Bakken v. Scribner

• Decision Date: 05 October 2011
• Docket Number: 1:05-cv-1133-LJO-DLB (HC)
• Court: U.S. District Court — Eastern District of California
• Parties: CHRISTOPHER DUANE BAKKEN, Petitioner, v. A. K. SCRIBNER, et.al., Respondents.

CHRISTOPHER DUANE BAKKEN, Petitioner,

v.A. K. SCRIBNER, et.al., Respondents.

1:05-cv-1133-LJO-DLB (HC)

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF CALIFORNIA

Dated: October 5, 2011

FINDINGS AND RECOMMENDATION REGARDING PETITIONER'S MOTION FOR

IMMEDIATE RELEASE, MOTION FOR SUMMARY JUDGMENT, AND PETITION FOR WRIT OF HABEAS CORPUS

Petitioner is a state prisoner proceeding with a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254. Petitioner is represented by Meredith Fahn, Esq.

BACKGROUND INFORMATION

Petitioner is currently serving a sentence of twenty-five years to life following his conviction of being an inmate in possession of a weapon. Petitioner filed a timely appeal, and the California Court of Appeal affirmed the judgment. The California Supreme Court denied review on June 9, 2004.

Petitioner filed the original federal petition in this case on September 7, 2005. Petitioner filed an amended petition on December 11, 2005.

On November 22, 2005, Petitioner filed a state habeas corpus petition in the Kings County Superior Court. The petition was denied on March 10, 2006.

In the meantime, on February 22, 2006, Petitioner filed a motion to stay and hold the petition in abeyance pending exhaustion. On February 27, 2006, Respondent filed a non-opposition motion.

On March 7, 2006, the Court granted Petitioner's motion to stay the instant petition and directed Petitioner to file a status report every sixty days thereafter.

On April 10, 2006, Petitioner filed a petition in the California Court of Appeal, Fifth Appellate District. The petition was denied on December 7, 2006.

On December 20, 2006, Petitioner filed a petition for review in the California Supreme Court. On February 28, 2007, the petition for review was granted and the matter was transferred to the state appellate court with directions to issue an order to show cause why Petitioner was not entitled to relief based on ineffective assistance of trial counsel.

On March 6, 2007, the Fifth Appellate District vacated its December 7, 2006 order denying the habeas petition. The appellate court then issued an order to show cause why Petitioner was not entitled to relief based on ineffective assistance of trial counsel. The appellate court also ordered a hearing on the issue.

An evidentiary hearing was held over several days in early 2008. The court denied the habeas petition thereafter.

Petitioner filed a habeas petition in the Fifth Appellate District on August 27, 2009. The petition was denied on December 10, 2009.

Petitioner filed a petition for review on December 23, 2009. The petition was denied on February 18, 2010.

Petitioner filed a Second Amended Petition in this Court on March 22, 2010.

On March 7, 2011, the Court dismissed Claims One and Two of the Second Amended Petition without prejudice for failure to exhaust the state judicial remedies.

On April 5, 2011, Petitioner filed a motion for summary judgment on Claim Five of the Second Amended Petition, along with a motion for immediate release. On May 25, 2011, Respondent filed an opposition to Petitioner's motion for immediate release, and Petitioner filed a reply on June 6, 2011.

On June 16, 2011, Respondent filed an opposition to Petitioner's motion for summary judgment, and Petitioner filed a reply on June 217, 2011.Respondent also filed a second amended answer to the Second Amended Petitioner on June 23, 2011.

STATEMENT OF FACTS¹

On direct appeal, the appellate court made factual findings with respect to some of the claims presented in the Second Amended Petition. The Court must consider these facts. To the extent the facts were further developed in relation to Claim Five of the Second Amended Petition during the state court evidentiary, such facts will be discussed in the analysis portion of that claim. As Respondent correctly argues, the Court must presume the correctness of a factual issue determined by a state court, absent clear and convincing evidence. See Pirtle v. Morgan, 313 F.3d 1160, 1168 (9th Cir. 2002), citing, Appel v. Horn, 250 F.3d 203, 210 (3d Cir. 2001); 28 U.S.C. § 2254(e)(1). The facts as determined on direct appeal are as follows:

Appellant is an inmate at Corcoran State Prison. On July 17, 2001, correctional officers Chris Daulton and Ruben Zaragosa approached appellant's cell and asked him whether he wanted to go to the exercise yard. Appellant responded in the affirmative, and the officers began the process of removing appellant from his cell. Initially, the officers opened the food port door and had appellant extend his arms through the port while standing with his back to the door. The officers placed handcuffs on appellant and he removed his arms from the door. The officers signaled another officer to open the door, while appellant remained standing with his back to the door. After the door was opened, appellant looked down over his shoulder and said "What's that" while kicking something away from his cell. Daulton testified that he saw an object wrapped in paper on the ground that he pushed back into appellant's cell. The officers then transported appellant to the exercise yard and Daulton subsequently returned to examine the item he had seen on the ground. He discovered a sharpened metal object wrapped inside of the paper.

Daulton testified that when he first saw the item in question it was in the track of the cell door. He explained that the cell door is suspended above the floor and the door slides into the wall. After discovering the weapon, appellant was brought back from the yard and placed in a rotunda area. After telling appellant what was found in his cell, appellant began yelling something to the effect of "Spot, it's gone ... they've got it." Daulton admitted he had not put appellant's statement in his report, and the first time he told anyone of the statement was the first day of trial. He claimed he had omitted the statement from the report because he did not realize it was important at the time. Daulton testified that Saragosa was present when appellant made the statement, and Daulton informed Sergeant Lloren of the statement that day.

Correctional officer Johnny Diaz testified that inmates in prison often transfer items from cell to cell with "fishing line." Fishing line is made by tying strips of cloth to each other and attaching a weight to the end. The inmates throwone end of the line onto the tier and hook it to another line. Then the item is attached to the line, and the inmate pulls it into his cell. Diaz stated that it is common to find fishing line in inmates' cells. Additionally, he noted that inmates sometimes hide weapons under their cell doors by securing the weapon to the bottom of the door. If the weapon comes loose, it will remain in the door track when the door is opened.

Medical technical assistant Damon Miller testified that he worked at the prison and had come into contact with appellant. He had problems with appellant not following procedure when taking his medication. As a result he informed the correctional officers, who searched the cell. Miller also requested appellant be moved to a cell with a solid door because appellant had threatened him.

The day before the weapon was found in the track of appellant's cell door, Miller informed Sergeant Adrian Lloren that appellant had not been taking his medication. Subsequently, Miller and Officer Juan Reya conducted a search of appellant's cell. Fishing line was recovered during the search.

FN4. Appellant became agitated when Miller arrived to search his cell. Appellant became calm after he was told that Miller would not participate in a search of his cell. After appellant was removed from his cell, Miller in fact participated in the search.

Correctional officer Juan Alvarez moved appellant to a new cell after Miller's complaint. During the move, all of appellant's belongings were searched. During the search Alvarez found a weapon wrapped in plastic hidden in a bag of soup noddles. He also found a syringe, an extra plunger, and three used matches during the search. Appellant does not challenge the conviction based upon the results of this search. Defense Case

Zaragosa testified that he recalled appellant yelling something to "Spot" when he was in the rotunda area after Daulton found the weapon. He noted that the statement was not included in any report, but claimed he had told the prosecutor about the statement sometime prior to trial. The parties stipulated that Saragosa did not mention the statement to the prosecutor prior to trial. Sergeant Lloren testified that he was present on the day the weapon was found on the floor in appellant's cell. He did not recall hearing appellant yell anything on that occasion.

Appellant claimed Miller planted the weapons in his cell. Appellant pointed to the fact that Miller assisted in a search of appellant's cell the day before one of the weapons was found in his cell.

(LD 2 at 3-5.)

DISCUSSION

I. Jurisdiction

Relief by way of a petition for writ of habeas corpus extends to a person in custody pursuant to the judgment of a state court if the custody is in violation of the Constitution or laws or treaties of the United States. 28 U.S.C. § 2254(a); 28 U.S.C. § 2241(c)(3); Williams v. Taylor, 529 U.S. 362, 375, 120 S.Ct. 1495, 1504, n.7 (2000). Petitioner asserts that he suffered violations of his rights as guaranteed by the U.S. Constitution. The challenged conviction arises out of the Kings County Superior Court, which is located within the jurisdiction of this Court. 28U.S.C. § 2254(a); 2241(d).

On April 24, 1996, Congress enacted the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"), which applies to all petitions for writ of habeas corpus filed after its enactment. Lindh v. Murphy, 521 U.S. 320, 117 S.Ct. 2059, 2063 (1997; Jeffries v. Wood, 114 F.3d 1484, 1499 (9th Cir. 1997), cert. denied, 522 U.S. 1008, 118 S.Ct. 586 (1997) (quoting Drinkard v. Johnson, 97 F.3d 751, 769 (5th Cir.1996), cert. denied, 520 U.S. 1107, 117 S.Ct. 1114 (1997)...