Forbs v. Davey

• Decision Date: 03 May 2016
• Docket Number: Case No. 1:14-cv-00678 MJS (HC)
• Parties: DEROLLY FORBS Petitioner, v. DAVE DAVEY, Warden, Respondent.
• Court: U.S. District Court — Eastern District of California

DEROLLY FORBS Petitioner, v. DAVE DAVEY, Warden, Respondent.

Case No. 1:14-cv-00678 MJS (HC)

UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF CALIFORNIA

May 3, 2016

ORDER DENYING PETITION FOR WRIT OF HABEAS CORPUS 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. Respondent, Dave Davey, Acting Warden of California State Prison Corcoran is hereby substituted as the proper named respondent pursuant to Rule 25(d) of the Federal Rules of Civil Procedure. Respondent is represented by Kevin L. Quade of the office of the California Attorney General. Both parties have consented to Magistrate Judge jurisdiction under 28 U.S.C. § 636(c). (ECF Nos. 7-8.)

I. PROCEDURAL BACKGROUND

Petitioner is currently incarcerated pursuant to a judgment of the Superior Court of California, County of Kern, following a guilty verdict by a jury on October 25, 2010 of forcible rape, possession of a firearm by a felon, misdemeanor assault, and various enhancements. (Clerk's Tr. at 560-63.) On November 23, 2010, the trial court sentenced Petitioner to an indeterminate term of sixty-one (61) years to life in state prison. Id.

Petitioner filed a direct appeal with the California Court of Appeal, Fifth Appellate District. (Lodged Doc. 1.) On January 24, 2013, the court remanded the matter for the trial court to amend the abstract of judgment to correct the numbering of two counts, but otherwise affirmed the judgment. (Lodged Doc. 4.) Petitioner filed a petition for review with the California Supreme Court on March 5, 2013. (Lodged Doc. 5.) The Supreme Court summarily denied the petition on April 10, 2013. (Lodged Doc. 6.)

Petitioner sought collateral review in state court by filing a petition for writ of habeas corpus with the Kern County Superior Court on July 17, 2013. (Lodged Doc. 7.) The petition was denied in a reasoned decision on October 25, 2013. (Lodged Doc. 8.) Petitioner then filed a petition for writ of habeas corpus with the California Court of Appeal, Fifth Appellate District. (Lodged Doc. 9.) The court summarily denied the petition on December 19, 2013. (Lodged Doc. 10.) Petitioner filed a petition for writ of habeas corpus with the California Supreme Court on January 16, 2014. (Lodged Doc. 11.) The court summarily denied the petition on March 26, 2014. (Lodged Doc. 12.)

Petitioner filed the instant federal petition on May 8, 2014. (Pet., ECF No. 1.) Petitioner presents two claims for relief: 1) that Petitioner's rights to be free from double jeopardy under the Fifth and Fourteenth Amendments were violated by re-trying Petitioner after his first trial resulted in a mistrial; and 2) that his due process rights were violated by enhancements to his sentence based on his prior convictions. (Pet.)

Respondent filed an answer to the petition on July 22, 2014. (Answer, ECF No. 11.) Petitioner did not file a traverse. Accordingly, the matter stands fully briefed and ready for adjudication.

///

///

II. STATEMENT OF THE FACTS¹

Appellant Derolly Forbs was charged with forcible rape (Pen. Code,[fn1] § 261, subd. (a)(2); count 1), forcible oral copulation (§ 288a, subd. (c)(2); count 2), possession of a firearm by a felon (§ 12021, subd. (a)(1); count 3), and assault with a deadly weapon (§ 245, subd. (a)(1); count 4). Appellant's first trial ended with the jury acquitting him on the oral copulation count. However, the jury was unable to reach a verdict and the trial court declared a mistrial as to the remaining counts.

FN1: Further statutory references are to the Penal Code unless otherwise specified.

On retrial, appellant was convicted of forcible rape (count 1), possession of a firearm by a felon (count 2), and misdemeanor assault (§ 240), the lesser included offense of assault with a deadly weapon (count 3). The jury also found true that appellant had a prior conviction of forcible rape, and the trial court found true enhancement allegations based on the prior conviction. The court sentenced appellant to prison for an aggregate term of 61 years to life.

People v. Forbs, 2013 Cal. App. Unpub. LEXIS 541, 1-2 (Jan. 24, 2013).

III. GOVERNING LAW

A. Jurisdiction

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 fn.7 (2000). Petitioner asserts that he suffered violations of his rights as guaranteed by the U.S. Constitution. In addition, the conviction challenged arises out of the Kern County Superior Court, which is located within the jurisdiction of this court. 28 U.S.C. § 2241(d); 2254(a). Accordingly, the Court has jurisdiction over the action.

B. Legal Standard of Review

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, 326 (1997); Jeffries v. Wood,114 F.3d 1484, 1499 (9th Cir. 1997). The instant petition was filed after the enactment of the AEDPA; thus, it is governed by its provisions.

Under AEDPA, an application for a writ of habeas corpus by a person in custody under a judgment of a state court may be granted only for violations of the Constitution or laws of the United States. 28 U.S.C. § 2254(a); Williams v. Taylor, 529 U.S. at 375 n. 7 (2000). Federal habeas corpus relief is available for any claim decided on the merits in state court proceedings if 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).

1. Contrary to or an Unreasonable Application of Federal Law

A state court decision is "contrary to" federal law if it "applies a rule that contradicts governing law set forth in [Supreme Court] cases" or "confronts a set of facts that are materially indistinguishable from" a Supreme Court case, yet reaches a different result." Brown v. Payton, 544 U.S. 133, 141 (2005) citing Williams, 529 U.S. at 405-06. "AEDPA does not require state and federal courts to wait for some nearly identical factual pattern before a legal rule must be applied. . . . The statue recognizes . . . that even a general standard may be applied in an unreasonable manner" Panetti v. Quarterman, 551 U.S. 930, 953 (2007) (citations and quotation marks omitted). The "clearly established Federal law" requirement "does not demand more than a 'principle' or 'general standard.'" Musladin v. Lamarque, 555 F.3d 830, 839 (2009). For a state decision to be an unreasonable application of clearly established federal law under § 2254(d)(1), the Supreme Court's prior decisions must provide a governing legal principle (or principles) to the issue before the state court. Lockyer v. Andrade, 538 U.S. 63, 70-71 (2003). A state court decision will involve an "unreasonable application of" federal law only if it is "objectively unreasonable." Id. at 75-76, quoting Williams, 529 U.S. at409-10; Woodford v. Visciotti, 537 U.S. 19, 24-25 (2002). In Harrington v. Richter, the Court further stresses that "an unreasonable application of federal law is different from an incorrect application of federal law." 131 S. Ct. 770, 785 (2011), (citing Williams, 529 U.S. at 410) (emphasis in original). "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." Id. at 786 (citing Yarborough v. Alvarado, 541 U.S. 653, 664 (2004)). Further, "[t]he more general the rule, the more leeway courts have in reading outcomes in case-by-case determinations." Id.; Renico v. Lett, 130 S. Ct. 1855, 1864 (2010). "It is not an unreasonable application of clearly established Federal law for a state court to decline to apply a specific legal rule that has not been squarely established by this Court." Knowles v. Mirzayance, 129 S. Ct. 1411, 1419 (2009), quoted by Richter, 131 S. Ct. at 786.

2. Review of State Decisions

"Where there has been one reasoned state judgment rejecting a federal claim, later unexplained orders upholding that judgment or rejecting the claim rest on the same grounds." See Ylst v. Nunnemaker, 501 U.S. 797, 803 (1991). This is referred to as the "look through" presumption. Id. at 804; Plascencia v. Alameida, 467 F.3d 1190, 1198 (9th Cir. 2006). Determining whether a state court's decision resulted from an unreasonable legal or factual conclusion, "does not require that there be an opinion from the state court explaining the state court's reasoning." Richter, 131 S. Ct. at 784-85. "Where a state court's decision is unaccompanied by an explanation, the habeas petitioner's burden still must be met by showing there was no reasonable basis for the state court to deny relief." Id. ("This Court now holds and reconfirms that § 2254(d) does not require a state court to give reasons before its decision can be deemed to have been 'adjudicated on the merits.'").

Richter instructs that whether the state court decision is reasoned and explained, or merely a summary denial, the approach to evaluating unreasonableness under § 2254(d) is the same: "Under § 2254(d), a habeas court must determine what argumentsor theories supported or, as here, could have supported, the state court's decision; 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. Thus, "even a strong case for relief...