

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history of felony recidivism” in an Eighth Amendment analysis).

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Neither the Supreme Court nor the Ninth Circuit has

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Lockyer v. Andrade, 538

538 U.S. at 73.

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“[T]he presence of violence on a petitioner’s record seems an

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extremely important focal point for proportionality review.”

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v. Lewis, 460 F.3d 1093, 1100 (9th Cir. 2006).

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Taylor

In this case, given the applicable law, Petitioner’s record, and

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the nature of his prior criminal history -- recidivist exposure,

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rape, felony burglary -- the state court’s conclusion that

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Petitioner’s sentence was not unconstitutionally disproportionate to

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his crimes was not unreasonable.

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no Eighth Amendment violation and his claim must be denied.

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Accordingly, Petitioner can show

CONCLUSION
For the foregoing reasons, the Petition for a writ of habeas

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corpus is DENIED.

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Order, a Certificate of Appealability is DENIED.

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the Rules Governing Section 2254 Cases.

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the denial of a Certificate of Appealability in this Court, but may

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seek a certificate from the Ninth Circuit under Rule 22 of the

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Federal Rules of Appellate Procedure.

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Furthermore, for the reasons stated in this
See Rule 11(a) of

Petitioner may not appeal

Id.

The Clerk of Court shall terminate all pending motions as moot,
enter Judgment in accordance with this Order and close the file.

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IT IS SO ORDERED.

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Dated: 10/7/2011
CLAUDIA WILKEN
United States District Judge

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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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ALVIN SMART,

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Plaintiff,

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Case Number: CV09-03127 CW

v.

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CERTIFICATE OF SERVICE

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KELLY HARRINGTON et al,

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Defendant.

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/

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I, the undersigned, hereby certify that I am an employee in the Office of the Clerk, U.S. District
Court, Northern District of California.

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That on October 7, 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 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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Alvin Smart F-17093
Sierra Conservation Center
5150 Obyrnes Ferry Rd.
Jamestown, CA 95327

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Dated: October 7, 2011
Richard W. Wieking, Clerk
By: Nikki Riley, Deputy Clerk

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