Armitage v. Brazelton

• Decision Date: 13 February 2015
• Docket Number: No. 2:13-cv-2236 DAD,2:13-cv-2236 DAD
• Court: U.S. District Court — Eastern District of California
• Parties: RUSSELL ZEKE ARMITAGE, Petitioner, v. P. D. BRAZELTON, Warden Respondent.

RUSSELL ZEKE ARMITAGE, Petitioner, v. P. D. BRAZELTON, Warden Respondent.

No. 2:13-cv-2236 DAD

UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF CALIFORNIA

February 13, 2015

ORDER

Petitioner is a state prisoner proceeding pro se with a petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. The parties in this habeas action have consented to proceed before a United States Magistrate Judge pursuant to 28 U.S.C. § 636(c).

Petitioner challenges an August 26, 2011 judgment of conviction entered against him in Sacramento County Superior Court on two counts of oral copulation with a child ten years of age or under in violation of California Penal Code § 288.7(b), two counts of sexual intercourse with a child ten years of age or under in violation of California Penal Code § 288.7(a), and two counts of sodomy with a child ten years of age or under in violation of California Penal Code §288.7(a). The jury also found true the sentencing enhancement allegation, brought pursuant to California Penal Code § 667.5(b), that petitioner had served five prior prison terms. Petitioner seeks federal habeas relief on the sole grounds that the prosecutor committed misconduct at his trial, and violated petitioner's rights to due process and a fair trial, by telling the prospective jurors duringvoir dire that "this was not a 'Three Strikes' case." (ECF No. 1 at 5.) For the reasons set forth below, the court concludes that petitioner is not entitled to federal habeas relief.

I. Background

In its unpublished memorandum and opinion affirming petitioner's judgment of conviction on appeal, the California Court of Appeal for the Third Appellate District provided the following summary of the relevant factual background.¹

Prior to trial, defendant withdrew his motion to bifurcate trial on the prior prison term enhancements; he believed the jury would hear such evidence anyway because he intended to testify.

The next day, the prosecutor expressed concern that because the jury would now be considering the prior prison terms, they might assume the case involved the three strikes law. The prosecutor wanted to negate any biases the jurors might harbor regarding the three strikes law. Accordingly, the prosecutor asked that the prospective jurors be told during voir dire that this is not a three strikes case.

Defense counsel opposed making such a statement to the jury, asserting it was not appropriate for the jury to consider penalty or punishment. Defense counsel asserted that if the People wanted to inform potential jurors that this is not a three strikes case, the only reason for that was to make the jurors "less concerned about the effect" of the case on defendant.

After further argument, the trial court agreed that the prosecutor could inform the prospective jurors during voir dire that this is not a three strikes case, but the prospective jurors would also need to be informed that they must not consider penalty or punishment and cannot consider the priors except as instructed by the trial court.

During voir dire, the prosecutor made the following statement:

"Penalty or punishment: Not something jurors consider. It is fully the purview of the Court if and when someone is convicted. The jurors focus purely on the question of guilt. [¶] So, an example: Three strikes. Controversial issue. This is not a three strikes case. But an example would be that discussion happening in the deliberation room, would be totally inappropriate. Anything surrounding penalty or punishment would be inappropriate to discuss, inappropriate to consider."

The jury convicted defendant on two counts of oral copulation with a child ten years of age or under (Pen. Code, § 288.7, subd. (b); counts one and two),[N.1] two counts of sexual intercourse with a child ten years of age or under (§ 288.7, subd. (a); counts three and four), and two counts of sodomy with a child ten years of age or under (§ 288.7, subd. (a); counts five and six). In addition, the jury found true the allegations that defendant served five prior prison terms. (§667.5, subd. (b).) The trial court sentenced defendant to the following consecutive terms: two terms of 15 years to life on the convictions for oral copulation, four terms of 25 years to life on the convictions for sexual intercourse and sodomy, and one year for each of the prior prison term enhancements.

[N.1] Undesignated statutory references are to the Penal Code.

Armitage, 2012 WL 3871383, at *1-2.

II. Standard of Review Applicable to Habeas Corpus Claims

An application for a writ of habeas corpus by a person in custody under a judgment of a state court can be granted only for violations of the Constitution or laws of the United States. 28 U.S.C. § 2254(a). A federal writ is not available for alleged error in the interpretation or application of state law. See Wilson v. Corcoran, 562 U.S.___, ___, 131 S. Ct. 13, 16 (2010); Estelle v. McGuire, 502 U.S. 62, 67-68 (1991); Park v. California, 202 F.3d 1146, 1149 (9th Cir. 2000).

Title 28 U.S.C. § 2254(d) sets forth the following standards for granting federal habeas corpus relief:

An application for a writ of habeas corpus on behalf of a person in custody pursuant to the judgment of a State court shall not be granted with respect to any claim that was adjudicated on the merits in State court proceedings unless the adjudication of the claim -

(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.

For purposes of applying § 2254(d)(1), "clearly established federal law" consists of holdings of the United States Supreme Court at the time of the last reasoned state court decision. Greene v. Fisher, ___ U.S. ___, 132 S. Ct. 38, 44 (2011); Stanley v. Cullen, 633 F.3d 852, 859 (9th Cir. 2011) (citing Williams v. Taylor, 529 U.S. 362, 405-06 (2000)). Circuit court precedent"may be persuasive in determining what law is clearly established and whether a state court applied that law unreasonably." Stanley, 633 F.3d at 859 (quoting Maxwell v. Roe, 606 F.3d 561, 567 (9th Cir. 2010)). However, circuit precedent may not be "used to refine or sharpen a general principle of Supreme Court jurisprudence into a specific legal rule that th[e] [Supreme] Court has not announced." Marshall v. Rodgers, ___U.S. ___, ___, 133 S. Ct. 1446, 1450 (2013) (citing Parker v. Matthews, ___ U.S. ___, ___, 132 S. Ct. 2148, 2155 (2012)). Nor may circuit precedent be used to "determine whether a particular rule of law is so widely accepted among the Federal Circuits that it would, if presented to th[e] [Supreme] Court, be accepted as correct. Id. Further, where courts of appeals have diverged in their treatment of an issue, it cannot be said that there is "clearly established Federal law" governing that issue. Carey v. Musladin, 549 U.S. 70, 77 (2006) .

A state court decision is "contrary to" clearly established federal law if it applies a rule contradicting a holding of the Supreme Court or reaches a result different from Supreme Court precedent on "materially indistinguishable" facts. Price v. Vincent, 538 U.S. 634, 640 (2003). Under the "unreasonable application" clause of § 2254(d)(1), a federal habeas court may grant the writ if the state court identifies the correct governing legal principle from the Supreme Court's decisions, but unreasonably applies that principle to the facts of the prisoner's case.² Lockyer v. Andrade, 538 U.S. 63, 75 (2003); Williams, 529 U.S. at 413; Chia v. Cambra, 360 F.3d 997, 1002 (9th Cir. 2004). A federal habeas court "may not issue the writ simply because that court concludes in its independent judgment that the relevant state-court decision applied clearly established federal law erroneously or incorrectly. Rather, that application must also be unreasonable." Williams, 529 U.S. at 412. See also Schriro v. Landrigan, 550 U.S. 465, 473 (2007) ; Lockyer, 538 U.S. at 75 (it is "not enough that a federal habeas court, in its independent review of the legal question, is left with a 'firm conviction' that the state court was 'erroneous.'") "A state court's determination that a claim lacks merit precludes federal habeas relief so long as'fairminded jurists could disagree' on the correctness of the state court's decision." Harrington v. Richter, 562 U.S. 86, ___, 131 S. Ct. 770, 786 (2011) (quoting Yarborough v. Alvarado, 541 U.S. 652, 664 (2004)). Accordingly, "[a]s a condition for obtaining habeas corpus from a federal court, a state prisoner must show that the state court's ruling on the claim being presented in federal court was so lacking in justification that there was an error well understood and comprehended in existing law beyond any possibility for fairminded disagreement." Richter, 131 S. Ct. at 786-87.

If the state court's decision does not meet the criteria set forth in § 2254(d), a reviewing court must conduct a de novo review of a habeas petitioner's claims. Delgadillo v. Woodford, 527 F.3d 919, 925 (9th Cir. 2008); see also Frantz v. Hazey, 533 F.3d 724, 735 (9th Cir. 2008) (en banc) ("[I]t is now clear both that we may not grant habeas relief simply because of § 2254(d)(1) error and that, if there is such error, we must decide the habeas petition by considering de novo the constitutional issues raised.").

The court looks to the last reasoned state court decision as the basis for the state court judgment. Stanley, 633 F.3d at 859; Robinson v. Ignacio, 360 F.3d 1044, 1055 (9th Cir. 2004). If the last reasoned state court decision adopts or substantially incorporates the reasoning from a previous state court decision, this court may consider both decisions to ascertain the reasoning of the last decision. Edwards v. Lamarque, 475 F.3d 1121, 1126 (9th Cir. 2007) (en banc). "When a federal claim has been...