Cromp v. Clark
| Decision Date | 17 March 2011 |
| Docket Number | No. S:08-cv-1822 JAM KJN P,S:08-cv-1822 JAM KJN P |
| Parties | JONATHAN CROMP, Petitioner, v. KEN CLARK, Warden, Respondent. |
| Court | U.S. District Court — Eastern District of California |
Petitioner is a state prisoner proceeding without counsel with an application for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. Petitioner challenges his 2006 conviction on multiple counts of child molestation. Petitioner was sentenced to 180 years in prison. Petitioner raises four claims: (1) evidence of petitioner's prior sexual offense was improperly admitted to prove predisposition; (2) the use of jury instruction CALCRIM No. 1191 violated due process; (3) petitioner's sentence violates the Eighth Amendment; and (4) petitioner's constitutional rights were denied by the imposition of consecutive sentences without benefit of a jury trial. Aftercareful review of the record, this court concludes that the petition should be denied.1
On April 5, 2006, petitioner was convicted by a jury of six counts of lewd acts with a child under the age of fourteen years, in violation of California Penal Code § 288(a). (Clerk's Transcript ("CT") at 210-13; 216-21.) The jury also found that petitioner had committed the charged offenses against multiple victims, California Penal Code § 667.61(e)(5). (CT at 115-21, 123.) After petitioner waived his right to a jury trial on the prior conviction allegation (1 Reporter's Transcript ("RT") at 31-32, 59-60), the court found petitioner had previously been convicted of a serious or violent felony within the meaning of California Penal Code § 1170.12. (CT at 123.) On each count, petitioner was sentenced to serve thirty years to life in state prison (15 years to life doubled pursuant to California Penal Code § 1170.12); and the court ordered petitioner to serve each sentence consecutively to the other.2 (CT 210-13; 21621.) Petitioner is therefore serving an aggregate 180 year term in state prison. (Id.)
On April 5, 2006, petitioner filed a timely appeal in the California Court of Appeal, Third Appellate District. (CT at 214.) The Court of Appeal affirmed petitioner's conviction and sentence on July 17, 2007. People v. Cromp, 153 Cal.App.4th 476 (Cal. 3d 2007); Respondent's Lodged Document ("LD") 1.)
Petitioner filed a petition for rehearing (LD 2), which was denied on August 14, 2007 (LD 3).
Petitioner filed a petition for review in the California Supreme Court (LD 4), which was denied on September 25, 2007 (LD 5).
On August 6, 2008, petitioner filed the instant petition.
The opinion of the California Court of Appeal provides the following factual summary:
[Petitioner] makes no contention that the evidence was insufficient, and, because we find no error, it is unnecessary to engage in a harmless error analysis. Therefore, we include only the most material facts, drawing all reasonable inferences in favor of the judgment. (See In re James D. (1981) 116 Cal.App.3d 810, 813, 172 Cal.Rptr. 321.)
The victims, D.B. and J.B., are brothers. At the time of the molestations, D.B. was eight years old and J.B. was four years old. [Petitioner] was the live-in boyfriend of Sherry B., J.B.'s paternal grandmother. Sherry and [petitioner] often went to the home where D.B. and J.B. lived. For a couple of weeks or a month, [petitioner] lived in the same household as the victims.
When [petitioner] and D.B. were alone in the residence, [petitioner] fondled D.B.'s penis, testicles, and anus, sometimes with [petitioner's] hand and sometimes with his mouth. This happened, at times, when D.B.'s clothes were off, but also happened when he was clothed. The molestation occurred at least four times while [petitioner] was living in the household. On one occasion, [petitioner] had D.B. touch [petitioner's] penis.
D.B. saw [petitioner], in a closet, touching J.B.'s private areas with [petitioner's] hand. J.B.'s clothes were off. [Petitioner] put his mouth on J.B.'s penis. [Petitioner] threatened D.B. that, if D.B. told anyone, [petitioner] would hurt everyone in the house. While J.B. was on a couch watching cartoons, on another occasion, [petitioner] touched J.B.'s penis. When J.B.'s mother was gone, [petitioner] directed J.B. into his mother's bedroom and told J.B. to take his pants off. [Petitioner] touched J.B.'s private area. J.B.'s mother came home and caught [petitioner] in her bedroom. She told him to leave. J.B. told his counselor that he was touched numerous times in his private areas.
[Petitioner] denied molesting the boys. He claimed he was never alone with them.
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 Estelle v. McGuire, 502 U.S. 62, 67-68 (1991); Park v. California, 202 F.3d 1146, 1149 (9th Cir. 2000).
Federal habeas corpus relief is not available for any claim decided on the merits in state court proceedings unless the state court's 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.
28 U.S.C. § 2254(d).
Under section 2254(d)(1), a state court decision is "contrary to" clearly established United States Supreme Court precedents if it applies a rule that contradicts the governing law set forth in Supreme Court cases, or if it confronts a set of facts that are materially indistinguishable from a decision of the Supreme Court and nevertheless arrives at different result. Early v. Packer, 537 U.S. 3, 7 (2002) (citing Williams v. Taylor, 529 U.S. 362, 405-06 (2000)).
Under the "unreasonable application" clause of section 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. Williams, 529 U.S. at 413. A federal habeas court Id. at 412; see also Lockyer v. Andrade, 538 U.S. 63, 75 (2003) () (internal citations omitted). "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, 131 S. Ct. 770, 786 (2011).
The court looks to the last reasoned state court decision as the basis for the state court judgment. Avila v. Galaza, 297 F.3d 911, 918 (9th Cir. 2002). If there is no reasoned decision, "and the state court has denied relief, it may be presumed that the state court adjudicated the claim on the merits in the absence of any indication or state-law procedural principles to the contrary." Harrington, 131 S. Ct. at 784-85. That presumption may be overcome by a showing that "there is reason to think some other explanation for the state court's decision is more likely." Id. at 785 (citing Ylst v. Nunnemaker, 501 U.S. 797, 803 (1991)).
Where the state court reaches a decision on the merits but provides no reasoning to support its conclusion, the federal court conducts an independent review of the record. "Independent review of the record is not de novo review of the constitutional issue, but rather, the only method by which we can determine whether a silent state court decision is objectively unreasonable." Himes v. Thompson, 336 F.3d 848, 853 (9th Cir. 2003). Where no reasoned decision is available, the habeas petitioner has the burden of "showing there was no reasonable basis for the state court to deny relief." Harrington, 131 S. Ct. at 784. "[A] habeas court must determine what arguments or theories supported or,... could have supported, the state court's decision; and then it must ask whether it is possible fairminded jurists could disagree that those arguments or theories are inconsistent with the holding in a prior decision of this Court." Id. at 786.
Petitioner claims evidence of his prior sexual offense was improperly admitted to prove predisposition in violation of his constitutional rights.
The last reasoned rejection of this claim is the decision of the California Court of Appeal for the Third Appellate District on petitioner's direct appeal. The state court addressed this claim as follows:
Over [petitioner's] objections based on statute and constitution, the trial court allowed the prosecution to present evidence of a rape [petitioner] committed in 1993. On appeal, [petitioner] contends the trial court abused its discretion and violated his constitutional due process and fair trial rights. The contention is without merit.
The defense and prosecution stipulated that, rather than having the developmentally disabled victim of the prior rape testify, the following stipulation would be read to the jury:
"On August 25, 1993, [petitioner] [ ] had sexual intercourse with Lynn, age 24 at the time, who is developmentally disabled and a client of Far Northern Regional Center. It is apparent upon meeting Lynn that she is mentally challenged.
According to the police report, the [petitioner] and a friend of his approached Lynn...
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