Dones v. Allison
| Decision Date | 28 December 2022 |
| Docket Number | 22cv282-MMA(BLM) |
| Parties | TOMMY PEDRO DONES, Petitioner, v. KATHLEEN ALLISON, Respondent. |
| Court | U.S. District Court — Southern District of California |
TOMMY PEDRO DONES, Petitioner,
v.
KATHLEEN ALLISON, Respondent.
No. 22cv282-MMA(BLM)
United States District Court, S.D. California
December 28, 2022
REPORT AND RECOMMENDATION FOR ORDER DENYING PETITION FOR WRIT OF HABEAS CORPUS [ECF NO. 1]
Hon. Barbara L. Major, United States Magistrate Judge.
This Report and Recommendation is submitted to United States District Judge Michael M. Anello pursuant to 28 U.S.C § 636(b) and Civil Local Rules 72.1(d) and HC.2 of the United States District Court for the Southern District of California. On March 1, 2022, Petitioner, Tommy Pedro Dones, a state prisoner proceeding pro se commenced these habeas corpus proceedings pursuant to 28 U.S.C. § 2254. ECF No. 1 (“Pet.”). Petitioner challenges the validity of his state court conviction for committing a lewd and lascivious act upon a child with enhancements. See Pet. Respondent answered on June 1, 2022. ECF No. 5-1 (“Ans.”). Petitioner's Traverse was filed on August 29, 2022. ECF No. 9 (“Trav.”).
This Court has considered the Petition, Answer, Traverse, and all supporting documents filed by the parties. For the reasons set forth below, this Court RECOMMENDS that Petitioner's Petition for Writ of Habeas Corpus be DENIED.
FACTUAL BACKGROUND
The following facts are taken from the California Court of Appeal's October 5, 2021 opinion. Lodgment 6. This Court presumes the state court's factual determinations to be correct, absent clear and convincing evidence to the contrary. 28 U.S.C. § 2254(e)(1);
Miller-El v. Cockrell, 537 U.S. 322, 340 (2003); see also Parke v. Raley, 506 U.S. 20, 35 (1992) (holding findings of historical fact, including inferences properly drawn from such facts are entitled to statutory presumption of correctness).
In February 2019, a criminal investigation was initiated after Tommy Dones's infant daughter was diagnosed with gonorrhea. Dones was in contact with his daughter in the days before she was diagnosed, and he also tested positive for gonorrhea. Dones admitted during an interview with the investigating officer that his penis unintentionally touched his daughter while he was in the shower with her. Dones's aunt also provided a statement during the investigation claiming Dones had a history of sexually abusing his family members
The district attorney's office filed charges against Dones and a preliminary hearing was held, during which the prosecution presented testimony from the pediatrician who examined Dones's daughter and determined she contracted gonorrhea through sexual contact. On January 21, 2020, Dones pleaded guilty to Penal Code section 288, subdivision (a) lewd act on a child with enhancements for Penal Code section 12022.7, subdivision (d), great bodily injury on a child under 5 and Penal Code section 1203.066, subdivision (a)(8), substantial sexual conduct on a child under 14. The terms of the plea bargain included a stipulated sentence of 10 years in prison and the dismissal of the count for Penal Code section 288.7, subdivision (a), which carried a sentence of 25-years-to-life. Dones was sentenced on February 21, 2020, to the stipulated term of 10 years in prison. Dones did not appeal the judgment of conviction.
Lodgment 6 at 1-2.
PROCEDURAL BACKGROUND
On June 10, 2021, Petitioner filed a Petition for Writ of Habeas Corpus in the superior court asserting three claims for relief. Lodgment 1. Specifically, Petitioner alleged that (1) he was denied the effective assistance of counsel, (2) he was innocent, and (3) his rights were violated due to prosecutorial misconduct when the prosecution failed to correct materially false testimony and withheld exculpatory evidence. Id. The court denied relief on July 29, 2021 finding that “Petitioner [] failed to make a prima facie showing of specific facts which would entitle him to habeas corpus relief under existing law.” Id.
On August 24, 2021, Petitioner file a “Traverse Order for Denying Petition for Writ of
Habeas Corpus” in superior court. Lodgment 3. On August 25, 2021, the Court denied the second petition as successive and again noted that “Petitioner [] failed to make a prima facie showing of specific facts which would entitle him to habeas corpus relief under existing law.” Lodgment 4.
On September 1, 2021, Petitioner's Petition for Writ of Habeas Corpus was electronically filed in the California Court of Appeal. Lodgment 5. The petition raised the same three claims as his previous petitions, that (1) he was denied the effective assistance of counsel, (2) he was innocent, and (3) his rights were violated due to prosecutorial misconduct when the prosecution failed to correct materially false testimony and withheld exculpatory evidence. Id. On October 5, 2021, the court denied the petition finding that it was procedurally barred, untimely, and lacking on the merits as Petitioner did not provide any evidence of ineffective assistance of counsel and did not provide any new evidence establishing his innocence. Lodgment 6.
On October 14, 2021, Petitioner filed a Petition for Review in the California Supreme Court with the same three claims from his previous petitions. Lodgment 7. On December 1, 2021, the California Supreme Court summarily denied Petitioner's petition for review. Lodgment 8.
STANDARD OF REVIEW
Title 28 of the United States Code, section 2254(a), sets forth the following scope of review for federal habeas corpus claims:
The Supreme Court, a Justice thereof, a circuit judge, or a district court shall entertain an application for a writ of habeas corpus on 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.
The Petition was filed after enactment of the Anti-terrorism and Effective Death Penalty Act of 1996 C'AEDPA"), Pub.L. No. 104-132, 110 Stat. 1214. Under 28 U.S.C § 2254(d), as amended by AEDPA:
(d) 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.
28 U.S.C. § 2254(d). In making this determination, a court may consider a lower court's analysis. Ylst v. Nunnemaker, 501 U.S. 797, 803-04 (1991) (authorizing a reviewing court to look through to the last reasoned state court decision). Summary denials are presumed to constitute adjudications on the merits unless “there is reason to think some other explanation for the state court's decision is more likely.” Harrington v. Richter, 562 U.S. 86, 99-100 (2011).
A state court's decision is “contrary to” clearly established federal law if the state court: (1) “applies a rule that contradicts the governing law set forth in [Supreme Court] cases”; or (2) “confronts a set of facts that are materially indistinguishable from a decision of [the Supreme] Court and nevertheless arrives at a result different from [Supreme Court] precedent.” Williams v. Taylor, 529 U.S. 362, 405-06 (2000).
A state court's decision is an “unreasonable application” of clearly established federal law where 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.'” Lockyer v. Andrade, 538 U.S. 63, 75 (2003) (quoting Williams, 529 U.S. at 413). “[A] federal habeas court may not issue [a] writ simply because that court concludes in its independent judgment that the relevant state-court decision applied clearly established federal law erroneously or incorrectly. Rather, that application must be objectively unreasonable.” Id. at 75-76 (citations and internal quotation marks omitted). Clearly established federal law “refers to the holdings, as opposed to the dicta, of [the Supreme] Court's decisions as of the time of the relevant statecourt decision.” Williams, 529 U.S. at 412.
If the state court provided no explanation of its reasoning, “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 [the Supreme Court].” Harrington, 562 U.S. at 102. In other words, a federal court may not grant habeas relief if any fairminded jurist could find the state court's ruling consistent with relevant Supreme Court precedent.
Finally, habeas relief also is available if the state court's adjudication of a claim “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)(2); Wood v. Allen, 558 U.S. 290, 293 (2010). A state court's decision will not be overturned on factual grounds unless this Court finds that the state court's factual determinations were objectively unreasonable in light of the evidence presented in state court. See Miller-El, 537 U.S. at 340; see also Rice v. Collins, 546 U.S. 333, 341-42 (2006) (the fact that “[Reasonable minds reviewing the record might disagree” does not render a decision objectively unreasonable). This Court will presume that the state court's factual findings are correct, and Petitioner may overcome that presumption only by clear and convincing evidence. See 28 U.S.C. § 2254(e)(1); Schriro v....
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