Alspaw v. Miller, C 11-1144 SI (pr)

Decision Date27 September 2011
Docket NumberNo. C 11-1144 SI (pr),C 11-1144 SI (pr)
PartiesRENA G. ALSPAW, Petitioner, v. WALTER MILLER, warden, Respondent.
CourtU.S. District Court — Northern District of California

RENA G. ALSPAW, Petitioner,
v.
WALTER MILLER, warden, Respondent.

No. C 11-1144 SI (pr)

UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF CALIFORNIA

DATED: September 27, 2011


ORDER OF DISMISSAL

INTRODUCTION

Rena G. Alspaw, a pro se prisoner, filed a petition for writ of habeas corpus to challenge her 1996 murder conviction in Santa Clara County Superior Court. Respondent has moved to dismiss the petition as untimely and for failure to state a claim upon which habeas relief may be granted. Alspaw has opposed the motion. For the reasons discussed below, the court will grant the motion and dismiss the petition.

BACKGROUND

Alspaw shot her ex-boyfriend twice in the torso and twice in the head, then emptied his pockets and left his body on the trail where they had gone for a walk. She was convicted in the Santa Clara County Superior Court of first degree murder and was found to have used a firearm in the offense. On September 3, 1996, she was sentenced to 25 years to life plus five years in state prison. She appealed. The California Court of Appeal affirmed the conviction and sentence (with the exception of a restitution order) on February 5, 1998. The California Supreme Court denied her petition for review on April 22, 1998.

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On August 23, 2006, Alspaw filed a petition for writ of habeas corpus in the Santa Clara County Superior Court. On April 28, 2008, Alspaw filed an amended state habeas petition alleging that she was entitled to relief under California Penal Code § 1473.5, a provision that allows defendants to challenge older convictions with new evidence of expert testimony related to intimate partner battering and its effects. The Santa Clara County Superior Court granted the § 1473.5 habeas petition and vacated Alspaw's conviction on June 23, 2009. Her victory was short-lived, however; on August 12, 2010, the California Court of Appeal reversed the order granting the § 1473.5 habeas petition. The California Supreme Court denied her petition for review on November 23, 2010. She filed a petition for writ of certiorari in the U. S. Supreme Court on February 28, 2011. That petition was denied on April 22, 2011, according to an entry on the California Court of Appeal's docket sheet. (The substance of the § 1473.5 petition rulings is discussed later in this order.)

Alspaw then filed this action, seeking a writ of habeas corpus. Her petition has a proof of service indicating that it was mailed to this court on February 28, 2011. The petition was stamped "filed" at this court on March 8, 2011, and came in an envelope postmarked March 7, 2011. The petition is deemed filed as of February 28, 2011.1

Alspaw's federal habeas petition asserts claims for a due process violation and for ineffective assistance of counsel. Respondent now moves to dismiss on the grounds that (a) Alspaw's claims are not cognizable in a federal habeas proceeding because they attack the §1473.5 proceedings rather than the underlying conviction and (b) the claims are untimely. Alspaw has opposed the motion. She also later submitted legislative materials for § 1473.5 as exhibits in support of her petition.

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DISCUSSION

A. Claims Regarding The §1473.5 Proceeding Cannot Support Federal Habeas Relief

1. Background

As noted earlier, Alspaw's § 1473.5 habeas petition was granted by the Santa Clara County Superior Court, but that decision was reversed by the California Court of Appeal. The claims in Alspaw's federal habeas petition concern the California Court of Appeal's decision on that § 1473.5 petition. To analyze respondent's challenge to the federal petition, it is necessary to explain in greater detail what occurred in state court before considering the precise nature of Alspaw's claims to determine if they are of the sort that can be entertained in a federal habeas proceeding.

California Penal Code § 1473.5 provides: "A writ of habeas corpus also may be prosecuted on the basis that expert testimony relating to intimate partner battering and its effects, within the meaning of Section 1107 of the Evidence Code, was not received in evidence at the trial court proceedings relating to the prisoner's incarceration, and is of such substance that, had it been received in evidence, there is a reasonable probability, sufficient to undermine confidence in the judgment of conviction, that the result of the proceedings would have been different."

The California Court of Appeal determined that Alspaw was not entitled to relief under § 1473.5 for two independent reasons. First, "expert testimony relating to intimate partner battering and its effects was received in evidence at the 1996 trial." 2010 WL 3194678, *16 (emphasis added). That meant that she was not entitled to relief because the § 1473.5 procedure was available only if "expert testimony relating to intimate partner battering and its effects, within the meaning of Section 1107 of the Evidence Code, was not received in evidence at the trial court proceedings." Second, "even assuming that expert testimony on intimate partner battering and its effects was not received in evidence at Alspaw's 1996 trial, she has failed to establish prejudice," i.e., she had not made shown that the expert testimony was "'of such substance that, had it been received in evidence, there is a reasonable probability, sufficient to undermine confidence in the judgment of conviction, that the result of the proceedings would

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have been different.'" 2010 WL 3194678, *16 (quoting Cal. Penal Code §1473.5). In determining that there was a lack of prejudice, the state appellate court had "not considered evidence of [victim] Swanson's convictions for animal abuse" because that evidence was "not reviewable" under § 1473.5. 2010 WL 3194678, *19.

In her federal habeas petition, Alspaw asserts two claims. First, she contends that the California Court of Appeal violated her right to due process "by depriving petitioner of her current statutory right [under § 1473.5]; rejecting subsequent IPB [i.e., intimate partner battering] expert exam as current understanding of IPB condition, and failing to allow petitioner to argue Swanson's criminal history of animal cruelty." Petition, p. 6a. She further elaborates that the Court of Appeal's decision deprived her "of her current statutory right for her case to be retried using this new evidence." Id. Second, Alspaw...

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