Clough v. Evans
| Decision Date | 09 May 2008 |
| Docket Number | No. CV F 06-0903 DLB HC.,CV F 06-0903 DLB HC. |
| Citation | 554 F.Supp.2d 1110 |
| Parties | Johnny J. CLOUGH, Petitioner, v. M.S. EVANS, Respondent. |
| Court | U.S. District Court — Eastern District of California |
Johnny J. Clough, Soledad, CA, pro se.
David Alan Rhodes, California State Attorney General, Sacramento, CA, for Respondent.
ORDER DENYING PETITION FOR WRIT OF HABEAS CORPUS, DIRECTING CLERK OF COURT TO ENTER JUDGMENT IN FAVOR OF RESPONDENT, AND DECLINING TO ISSUE CERTIFICATE OF APPEALABILITY
Petitioner is a state prisoner proceeding pro se with a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254. Pursuant to 28 U.S.C. § 636(c)(1), the parties have consented to the jurisdiction of the United States Magistrate Judge.
Following jury trial in the California Superior Court for the County of Fresno, Petitioner was convicted of one count of violation of California Penal Code1 section 215(a), carjacking; one count of violation of section 211, robbery; and one count of section 245(a)(2), assault with a firearm. Following a court trial on the enhancement for firearm use and his admission of the enhancement of being on bail at the time of the offense, Petitioner was sentenced to a total term of imprisonment of 21 years. (CT 162-163, 258-259.)
Petitioner filed a timely notice of appeal. (Exhibit A.) On August 15, 2005, the California Court of Appeal, Fifth Appellate District affirmed Petitioner's conviction and sentence. (Exhibit B.)
On September 15, 2005, Petitioner filed a petition for review in the California Supreme Court, which was denied on November 16, 2005. (Exhibit C.)
Petitioner filed the instant petition for writ of habeas corpus on July 17, 2006. Respondent filed an answer on January 12, 2007. (Court Doc. 18.) Petitioner did not file a traverse.
On December 10, 2002, about 10:00 p.m., Christopher Border was vacuuming his 1987 BMW at a car wash when three young males, including Garcia [Petitioner's co-defendant] and [Petitioner], ran toward him. Border noticed that [Petitioner] was carrying a shotgun.
Border tried to get into his car, but [Petitioner] grabbed him, pointed the shotgun in his face and punched him in the mouth. [Petitioner] pushed Border to the ground and demanded his keys and money. Garcia smashed the passenger window of the BMW with a baseball bat and yelled at [Petitioner] to [Petitioner] took Border's keys and three or four dollars from his pocket. The third assailant pulled off Border's shoes and ran away. [Petitioner] and Garcia got into the BMW, [Petitioner] in the driver seat and Garcia in the front passenger seat. [Petitioner] stalled the BMW a few times, but eventually started the car and drove away.
Border tried to flag down a motorist. Within a few minutes, Border saw Fresno police officer Adan Cardona and told him what had occurred. Border gave the officer a description of the car and of the'suspects, including what the suspects were wearing and "the tattoos on his face." Officer Cardona immediately broadcast the information.
Officer David Passmore and his partner Officer Eric Panabaker heard the broadcast and responded to the area where the carjacking occurred. ` En route they observed two parked black vehicles. One of the vehicles was flashing its headlights at the other. As the officers approached, one of the cars drove off. The other car, Border's BMW, was abandoned with its doors open and engine running. A description of the second black car, possibly a four-door Honda sedan, was broadcast.
Several minutes later, Officers Martin Van Overbeek and Sam Hernandez stopped [Petitioner] and Garcia in a four-door Honda that matched Officer Passmore's description. The officers noticed a shotgun between [Petitioner's] legs and ordered the men to exit the vehicle. The shotgun was discovered to be loaded. An aluminum baseball bat was found between the door frame and the front passenger seat of the vehicle. Border was brought to the scene and positively identified both [Petitioner] and Garcia.
[Petitioner] and Garcia were interviewed at the police station. Garcia waived his Miranda3 rights and admitted having been in the vicinity of the carjacking, claiming he had been looking for a party. [Petitioner] and Garcia were left alone together in an interview room and their conversation was recorded. During this conversation, Office Eloy Escareno thought he heard [Petitioner] whisper, "All I wanted, was the Bimmer [sic]." He also heard Garcia say that, if he had been the victim, he would just have run away. Defense
[Petitioner] and Garcia attacked the interpretation of the recorded conversation, particularly claiming the alleged statement about the "Bimmer" had not occurred. Garcia's mother testified that the Honda that [Petitioner] and Garcia were driving was hers. The baseball bat found in the car had been left there a week earlier by someone who had broken the window and burglarized the car.
(Exhibit B, Opinion, at 3-4, footnote in original.)
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, 1,504, n. 7, 146 L.Ed.2d 389 (2000). Petitioner asserts that he suffered violations of his rights as guaranteed by the U.S. Constitution. The challenged conviction arises out of the Fresno County Superior Court, which is located within the jurisdiction of this Court. 28 U.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, 138 L.Ed.2d 481 (1997); Jeffries v. Wood, 114 F.3d 1484, 1499 (9th Cir.1997), cert, denied, 522 U.S. 1008, 118 S.Ct. 586, 139 L.Ed.2d 423 (1997) (quoting Drinkard v. Johnson, 97 F.3d 751, 769 (5th Cir.1996)), cert, denied, 520 U.S. 1107, 117 S.Ct. 1114, 137 L.Ed.2d 315 (1997), overruled on other grounds by Lindh v. Murphy, 521 U.S. 320,117 S.Ct. 2059, 138 L.Ed.2d 481 (1997) (). The instant petition was filed after the enactment of the AEDPA and is therefore governed by its provisions.
This Court may entertain a petition for writ of habeas corpus "in behalf of a person in custody pursuant to the judgment of a State court only on the ground that he is in custody in violation of the Constitution or laws or treaties of the United States." 28 U.S.C. § 2254(a).
The AEDPA altered the standard of review that a federal habeas court must apply with respect to a state prisoner's claim that was adjudicated on the merits in state court. Williams v. Taylor, 529 U.S. 362, 120 S.Ct. 1495, 1518-23, 146 L.Ed.2d 389 (2000). Under the AEDPA, an application for habeas corpus will not be granted unless the adjudication of the claim "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 "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." 28 U.S.C. § 2254(d); Lockyer v. Andrade, 538 U.S. 63, 123 S.Ct. 1166, 155 L.Ed.2d 144 (2003) (); Williams v. Taylor, 529 U.S. 362, 120 S.Ct. 1495, 1523, 146 L.Ed.2d 389 (2000). "A federal habeas court may not issue the writ simply because that eourt concludes in its independent judgment that the relevant state-court decision applied clearly established federal law erroneously or incorrectly." Lockyer, at 1175 (citations omitted). "Rather, that application must be objectively unreasonable." Id. (citations omitted).
While habeas corpus relief is an important instrument to assure that individuals are constitutionally protected, Barefoot v. Estelle, 463 U.S. 880, 887, 103 S.Ct. 3383, 3391-3392, 77 L.Ed.2d 1090 (1983); Harris v. Nelson, 394 U.S. 286, 290, 89 S.Ct. 1082, 1086, 22 L.Ed.2d 281 (1969), direct review of a criminal conviction is the primary method for a petitioner to challenge that conviction. Brecht v. Abrahamson, 507 U.S. 619, 633, 113 S.Ct. 1710, 1719, 123 L.Ed.2d 353 (1993). In addition, the state court's factual determinations must be presumed correct, and the federal court must accept all factual findings made by the state court unless the petitioner can rebut "the presumption of correctness by clear and convincing evidence." 28 U.S.C. § 2254(e) (1); Purkett v. Elem, 514 U.S. 765, 115 S.Ct. 1769, 131 L.Ed.2d 834 (1995); Thompson v. Keohane, 516 U.S. 99, 116 S.Ct. 457, 133 L.Ed.2d 383 (1995); Langford v. Day, 110 F.3d 1380, 1388 (9th Cir.1997).
Petitioner contends that the prosecutor engaged in misconduct during closing argument by repeatedly commenting on the clear and convincing standard of proof. Petitioner contends that such comments undermined the court's instructions defining the reasonable doubt standard of proof.
During his rebuttal argument, the prosecutor commented, in pertinent part, as follows:
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