Coleman v. Sisto

• Decision Date: 30 November 2012
• Docket Number: No. 2:09-cv-0020 DAD,2:09-cv-0020 DAD
• Parties: WILLIE B. COLEMAN Petitioner, v. D.K. SISTO Respondent.
• Court: U.S. District Court — Eastern District of California

WILLIE B. COLEMAN Petitioner,

v.D.K. SISTO Respondent.

No. 2:09-cv-0020 DAD

UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF CALIFORNIA

DATED: November 30, 2012

ORDER

Petitioner is a state prisoner proceeding through counsel with an application for writ of habeas corpus under 28 U.S.C. § 2254. He challenges a 2006 judgment of conviction entered against him in the Solano County Superior Court on charges of second degree robbery (Cal. Penal Code § 211), assault by force likely to produce great bodily injury (Cal. Penal Code § 245(a)(1)), and an enhancement for personal infliction of great bodily injury (Cal. Penal Code § 12022.7(a)). The parties have consented to the magistrate judge's jurisdiction under 28 U.S.C. § 636(c). The matter has been fully briefed by the parties.¹ Below, the court will summarize thefactual and procedural background of the case and address each of petitioner's claims for federal habeas relief.

PROCEDURAL AND FACTUAL BACKGROUND

On appeal in state court, petitioner argued that the evidence introduced at his trial was insufficient to support his conviction on all of the charges against him and that his right to a fair trial was violated by jury misconduct. (Answer, Ex. 1; Clerk's Transcript on Appeal (hereinafter CT), 248.) The California Court of Appeal for the First Appellate District affirmed the judgment of conviction on June 25, 2008. (Answer, Ex. 4.) The state appellate court's opinion on direct appeal provides the following factual summary of the case:

On September 16, 2003, at about 5:30 in the afternoon, Keith Vershay was driving along Pintail Drive in Suisan City, on his way home from his work at Travis Air Force Base. Because of the heat he had lowered the vehicle's windows on both sides. An African-American male stepped in front of the vehicle, and Vershay "slammed on the brakes." The man approached the vehicle, leaned through the open front passenger window, and made some remark as if accusing Vershay of trying to hit him. Vershay told the man he should "stay out of the road." The man then "took a jab" at Vershay. At that same moment Vershay felt a pain in the back of his head and "blacked out."

Other witnesses testified that several young adult African-American males converged on the driver side of the stopped vehicle, pulled Vershay out onto the street, and began beating and kicking Vershay's face and head. Two witnesses, attempting to intervene, began shouting at the males, who then ran off.

Vershay's injuries, in addition to surface lacerations, bruising, and a swollen eye, included seven facial fractures and two breaks in his lower jaw. Because of the fractures both cheekbones were "caved in." The injuries required some four hours of surgery to set and wire his jaw and restore the cheekbones to their proper position. Ultimately Vershay was left with scarring and a loss of muscle control in lower right side of his face.

Vershay testified that his basketball shoes had been taken. Another witness stated that he saw one of the attackers remove something from a wallet he had taken from Vershay's clothing, and toss the wallet onto the street before running from the scene.

An information filed January 6, 2004, charged defendant as one of those who had attacked Vershay. It alleged a felony violation of section 211 (second degree robbery), and a felony violation of section 245, subdivision (a)(1) (assault by means of force likely to produce great bodily injury). The information also included an enhancement allegation under section 12022.7, subdivision (a), to the effect that defendant personally inflicted great bodily injury in his commission of the robbery and assault. On January 12, 2004, defendant entered a plea of not guilty.

Defendant's jury trial commenced over two years later, in March 2006. On March 20, 2006, the jury returned a verdict that found defendant guilty of both counts and found true the enhancement allegation.

Defendant filed a motion for new trial on May 3, 2006, on the ground of juror misconduct. At the sentencing hearing, held on June 13, 2006, the trial court denied defendant's motion. The court went on to impose an upper term of five years imprisonment for defendant's conviction under section 211 and a consecutive term of three years based on the enhancement allegation under section 12022.7. The court stayed imposition of sentence for defendant's conviction under section 245, pursuant to section 654.² Defendant filed a notice of appeal the following day. (§ 1237, subd .(a).)

(Id. at 2-3.)

On August 9, 2007, petitioner filed a petition for writ of habeas corpus in the California Court of Appeal for the First Appellate District, claiming that his trial attorney had rendered ineffective assistance. (Answer, Ex. 5.) That court denied the petition in a reasoned decision dated June 26, 2008. (Answer, Ex. 6.) Petitioner also filed two petitions for review in the California Supreme Court, both of which were summarily denied. (Answer, Ex. 7.)

ANALYSIS

I. Standards of Review Applicable to Habeas Corpus Claims

A writ of habeas corpus is available under 28 U.S.C. § 2254 only on the basis of some transgression of federal law binding on the state courts. See Peltier v. Wright, 15 F.3d 860,861 (9th Cir. 1993); Middleton v. Cupp, 768 F.2d 1083, 1085 (9th Cir. 1985) (citing Engle v. Isaac, 456 U.S. 107, 119 (1982)). A federal writ is not available for alleged error in the interpretation or application of state law. See Estelle v. McGuire, 502 U.S. 62, 67-68 (1991); Park v. California, 202 F.3d 1146, 1149 (9th Cir. 2000); Middleton, 768 F.2d at 1085. Habeas corpus cannot be utilized to try state issues de novo. Milton v. Wainwright, 407 U.S. 371, 377 (1972).

This action is governed by the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA). See Lindh v. Murphy, 521 U.S. 320, 336 (1997); Clark v. Murphy, 331 F.3d 1062, 1067 (9th Cir. 2003). Section 2254(d) sets forth the following standards for granting 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.

See also Penry v. Johnson, 532 U.S. 782, 792-93 (2001); Williams v. Taylor, 529 U.S. 362 (2000); Lockhart v. Terhune, 250 F.3d 1223, 1229 (9th Cir. 2001). If the state court's decision meets one of the criteria set forth in § 2254(d), the federal 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. Robinson v. Ignacio, 360 F.3d 1044, 1055 (9th Cir. 2004). See also Barker v.Fleming, 423 F.3d 1085, 1091 (9th Cir. 2005) ("When more than one state court has adjudicated a claim, we analyze the last reasoned decision"). 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). If the state court reaches a decision on the merits but provides no reasoning to support its conclusion, a federal habeas court independently reviews the record to determine whether habeas corpus relief is available under § 2254(d). Himes v. Thompson, 336 F.3d 848, 853 (9th Cir. 2003); Pirtle v. Morgan, 313 F.3d 1160, 1167 (9th Cir. 2002). When it is clear that a state court has not reached the merits of a petitioner's claim, or has denied the claim on procedural grounds, AEDPA's deferential standard does not apply, and a federal habeas court must review the claim de novo. Nulph v. Cook, 333 F.3d 1052, 1056 (9th Cir. 2003).

II. Petitioner's Claims

Petitioner seeks federal habeas relief from this court on the following grounds: (1) his right to a fair trial and impartial jury was violated when some of the jurors discussed petitioner's decision not to testify in his own defense and when one of the jurors discussed his own professional law enforcement experience with photographic lineups;³ (2) the evidence introduced at his trial was insufficient to support petitioner's conviction on the charges against him; (3) the trial court's imposition of the upper term sentence violated petitioner's right to a jury trial; and (4) petitioner's trial counsel rendered ineffective assistance.

A. Juror Misconduct

Petitioner claims that his federal constitutional rights were violated by two instances of juror misconduct. First, petitioner claims that the deliberating jurors discussed his decision not to testify in his own defense, in violation of a jury instruction that they were not toconsider petitioner's failure to testify. (Pet. at 8.)⁴ Petitioner contends this was prejudicial misconduct that violated his right to a "fair, impartial jury guaranteed by the Sixth and Fourteenth Amendments." (Id.) In the second instance, petitioner claims that one of the jurors, a former police officer, discussed his personal experience with photographic lineups. (Id. at 10.) Petitioner argues that this too was improper and violated his rights to "a fair, impartial jury, to confront witnesses against him, and to due process." (Id.)

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