Allen v. Stratton

• Decision Date: 06 March 2006
• Docket Number: No. CV 04-7524-GPS(RC).,CV 04-7524-GPS(RC).
• Citation: 428 F.Supp.2d 1064
• Court: U.S. District Court — Central District of California
• Parties: Troy ALLEN, aka Troy Bernard Allen, Petitioner, v. George STRATTON, Warden, CSP-SAC., Respondent.<SMALL><SUP>1</SUP></SMALL>

428 F.Supp.2d 1064

Troy ALLEN, aka Troy Bernard Allen, Petitioner, v. George STRATTON, Warden, CSP-SAC., Respondent.¹

No. CV 04-7524-GPS(RC).

United States District Court, C.D. California.

March 6, 2006.

COPYRIGHT MATERIAL OMITTED

Troy Allen, Represa, CA, Pro se.

Yun K. Lee, Deputy Attorney General, Office of Attorney General of the State of California, Los Angeles, CA, for Respondent.

ORDER ADOPTING REPORT AND RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE

SCHIAVELLI, District Judge.

Pursuant to 28 U.S.C. Section 636, the Court has reviewed the Petition and other papers along with the attached Report and Recommendation of United States Magistrate Judge Rosalyn M. Chapman, as well as petitioner's objections, and has made a de novo determination.

IT IS ORDERED that (1) the Report and Recommendation is approved and adopted; (2) the Report and Recommendation is adopted as the findings of fact and conclusions of law herein; and (3) Judgment shall be entered denying the petition for writ of habeas corpus and dismissing the action with prejudice.

IT IS FURTHER ORDERED that the Clerk shall serve copies of this Order, the Magistrate Judge's Report and Recommendation and Judgment by the United States mail on the parties.

REPORT AND RECOMMENDATION OF A UNITED STATES MAGISTRATE JUDGE

CHAPMAN, United States Magistrate Judge.

This Report and Recommendation is submitted to the Honorable George P. Schiavelli, United States District Judge, by Magistrate Judge Rosalyn M. Chapman, pursuant to the provisions of 28 U.S.C. § 636 and General Order 01-13 of the United States District Court for the Central District of California.

BACKGROUND

I

On July 3, 2000, in Los Angeles County Superior Court case no. PA035272, a jury convicted petitioner Troy Allen, aka Troy Bernard Allen, of two counts of pimping in violation of California Penal Code ("P.C.") § 266h(a), and in a bifurcated proceeding, the trial court found petitioner had suffered four prior convictions for "serious" or "violent" felonies within the meaning of P.C. §§ 667(b)-(i) and 1170.12(a)-(d) and four prior convictions for which he served a term of imprisonment but did not remain free of custody for five years thereafter within the meaning of P.C. § 667.5(b). Clerk's Transcript ("CT") 258-59, 281-82; Reporter's Transcript ("RT") 553:3-555:12, 577:27-579:3.² Petitioner was sentenced under the Three Strikes law to the total term of 54 years to life in state prison. CT 284-86; RT 591:4-592:8.

Petitioner appealed his convictions and sentence to the California Court of Appeal, which affirmed the judgment in an unpublished opinion filed October 4, 2001. Motion to Dismiss ("Motion"), Exh. C. Petitioner then filed a petition for review in the California Supreme Court, which denied review on December 12, 2001. Motion, Exhs. D-E.

On January 15, 2003,³ petitioner filed a habeas corpus petition in the Los Angeles County Superior Court, which was denied on January 30, 2003. Motion, Exhs. F-G; Notice of Lodgment (December 15, 2004), Lodgment No. 1. On February 6, 2003, petitioner filed a habeas corpus petition in the California Court of Appeal, which was denied on June 11, 2003. Motion, Exhs. H-I. Finally, on September 22, 2003, petitioner filed a habeas corpus petition in the California Supreme Court, which, as amended, was denied on June 30, 2004. Motion, Exhs. J-L.

II

In affirming the trial court's judgment, the California Court of Appeal made the following findings of fact regarding the circumstances underlying petitioner's convictions:⁴ Police Officers Trevin Grant and Pedro Barba stopped petitioner for a traffic violation while he was driving a pickup truck. This was in the City of San Fernando, on January 13, 2000. The officers spoke with petitioner for a few minutes, ascertained that he was from Sacramento, searched the vehicle with his consent, and released him without a citation.

Ten minutes later, the same officers stopped Tyona Dodson and Shannan Bryant on a part of San Fernando Road frequented by prostitutes and known as "the track." The officers stopped Dodson and Bryant on suspicion of prostitution, at the request of an undercover officer. Officer Grant questioned the women, learned that they were from Sacramento, and suspected that they might have a connection with petitioner. When Officer Grant mentioned petitioner's name to the women, Bryant admitted knowing him. Dodson and Bryant were taken to the police station and questioned further but were not arrested.

Petitioner's account of these stops differed in several respects. He testified that Officer Grant made the connection between him and the women only because Officer Grant had seen a photograph of Bryant when he searched the truck, which was owned by Bryant. He also testified that the search was without consent.

Police learned from Dodson and Bryant that each worked for petitioner as a prostitute for' the first time during a trip to Las Vegas in November 1999, which was arranged and paid for by petitioner. During that trip, both gave part of their prostitution income to petitioner. Petitioner instructed them how much to charge for various sex acts and how to determine if clients were police.

Dodson and Bryant worked as prostitutes for petitioner during three other trips to Los Angeles, two in December 1999 and one in January 2000. On each occasion they gave part of their prostitution income to petitioner. During both December trips, petitioner stayed with them in a motel and paid for the room. In the course of all three trips, the women paid petitioner more of their prostitution income than he returned to them in money and goods. Dodson and Bryant also prostituted for petitioner in San Francisco and possibly San Diego.

Petitioner was arrested January 14, 2000, the day after the traffic stop. Petitioner denied having anything more than an "inclination" that Dodson and Bryant were prostitutes, and denied explaining to them any of the rules of prostitution, including how to determine if clients were police. He denied ever taking any money from Dodson. He admitted that he took $400 from Bryant during their Las Vegas trip, but said he did so to hold it for her at her request.

III

On August 31, 2004, petitioner filed the pending habeas corpus petition under 28 U.S.C. § 2254, challenging his convictions and sentence. On December 3, 2004, respondent filed a motion to dismiss, arguing the petition is untimely under the one year statute of limitations established by the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"), 28 U.S.C. § 2244(d). Petitioner failed to file a timely opposition to the motion to dismiss, and a Report and Recommendation was filed finding the petition was untimely and recommending its dismissal on that ground. While the period for objections to the Report and Recommendation was pending, petitioner filed a tardy opposition to the motion to dismiss, arguing the statute of limitations should be equitably tolled for the period he was in administrative segregation and did not have access to his legal materials. After respondent replied to petitioner's opposition, the Court determined petitioner is entitled to equitable tolling and found the pending petition to be timely. Accordingly, the Court withdrew the initial Report and Recommendation, denied the motion to dismiss, and ordered respondent to address the merits of petitioner's claims for relief. On June 8, 2005, respondent filed his answer, and on August 12, 2005, petitioner filed his reply or traverse.

In the habeas corpus petition, petitioner raises the following claims for relief:

Ground One—P.C. § 266h(a) is facially overbroad (Petition at 5);

Ground Two—The arrest of petitioner's wife shortly prior to the time she was scheduled to testify as a defense witness violated petitioner's rights to compulsory process and to present a defense (Id.);

Ground Three—Petitioner's sentence constitutes cruel and unusual punishment under the Eighth Amendment and violates the double jeopardy clause (Petition at 6);

Ground Four—Petitioner's conviction under P.C. § 266h(a) violates petitioner's equal protection rights because it imposes more severe punishment than other similar prostitution statutes (Petition at 7);

Ground Five—Petitioner's conviction under P.C. § 266h(a) violates petitioner's rights to due process and notice because the operative information did not accurately reflect the charges against him (Petition at 8-9);

Ground Six—Petitioner's trial counsel was constitutionally ineffective for failing to move for a judgment of acquittal based upon the difference between the charging information and the proof at trial (Petition at 9-10);

Ground Seven—Petitioner's trial counsel was constitutionally ineffective for failing to request a jury instruction on the necessity of viewing accomplice testimony with distrust (Petition at 10-12);

Ground Eight—Petitioner's trial counsel was constitutionally ineffective for failing to request jury instructions on a lesser-included offense under P.C. § 653.23(a)(2) (Petition at 12-13);

Ground Nine—Petitioner's trial counsel was constitutionally ineffective for failing to object to the arrest of petitioner's wife shortly before she was scheduled to testify as a defense witness (Petition at 13);

Ground Ten—Petitioner's trial counsel was constitutionally ineffective for failing to object to petitioner's sentence on Eighth Amendment and double jeopardy grounds (Petition at 13-14);

Ground Eleven—Petitioner's trial counsel was constitutionally ineffective for failing to object to petitioner's convictions on due process and notice grounds, as set forth in Ground Five (Petition at 14);

Ground Twelve—Petitioner's rights to due process and a fair trial were violated by the cumulative prejudicial effect of the errors set forth in Grounds One through Eleven (Petition at 14);

Ground Thirteen—The evidence presented at trial was insufficient to support petitioner's convictions (Petition at...