George v. Almager

Decision Date24 September 2009
Docket NumberCivil No. 07cv2215 J(POR).
Citation674 F.Supp.2d 1160
CourtU.S. District Court — Southern District of California
PartiesRichard Earl GEORGE, Petitioner, v. V.M. ALMAGER, Warden, et al., Respondent.

Richard Earl George, Imperial, CA, pro se.

U. S. Attorney CV, U. S. Attorneys Office Southern District Of California, San Diego, CA, for Respondent.





NAPOLEON A. JONES, JR., District Judge.

Before the Court is Magistrate Judge Louisa S. Porter's Report and Recommendation ("R & R") recommending that the Court deny the Writ of Habeas Corpus, filed pursuant to 28 U.S.C. § 2254, of Petitioner Richard Earl George. [Doc. No. 15.] This Court has considered the Petition, Respondent's Answer, Petitioner's Traverse, Petitioner's Objections to the R & R, and all the supporting documents the parties have submitted. Having considered the documents, this Court ADOPTS the R & R, DENIES the Petition, and DENIES Petitioner's request for the appointment of counsel for the reasons stated below.

Factual Background

Because the facts as found by the state appellate court are set out in detail in the R & R, the Court will only provide a brief summary here. (See R & R at 1179-83.)

Petitioner was Bertha Ledesma's boyfriend and pimp. Ledesma was afraid of Petitioner, and at one point wrote a letter stating that if she were found dead, to investigate Petitioner because he had tried to kill her by strangulation. Petitioner sold drugs and was also a driver for Amvets in El Cajon. On Saturday night, January 3, 2004, Petitioner drove Ledesma to one of her usual prostitution locations by the Adult Emporium on Main Street in Chula Vista.

At about 2:15 a.m., Petitioner agreed to give Fred Killpack oral sex. While Ledesma and Killpack were parked in his vehicle, Killpack saw Petitioner walking towards his car from the corner. Killpack started the car's engine and Ledesma began punching, scratching, and biting his face. Petitioner told Ledesma to throw the car keys out of the car, which she did. Petitioner reached into the car and choked Killpack into unconsciousness. Petitioner took Killpack's wallet, which Killpack had taken out during the struggle and offered to him. Petitioner and Ledesma left Killpack unconscious in his car.

When Petitioner and Ledesma were arrested on January 14, 2004, Petitioner had receipts in his car for gas station purchases made with Killpack's credit card, one of which was from a gas station near the Amvets where Petitioner worked. Records for the credit card indicated it had been used on the morning of January 4 at a gas station near the motel where Ledesma and Petitioner were staying.

On the same morning of the Killpack incident, Ledesma and Petitioner returned to an area on 32nd Street in San Diego, arriving about 5:00 am. There Ledesma saw Tom Duray. The two drove around the corner and Duray paid her $30. He reclined his seat, and while she was putting a condom on him, she stole his cell phone and put it in her pocket. Shortly after Ledesma began performing oral sex on Duray, Petitioner reached into the car, tried to grab Duray's throat, and told Ledesma to throw the car keys out the window, which she did. At one point, Ledesma heard a female voice coming from Duray's cell phone, yelling for her father and asking what was wrong. Eventually Petitioner got into the back seat of Duray's car and strangled him until he stopped fighting.

Petitioner took Duray's wallet and instructed Ledesma to remove the valuable contents. He asked her about the condition of the wallet, and she told him it looked brand new. Petitioner then transferred the contents of his wallet to Duray's and threw away his old wallet. Duray's son testified that his father had recently purchased a new wallet that looked similar to a wallet recovered from Petitioner during his arrest.

Duray died due to manual strangulation. From Duray's car, police recovered a used condom and collected smudges on the right rear window for DNA analysis. A statistical analysis of the DNA evidence recovered was later presented at trial.

Killpack was initially shown a photo lineup by police, where Ledesma's photograph was not included; Killpack did not identify any of the women in that lineup. Subsequently, Killpack was shown a lineup with Ledesma's photograph, where he identified Ledesma after two or three seconds. In another photo lineup provided by police, Killpack "instantaneously" identified Petitioner as his assailant. He was 100 percent positive in his identification. Killpack also identified Petitioner at trial.

Procedural History

On November 22, 2005, a jury found Petitioner guilty of first degree murder committed during the course of a robbery, two counts of robbery, and one count of assault by means of force likely to produce great bodily injury. On January 4, 2006, the trial court sentenced Petitioner to serve life without parole plus seven years.

Petitioner filed an appeal to the California Court of Appeal, Fourth Appellate District, Division One ("Appeal"), raising claims similar to those in his Petition. (Lodgment No. 8; Petition at 2.) On May 25, 2007, the California Court of Appeal affirmed the judgment. (Appeal at 2, 24.) On July 2, 2007, Petitioner filed a petition for review in the California Supreme Court on same issues raised in his Appeal. (Lodgment No. 9.) The California Supreme Court denied the petition on August 22, 2007. (Lodgment No. 10.)

On November 19, 2007, Petitioner filed a federal petition for writ of habeas corpus. [Doc. No. 1.] On March 26, 2008, Respondent filed an Answer. [Doc. No. 8.] Petitioner filed his Traverse on May 14, 2008. [Doc. No. 14]. On November 7, 2008, Judge Porter issued her R & R recommending the Petition be denied. [Doc. No. 15.] Petitioner filed timely Objections to the R & R on January 8, 2009. [Doc. No. 21.] Petitioner filed a Motion to Appoint Counsel on February 4, 2009, filed nunc pro tunc to January 30, 2009. [Doc. No. 23.]

Legal Standard
I. State Habeas Prisoner Standard

A federal court must grant habeas relief to a petitioner in state prison if the petitioner is in custody "in violation of the Constitution or other laws or treaties of the United States." 28 U.S.C. § 2254(a). A federal court's duty in examining a state prisoner's habeas petition is governed by 28 U.S.C. § 2254 as amended by the 1996 Antiterrorism and Effective Death Penalty Act ("AEDPA"). Pursuant to § 2254, a federal court may grant habeas corpus relief from a state-court judgment only if the adjudication was (1) "contrary to, or involved an unreasonable application of, clearly established Federal law as determined by the Supreme Court of the United States," or (2) "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).

The phrase "clearly established Federal law, as determined by the Supreme Court of the United States" refers to the holdings, as opposed to dicta, of the Supreme Court's decisions at the time of the relevant state-court decision. See Williams v. Taylor, 529 U.S. 362, 405, 120 S.Ct. 1495, 146 L.Ed.2d 389 (2000). Holdings by the Courts of Appeals and dicta in Supreme Court opinions are not governing law for purposes of habeas review. See Carey v. Musladin, 549 U.S. 70, 76-77, 127 S.Ct. 649, 166 L.Ed.2d 482 (2006); Lockyer v. Andrade, 538 U.S. 63, 71-72, 123 S.Ct. 1166, 155 L.Ed.2d 144 (2003). However, Ninth Circuit case law may be persuasive authority for purposes of determining whether a particular state-court decision is an "unreasonable application" of Supreme Court law. Duhaime v. Ducharme, 200 F.3d 597, 600 (2000). Such precedent may also help determine what law is "clearly established." Id.

A state-court decision is "contrary to clearly established federal law" if it (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 the opposite result. See Williams, 529 U.S. at 405, 120 S.Ct. 1495. The inquiry into whether a state court's interpretation of federal law is "contrary to" clearly established federal law is itself a question of federal law as to which federal courts owe no deference to the state courts. See Cordova v. Baca, 346 F.3d 924 (9th Cir.2003). Mixed questions of fact and law are reviewed under the "contrary to" and "unreasonable application" clauses in 28 U.S.C. § 2254(d)(1). Lambert v. Blodgett, 393 F.3d 943, 976 (9th Cir.2004). A state court's factual findings underlying its conclusions on mixed issues are accorded a presumption of correctness. Id.

A state court decision is an "unreasonable application of" Supreme Court precedent if the court correctly identifies the governing legal rule but applies it unreasonably to the facts of the case. Williams, 529 U.S. at 407-408, 120 S.Ct. 1495; Luna v. Cambra, 306 F.3d 954, 960 as amended 311 F.3d 928 (9th Cir.2002). This is a "highly deferential standard for evaluating state-court rulings," Lindh v. Murphy, 521 U.S. 320, 333 n. 7, 117 S.Ct. 2059, 138 L.Ed.2d 481 (1997), and "demands that state court decision be given the benefit of the doubt." Woodford v. Visciotti, 537 U.S. 19, 24, 123 S.Ct. 357, 154 L.Ed.2d 279 (2002) (per curiam). Under section 2254(d)(1)'s "unreasonable application" clause, a writ of habeas corpus may not issue simply because the reviewing district court concludes in its independent judgment that the relevant state court decision applied clearly established federal law "erroneously" or "incorrectly." Lockyer v. Andrade, 538 U.S. 63, 75, 123 S.Ct. 1166, 155 L.Ed.2d 144 (2003). Rather, that application also must be objectively unreasonable. Id. at 76, 123 S.Ct. 1166. Though this standard is...

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