Cartwright v. Fox

• Decision Date: 14 March 2016
• Docket Number: Case No. 1:13-cv-00463 AWI MJS (HC)
• Parties: HENRY CARTWRIGHT, Petitioner, v. ROBERT W. FOX, Warden, Respondent.
• Court: U.S. District Court — Eastern District of California

HENRY CARTWRIGHT, Petitioner, v. ROBERT W. FOX, Warden, Respondent.

Case No. 1:13-cv-00463 AWI MJS (HC)

UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF CALIFORNIA

March 14, 2016

FINDINGS AND RECOMMENDATION REGARDING PETITION FOR WRIT OF HABEAS CORPUS

Petitioner is a state prisoner proceeding pro se with a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254. Respondent, warden of California Medical Facility, Vacaville, is hereby substituted as the proper named respondent pursuant to Rule 25(d) of the Federal Rules of Civil Procedure. Respondent is represented by Max Feinstat of the office of the Attorney General.

I. PROCEDURAL BACKGROUND

Petitioner is currently in the custody of the California Department of Corrections pursuant to a judgment of the Superior Court of California, County of Kern, following his conviction by jury trial on September 24, 2009, for torture, assault with a deadly weapon, infliction of corporal injury resulting in a traumatic condition, criminal threats, and various enhancements. (Clerk's Tr. at 463-64.) Petitioner was sentenced to an indeterminate term of nineteen (19) years to life in state prison. (Id.)

Petitioner filed a direct appeal with the California Court of Appeal, Fifth Appellate District on December 30, 2010. (Lodged Doc. 1) The court affirmed the judgment on October 27, 2011. (Lodged Doc. 4, People v. Cartwright, 2011 Cal. App. Unpub. LEXIS 8229 (Oct. 27, 2011).) On January 4, 2012, the California Supreme Court denied review. (Lodged Doc. 6.)

Petitioner next sought collateral review by way of petitions for writ of habeas corpus in state court. Petitioner first filed a habeas corpus petition with the Kern County Superior Court on November 4, 2009. (Lodged Doc. 8.) The court denied the petition in a written decision on December 29, 2009. (Lodged Doc. 9.) Petitioner then filed a second habeas corpus petition with the Kern County Superior Court on May 17, 2010. (Lodged Doc. 10.) The petition was denied on August 15, 2010. (Lodged Doc. 11.) Petitioner filed a third habeas corpus petition with the Kern County Superior Court on August 20, 2010. (Lodged Doc. 12.) The court denied the petition on October 1, 2010. (Lodged Doc. 13.) Petitioner filed a fourth habeas corpus petition with the Kern County Superior Court on June 28, 2011. (Lodged Doc. 14.) The court denied the petition on August 29, 2011. (Lodged Doc. 15.) Petitioner filed a fifth habeas corpus petition with the Kern County Superior Court on July 25, 2011. (Lodged Doc. 16.) The court denied the petition on August 17, 2011. (Lodged Doc. 17.)

Petitioner then filed for habeas relief with the Fifth District Court of Appeal on August 8, 2012. (Lodged Doc. 18.) Pursuant to Petitioner's request, the court dismissed the petition on September 19, 2012. (Lodged Doc. 19.)

Finally Petitioner sought habeas review from the California Supreme Court. He filed his first petition with the court on May 11, 2012. (Lodged Doc. 20.) The court denied the petition on July 25, 2012. (Lodged Doc. 21.) Petitioner filed a second petition with theCalifornia Supreme Court on March 21, 2013. (Lodged Doc. 22.) The court denied the petition on May 22, 2013. (Lodged Doc. 23.)

Petitioner filed the instant federal habeas petition on March 29, 2013. (Pet., ECF No. 1.) On December 1, 2014, Petitioner filed an amended petition with the Court. (Am. Pet., ECF No. 27.) Petitioner presents six claims for relief in the instant petition. Petitioner alleges: (1) that there was insufficient evidence to support the convictions for infliction of great bodily injury and torture based on the undetermined severity of the burns suffered by the victim; (2) that the definition of great bodily injury under California law is constitutionally vague; (3) that the trial court erred in failing to declare a mistrial after the prosecution asked a question that informed the jury of Petitioner's past criminal acts; (4) that Petitioner's right to effective assistance of counsel was violated; (5) that the cumulative effect of errors committed at trial rendered the proceedings fundamentally unfair; and (6) that Petitioner's sentence for his conviction for criminal threats should be stayed, rather than run concurrently with the sentences from his other convictions. (Id. at 4-6.) Respondent filed an answer to the petition on April 23, 2015. (ECF No. 38.) Despite the fact that the answer was filed with the Court, Petitioner filed a motion for court order granting habeas relief for Respondent's failure to answer the Petition on May 26, 2015. (ECF No. 40.) Observing that Petitioner did not receive a copy of the answer, Respondent served Petitioner with another copy of the answer on June 10, 2015. (ECF No. 42.) Despite filing several motions for extension of time, Petitioner did not timely file a traverse. Accordingly, the matter stands ready for adjudication.

II. STATEMENT OF THE FACTS¹

As of 2009, defendant and Kimberly D. had lived together in Bakersfield for four years, but they were not married. They had two children together; however, both children had been removed from their custody and placed with Kimberly's mother, Sheila D. (Sheila). Kimberlyhad two older children from prior relationships, both of whom had also been removed from her custody; one of those children also lived with Sheila.

Kimberly worked as an exotic dancer at "adult entertainment" clubs in Bakersfield and Southern California. Kimberly's relationship with her children and Sheila deteriorated as she continued to live with defendant and work as a dancer. Kimberly seldom called or saw her mother. Kimberly had received supervised weekly visitation rights with her two youngest children, but she repeatedly failed to visit them. On one occasion, she cancelled a scheduled visit and told Sheila that she did not want the children to see that she had a black eye. Kimberly eventually lost her parental rights to all her children.

The voicemail recording

On the evening of January 22, 2009, Sheila attended church with the children. When she left the service, she discovered that a voicemail message had been left on her cell phone a few hours earlier. The call had been placed to Sheila's cell phone from the landline telephone at Kimberly's apartment. Sheila listened to the message and heard screaming.

The voicemail recording did not consist of a conventional cell phone message. Instead, it recorded a chaotic and harrowing exchange between a man and a woman, as the man apparently attacked the woman with a hot clothes iron. Sheila testified the voices belonged to defendant and Kimberly.

As the recording began, defendant declared that he was going to get Kimberly and she was going to die. Kimberly insisted that she didn't want anyone else. Kimberly wailed and moaned that defendant was burning her with an iron. Defendant repeatedly said that she would "burn in hell," and "[t]his is your day." Kimberly cried and pleaded with defendant that she loved him. Defendant replied that she was lying, and that he warned her not to fool around. Kimberly again cried out that he was burning her with the iron, and he was burning her for nothing because she was not involved with someone else.

Defendant repeatedly declared that she was going to die that day. Kimberly pleaded with defendant to stop and again said that she loved him. Defendant said she was going to die, and he was going to burn her until she "cap[ped] out." Kimberly swore that she loved him and not someone else. Defendant replied: "Bitch, you hoe ass mother f*****." The recording ended abruptly.

Kimberly's initial statements

After Sheila listened to the voicemail recording, she saved it on her cell phone and called Kimberly to check on her welfare. Kimberly said she was okay and that the incident had occurred earlier that day. Kimberly said she could not talk because defendant was present. Kimberly promised to "take care" of the situation the next day. Sheila told Kimberly that she would report the incident to the police if Kimberly failed to do so.

Kimberly arrives at Sheila's house

On January 23, 2009, Sheila called Kimberly but could not reach her. Sheila called the police and reported the previous day's incident. Later that day, a dispatch operator advised Sheila that a patrol car went to Kimberly's residence, and Kimberly had refused service. [fn2]

FN2: At trial, Kimberly testified that her mother sent the police to her apartment to check on her, and she told them that she was okay. Also at trial, Bakersfield Police Officer Pence testified that based on dispatch records, officers went to Kimberly's apartment to conduct a welfare check, they spoke with Kimberly, and she appeared to be okay. The officers who conducted the welfare check did not testify.

Late that evening, Kimberly and a girlfriend arrived at Sheila's house, and Kimberly asked to see her children. Kimberly had a sweater on her arm, and then took it off and complained the sweater was hurting her arm.

Sheila testified that Kimberly had burn marks on her face and arm. There was a "brown spot" on the left side of Kimberly's face and jaw in the shape and mark of a clothes iron. Kimberly's left arm was burned from her shoulder to the inside of her elbow in the triceps area. Sheila could see "the prints of an iron going up her arm," that were "pressed — like angles." Sheila testified the burn marks were raw, red, pink, and had pus on them. Kimberly had covered the burns with some type of ointment.

Kimberly told Sheila that she was going to Los Angeles for the weekend with her girlfriend. Kimberly said she couldn't work at the nightclub because of the burns, and she needed to get away from defendant. Kimberly promised to "take care" of the situation when she returned.

Kimberly talks to the police

A few days later, Kimberly returned to Bakersfield but told her mother that she was not ready to talk to the police. On January 29, 2009, Kimberly finally said that she was ready, and Sheila and Kimberly filed a report with the police

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