Wang v. Pulido et al

Filing 27

ORDER DENYING PETITION FOR WRIT OF HABEAS CORPUS AND GRANTING CERTIFICATE OF APPEALABILITY re 1 Petition for Writ of Habeas Corpus filed by Charles Wang, ***Civil Case Terminated. Signed by Judge Phyllis J. Hamilton on 5/6/13. (nah, COURT STAFF) (Filed on 5/6/2013)

1
2
3
4

UNITED STATES DISTRICT COURT

5

NORTHERN DISTRICT OF CALIFORNIA

6

OAKLAND DIVISION

7
8
9

11
For the Northern DistrictDistrict of California
For the Northern of California

United States District Court
United States District Court

10

No. C 10-1453 PJH (PR)

CHARLES WANG,
Petitioner,

ORDER DENYING PETITION
FOR WRIT OF HABEAS
CORPUS AND GRANTING
CERTIFICATE OF
APPEALABILITY

vs.
EDMUND G. BROWN, JR., California
Attorney General,

12
Respondent.
13

/

14
This is a habeas corpus case filed pro se by a former state prisoner pursuant to 28
15
U.S.C. § 2254, regarding his probation revocation. The court ordered respondent to show
16
cause why the writ should not be granted. Respondent filed an answer and a
17
memorandum of points and authorities in support of it, and lodged exhibits with the court.
18
Petitioner responded with a traverse. For the reasons set out below, the petition is denied.
19
BACKGROUND
20
The specific facts of the underlying offense are not relevant for this federal petition,
21
but in July 2006, petitioner was convicted of inflicting corporal injury on a spouse.
22
Respondent’s Answer (“Answer”) at 2. The trial court suspended imposition of a sentence
23
and placed petitioner on probation for three years. Id. On July 31, 2007, petitioner’s
24
probation was summarily revoked on the grounds that he failed to provide proof of
25
enrollment in and/or completion of a batterers’ intervention program, parenting counseling
26
and community service. Id. The trial court found a violation of probation but reinstated
27
petitioner on probation. Id.
28

1

This federal petition involves the probation department filing a second violation of

2

probation petition in May 2008, alleging that petitioner was terminated from the domestic

3

violence program for failure to benefit and by failing to verify completion of his community

4

service work. Id. After a contested hearing held on August 25, 2008, the trial court found

5

petitioner violated both conditions of probation, revoked probation and sentenced him to

6

three years in state prison. Answer, Exh. 16. Petitioner’s direct appeals and state habeas

7

petitions challenging the second probation hearing and revocation were all denied.

8
STANDARD OF REVIEW
9
A district court may not grant a petition challenging a state conviction or sentence on
the basis of a claim that was reviewed on the merits in state court unless the state court's
11
For the Northern District of California

United States District Court

10
adjudication of the claim: "(1) resulted in a decision that was contrary to, or involved an
12
unreasonable application of, clearly established Federal law, as determined by the
13
Supreme Court of the United States; or (2) resulted in a decision that was based on an
14
unreasonable determination of the facts in light of the evidence presented in the State court
15
proceeding." 28 U.S.C. § 2254(d). The first prong applies both to questions of law and to
16
mixed questions of law and fact, see Williams (Terry) v. Taylor, 529 U.S. 362, 407-09
17
(2000), while the second prong applies to decisions based on factual determinations, See
18
Miller-El v. Cockrell, 537 U.S. 322, 340 (2003).
19
A state court decision is “contrary to” Supreme Court authority, that is, falls under the
20
first clause of § 2254(d)(1), only if “the state court arrives at a conclusion opposite to that
21
reached by [the Supreme] Court on a question of law or if the state court decides a case
22
differently than [the Supreme] Court has on a set of materially indistinguishable facts.”
23
Williams (Terry), 529 U.S. at 412-13. A state court decision is an “unreasonable application
24
of” Supreme Court authority, falling under the second clause of § 2254(d)(1), if it correctly
25
identifies the governing legal principle from the Supreme Court’s decisions but
26
“unreasonably applies that principle to the facts of the prisoner’s case.” Id. at 413. The
27
federal court on habeas review may not issue the writ “simply because that court concludes
28
2

1

in its independent judgment that the relevant state-court decision applied clearly

2

established federal law erroneously or incorrectly.” Id. at 411. Rather, the application must

3

be “objectively unreasonable” to support granting the writ. Id. at 409.

4

Under 28 U.S.C. § 2254(d)(2), a state court decision “based on a factual

5

determination will not be overturned on factual grounds unless objectively unreasonable in

6

light of the evidence presented in the state-court proceeding.” See Miller-El, 537 U.S. at

7

340; see also Torres v. Prunty, 223 F.3d 1103, 1107 (9th Cir. 2000).

8

DISCUSSION

9

As grounds for federal habeas relief, petitioner asserts that: (1) his rights were
violated by delays in holding the probation revocation hearing; (2) there was a delay in

11
For the Northern District of California

United States District Court

10

providing the transcript from the hearing; (3) his counsel was ineffective; and (4) his rights

12

were violated by the loss of documents during a prison transfer. Docket No. 5, Amended

13

Petition (“Petition”) at 9-13.

14

I.

15
16

Timeliness of Revocation Hearing
Petitioner claims that his revocation hearing was unreasonably delayed beyond

forty-five days. Petition at 9.

17

A.

18

With respect to the timing of revocation hearings, there is no clearly established

Standard

19

federal law that requires a probation revocation hearing to take place within forty-five days,

20

as petitioner claims. In Morrissey v. Brewer, 408 U.S. 471 (1972), the Supreme Court

21

stated that a “revocation hearing must be tendered within a reasonable time after the

22

parolee is taken into custody,” and “[a] lapse of two months ... would not appear to be

23

unreasonable.” Id. at 488. The Ninth Circuit has construed Morrissey's holding to mean

24

that delay in a revocation hearing constitutes a due process violation only when the “‘delay

25

in holding a revocation hearing was both unreasonable and prejudicial.’” Camacho v. White,

26

918 F.2d 74, 79 (9th Cir. 1990) (citations omitted).

27

///

28

///
3

1

B.

2

Petitioner raised this claim in a state habeas petition that was denied without a

3

reasoned opinion. Answer, Exhs. 21, 22. When the state court decision does not articulate

4

the rationale for its determination or does not analyze the claim under federal constitutional

5

law, a review of that court's application of clearly established federal law is not possible.

6

Delgado v. Lewis, 223 F.3d 976, 981–82 (9th Cir. 2000). When confronted with such a

7

decision, a federal court must conduct an independent review of the record and the

8

relevant federal law to determine whether the state court's decision was contrary to, or

9

involved an unreasonable application of, clearly established federal law. Id. at 982.
On May 15, 2008, there was an initial hearing regarding a petition for a modification

11
For the Northern District of California

United States District Court

10

Discussion

of probation, and the formal revocation hearing was held on August 25, 2008, 102 days

12

later. Other than citing the number of days, petitioner presents no arguments that this

13

delay prejudiced him as required by Camacho. While 102 days is longer than the two

14

months discussed in Morrissey, petitioner has failed to demonstrate any constitutional

15

violation. Simply stating the delay was unreasonable is insufficient. Petitioner’s

16

“conclusory allegations which are not supported by a statement of specific facts do not

17

warrant habeas relief.” James v. Borg, 24 F.3d 20, 26 (9th Cir. 1994).

18

It appears petitioner's reference to forty-five days involves a stipulated settlement

19

and permanent inunction in Valdivia v. Davis, 206 F. Supp. 2d 1068 (E.D. Cal. 2002).

20

However, this is not clearly established supreme court authority, so cannot provide habeas

21

relief. Moreover, “a remedial court order, such as the one entered in the Valdivia case,

22

does not create rights, privileges or immunities secured by the Constitution.” Soto v. Bd. of

23

Prison Terms, No. CIV S-07-0414 GEB DAD P, 2007 WL 4285381 *1 (E.D. Cal. Dec. 6,

24

2007) (citing Green v. McKaskle, 788 F.2d 1116, 1123-24 (5th Cir. 1986) (remedial decrees

25

are means by which unconstitutional conditions are corrected but do not create or enlarge

26
27
28
4

1

constitutional rights). For all these reasons, this claim is denied.1

2

II.

Transcript

3

Petitioner next argues that a delay in receiving the transcript from the revocation

4

hearing that also contained inaccuracies, prevented him from effectively communicating

5

with his appointed appellate attorney. Petition at 10.

6

A.

7

The Supreme Court has recognized that substantive due process includes access to

Standard

8

the courts and also a criminal defendant's right to obtain a trial transcript for purposes of

9

appeal. Mayer v. Chicago, 404 U.S. 189, 193-95 (1971). A court need only provide an
indigent defendant with a ‘record of sufficient completeness’ to prepare an appeal;

11
For the Northern District of California

United States District Court

10

irrelevant or extraneous portions of the transcript may be omitted. Mayer, 404 U.S. at

12

194-95 (citation omitted). A constitutional violation would occur only if the inaccuracies in

13

the transcript adversely affected appellate review in the state courts. Id. A petitioner “must

14

point to specific errors alleged to have occurred during the unrecorded portions to support a

15

claim that the absence of a complete transcript resulted in prejudicial error requiring a new

16

trial.” Bergerco, U.S.A. v. Shipping Corp. of India, Ltd., 896 F.2d 1210, 1215 (9th Cir.

17

1990).

18

B.

19

This claim was also denied without a reasoned opinion by the state court and

Discussion

20

petitioner’s argument is difficult to understand. Petitioner was appointed an appellate

21

attorney who filed a timely direct appeal on his behalf, that was ultimately denied. It is not

22

clear how petitioner was unable to communicate with his attorney without a transcript or if

23

the attorney had a transcript or if she was hindered by lack of a transcript. Petitioner simply

24

makes this statement but provides no specific details or support nor does petitioner make

25

any attempt to demonstrate any prejudicial error that resulted from the delay or

26
27
28

1

As the court has denied this claim on the merits it will not address respondent’s
additional argument that the claim is procedurally barred as petitioner only objected to the final
one week continuance to hold the revocation hearing.
5

1

inaccuracies of the transcript. These bare allegations are insufficient to warrant habeas

2

relief. See James, 24 F.3d at 26.

3

III.

4
5

Ineffective Assistance of Counsel
Petitioner states that counsel was ineffective for failing to adequately prepare for the

revocation hearing. Petition at 11.

6

A.

7

A claim of ineffective assistance of counsel is cognizable as a claim of denial of the

Standard

8

Sixth Amendment right to counsel, which guarantees not only assistance, but effective

9

assistance of counsel. Strickland v. Washington, 466 U.S. 668, 686 (1984). The
benchmark for judging any claim of ineffectiveness must be whether counsel's conduct so

11
For the Northern District of California

United States District Court

10

undermined the proper functioning of the adversarial process that the trial cannot be relied

12

upon as having produced a just result. Id.

13

In order to prevail on a Sixth Amendment ineffectiveness of counsel claim, petitioner

14

must establish two things. First, he must establish that counsel's performance was

15

deficient, i.e., that it fell below an “objective standard of reasonableness” under prevailing

16

professional norms. Strickland, 466 U.S. at 687–88. Second, he must establish that he

17

was prejudiced by counsel's deficient performance, i.e., that “there is a reasonable

18

probability that, but for counsel's unprofessional errors, the result of the proceeding would

19

have been different.” Id. at 694. A reasonable probability is a probability sufficient to

20

undermine confidence in the outcome. Id.

21

B.

22

Petitioner contends that counsel failed to meet with him for several months despite

Discussion

23

repeated requests and only met with him a few days before the revocation hearing.

24

Petitioner states that counsel failed to secure business documents and witnesses for the

25

hearing. However, on the day of the hearing, petitioner requested and was granted the

26

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

27

Exh. 12 at 26-34. Any claim that counsel was ineffective at the hearing is denied as

28

petitioner represented himself.
6

1

Petitioner’s claim that counsel was ineffective during the time prior to the hearing is

2

also denied. Petitioner states that business documents and witnesses were not obtained,

3

but fails to identify any documents or witnesses that were needed or explain how their

4

absence adversely affected his case. Moreover, at the hearing the co-owner of the

5

domestic violence program that petitioner was required to attend, testified as petitioner’s

6

witness. Petitioner has failed to identify specifically how counsel was ineffective, and even

7

if counsel’s performance was deficient there was no prejudice. This claim is denied.

8

IV.

Lost Legal Documents

transferred to a different prison and guards made it difficult for him to do legal research.

11
For the Northern District of California

Finally, petitioner states that his legal documents were taken when he was

10

United States District Court

9

Petition at 12. Petitioner has again presented conclusory statements and provides no

12

specific information on how his appeals were harmed by these actions or even when this

13

occurred. Moreover, after probation was revoked, petitioner was appointed appellate

14

counsel who filed appeals on his behalf, thus it is not clear what issues he was researching

15

and how it affected his appeal and if this occurred while represented by appellate counsel

16

or while proceeding pro se. As petitioner has not explained how this claim challenges the

17

legality of his confinement, it is denied.

18

V.

19

Appealability
The federal rules governing habeas cases brought by state prisoners require a

20

district court that denies a habeas petition to grant or deny a certificate of appealability

21

(“COA”) in the ruling. See Rule 11(a), Rules Governing § 2254 Cases, 28 U.S.C. foll.

22

§ 2254 (effective December 1, 2009).

23

To obtain a COA, petitioner must make “a substantial showing of the denial of a

24

constitutional right.” 28 U.S.C. § 2253(c)(2). “Where a district court has rejected the

25

constitutional claims on the merits, the showing required to satisfy § 2253(c) is

26

straightforward: The petitioner must demonstrate that reasonable jurists would find the

27

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

28

McDaniel, 529 U.S. 473, 484 (2000). Section 2253(c)(3) requires a court granting a COA
7

1

to indicate which issues satisfy the COA standard.

2

Here, the court finds that one issue presented by petitioner in his petition meets the

3

above standard and accordingly GRANTS the COA as to that issue. See generally Miller-

4

El, 537 U.S. at 322. The issue is whether his rights were violated by delays in holding the

5

probation revocation hearing.

6

Accordingly, the clerk shall forward the file, including a copy of this order, to the

7

Court of Appeals. See Fed. R. App. P. 22(b); United States v. Asrar, 116 F.3d 1268, 1270

8

(9th Cir. 1997).

For the foregoing reasons, the petition for a writ of habeas corpus is DENIED.

11
For the Northern District of California

CONCLUSION

10

United States District Court

9

A Certificate of Appealability is GRANTED. See Rule11(a) of the Rules Governing

12

Section 2254 Cases.

13

The clerk shall close the file.

14

IT IS SO ORDERED.

15

Dated: May 6, 2013.
PHYLLIS J. HAMILTON
United States District Judge

16
17

G:\PRO-SE\PJH\HC.10\Wang1453.HC.wpd

18
19
20
21
22
23
24
25
26
27
28
8