Green v. Grounds

• Decision Date: 26 October 2011
• Docket Number: NO. CV 11-2722-JST(E),CV 11-2722-JST(E)
• Court: U.S. District Court — Central District of California
• Parties: JARED GREEN, Petitioner, v. RANDY GROUNDS, Respondent

JARED GREEN, Petitioner,

v.RANDY GROUNDS, Respondent

NO. CV 11-2722-JST(E)

UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA

Dated: October 26, 2011

ORDER ADOPTING FINDINGS,

CONCLUSIONS AND RECOMMENDATIONS OF

UNITED STATES MAGISTRATE JUDGE

Pursuant to 28 U.S.C. section 636, the Court has reviewed the Petition, all of the records herein and the attached Report and Recommendation of United States Magistrate Judge. The Court approves and adopts the Magistrate Judge's Report and Recommendation.

IT IS ORDERED that Judgment be entered denying and dismissing the Petition with prejudice.

IT IS FURTHER ORDERED that the Clerk serve copies of this Order, the Magistrate Judge's Report and Recommendation and the Judgment herein on Petitioner, Petitioner's counsel, and counsel for Respondent.

LET JUDGMENT BE ENTERED ACCORDINGLY.

JOSEPHINE STATON TUCKER

UNITED STATES DISTRICT JUDGE

JARED GREEN, Petitioner,

v.

RANDY GROUNDS, Respondent.

NO. CV 11-2722-JST(E)

REPORT AND RECOMMENDATION OF

UNITED STATES MAGISTRATE JUDGE

This Report and Recommendation is submitted to the Honorable Josephine Staton Tucker, United States District Judge, pursuant to 28 U.S.C. section 636 and General Order 05-07 of the United States District Court for the Central District of California.

PROCEEDINGS

Petitioner filed a "Petition for Writ of Habeas Corpus By a Person in State Custody" on March 31, 2011, accompanied by a "Supplement to Petition for Writ of Habeas Corpus, etc." ("Pet. Supp."). Respondent filed an Answer on May 26, 2011. Petitioner filed a Reply on July 29, 2011.

BACKGROUND

The State charged Petitioner and his co-defendant, Bobby Lee Todd, with assault by means likely to produce great bodily injury upon Yoon Chae Kim in violation of California Penal Code section 245(a)(1) (Clerk's Transcript ["C.T."] 44-46). The State also charged Todd with misdemeanor vandalism (C.T. 44-46). Prior to trial, Todd pled guilty pursuant to a plea agreement (see Reporter's Transcript ["R.T."] E-13-15, 391, 474).

A jury found Petitioner guilty on the assault charge (R.T. 269-70; C.T. 105). The court found true the allegation that Petitioner had suffered a prior felony conviction qualifying as a "strike" within the meaning of California's Three Strikes Law, California Penal Code sections 667(b) - (i) and 1170.12(a) - (d) (R.T. 550; C.T. 311).¹ The court imposed a low term sentence of two years, doubled pursuant to the "one strike" provisions of the Three Strikes Law,² for a total term of four years (R.T. 676; C.T. 387-88).

The California Court of Appeal affirmed the judgment (Respondent's Lodgment 4; see People v. Green, 2010 WL 2220062 (Cal.App. June 4, 2010)). The California Supreme Court denied Petitioner's petition for review summarily (Respondent's Lodgment 8).

SUMMARY OF TRIAL EVIDENCE

The following summary is taken from the opinion of the California Court of Appeal in People v. Green, 2010 WL 2220062 (Cal. App. June 4, 2010). See Slovik v. Yates, 556 F.3d 747, 749 n.1 (9th Cir. 2009) (taking factual summary from state appellate decision).

Kim [the victim] worked at a 7-Eleven store on North Cahuenga Boulevard in Hollywood. On April 28, 2008, at 2:15 p.m., he was the cashier. A customer, Bobby Todd, requested a cup of ice. When Kim told him it cost 50 cents, Todd said he only had a quarter, which he threw on the counter. Kim replied that he could go to another store. Todd grabbed the coin, swore at Kim, and left the store slamming the front door on his way out and walked across the street. Kim did not realize Todd had broken the glass door, but discovered the damage shortly afterwards.

Kim was busy at the register and did not call the police, but he saw Todd across the street. Approximately 3 0 minutes later, when the store was less busy, Kim went across the street to confront Todd, leaving employee Braulio Rubio in charge. Kim told Todd that he had broken the window. Todd denied it. As they spoke, Kim noticed that defendant was sitting down and playing guitar on an abandoned couch onthe sidewalk, just behind Todd. Kim insisted that Todd had broken the window. When Kim said he intended to call the police, defendant stood up and punched Kim in the face. Todd punched him several times in the head and face. Kim tried to block the punches, but never fought back. When Kim tried to run away, Todd pushed him to the ground. While Kim was facing the ground, Todd choked him from behind and bit his right ear. Kim felt someone kick him on his side.

Kim managed to escape and received help from a passing motorist, who drove him back to the 7-Eleven. Kim entered the store and called the police. Defendant was across the street on the couch, playing the guitar. Kim had received injuries to his face and pain in his side, along with a severe headache and bruises on his hands and knees.

Alphy Hoffman was at the corner of Yucca and Cahuenga at the time of the incident. When Hoffman first noticed the disturbance, he saw defendant and another male hitting and kicking Kim, who was on the ground. Defendant kicked Kim several times. The incident lasted approximately 10 minutes. Hoffman reported the incident to the 911 operator as it happened. At one point, when a bus pulled up, Hoffman lost sight of defendant. On cross-examination, Hoffman testified that Cahuenga Boulevard was typically busy in terms of traffic at that hour. He viewed the incident from across Cahuenga; his view was slightly obstructed by passing vehicles.

Officer Othar Richey of the Los Angeles Police Department responded to the scene. He saw the abrasions to Kim's face above the left eye, as well as those to his hand and knee. He also saw the broken door or window at the 7-Eleven. Neither Todd nor defendant was injured.

Defense

Rubio was working at the 7-Eleven at the time of the incident. He heard the door slam and saw the glass had been broken. Some five minutes later, Kim went outside to confront the person who broke it. Rubio did not see the altercation. Investigator Dean Deruise interviewed Rubio, who told him that when Rubio wanted to call the 7-Eleven corporate office to report the vandalism, Kim told Rubio to wait and give Kim "a couple of minutes."

Hyun Joe was one of the owners of the 7-Eleven. Kim did not tell him who broke the window, but it had been replaced. Kim did not speak to him about the incident.

Officer Juan Corona testified that defendant and Todd offered no resistance to arrest. They seemed angry, but were not argumentative. Kim told the officer that Todd had broken the store window.

(Respondent's Lodgment 4, pp. 2-4; see People v. Green, 2010 WL 2220062, at *1-2).

PETITIONER'S CONTENTIONS

Petitioner contends:

1. The trial court's asserted failure to obtain a waiver of Petitioner's right to counsel prior to sentencing allegedly violated the Sixth Amendment;

2. The trial court allegedly violated due process by denying Petitioner's request for ancillary funds to hire an eyewitness expert; and

3. The trial court's denial of Petitioner's motion to sever allegedly violated Petitioner's constitutional rights.

STANDARD OF REVIEW

Under the "Antiterrorism and Effective Death Penalty Act of 1996" ("AEDPA"), a federal court may not grant an application for writ of habeas corpus on behalf of a person in state custody 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); Woodford v. Visciotti, 537 U.S. 19, 24-26 (2002); Early v.Packer, 537 U.S. 3, 8 (2002); Williams v. Taylor, 529 U.S. 362, 405-09 (2000).

"Clearly established Federal law" refers to the governing legal principle or principles set forth by the Supreme Court at the time the state court renders its decision. Lockyer v. Andrade, 538 U.S. 63 (2003). A state court's decision is "contrary to" clearly established Federal law if: (1) it applies a rule that contradicts governing Supreme Court law; or (2) it "confronts a set of facts. . . materially indistinguishable" from a decision of the Supreme Court but reaches a different result. See Early v. Packer, 53 7 U.S. at 8 (citation omitted); Williams v. Taylor, 529 U.S. at 405-06.

Under the "unreasonable application prong" of section 2254(d)(1), a federal court may grant habeas relief "based on the application of a governing legal principle to a set of facts different from those of the case in which the principle was announced." Lockyer v. Andrade, 538 U.S. at 76 (citation omitted); see also Woodford v. Visciotti, 537 U.S. at 24-26 (state court decision "involves an unreasonable application" of clearly established federal law if it identifies the correct governing Supreme Court law but unreasonably applies the law to the facts). A state court's decision "involves an unreasonable application of [Supreme Court] precedent if the state court either unreasonably extends a legal principle from [Supreme Court] precedent to a new context where it should not apply, or unreasonably refuses to extend that principle to a new context where it should apply." Williams v. Taylor, 529 U.S. at 407 (citation omitted).

"In order for a federal court to find a state court's application of [Supreme Court] precedent 'unreasonable,' the state court's decision must have been more than incorrect or erroneous." Wiggins v. Smith, 539 U.S. 510, 520 (2003) (citation omitted). "The state court's application must have been 'objectively unreasonable.'" Id. at 520-21 (citation omitted); see also Waddington v. Sarausad, 555 U.S. 179, 129 S. Ct. 823, 831 (2009); Davis v. Woodford, 384 F.3d 628, 637-38 (9th Cir. 2004), cert. dism'd, 545 U.S. 1165 (2005). "Under § 2254(d), a habeas court must determine what...