Griffith v. Alfaro

• Decision Date: 19 January 2017
• Docket Number: Case No. CV-14-03251-JVS (KES)
• Court: U.S. District Court — Central District of California
• Parties: DAVON CAREY GRIFFITH, Petitioner, v. SANDRA ALFARO, Warden, Respondent.

DAVON CAREY GRIFFITH, Petitioner, v. SANDRA ALFARO, Warden, Respondent.

Case No. CV-14-03251-JVS (KES)

UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA

January 19, 2017

FINAL REPORT AND RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE

This Final Report and Recommendation is submitted to the Honorable James V. Selna, United States District Judge, pursuant to 28 U.S.C. § 636 and General Order 194 of the United States District Court for the Central District of California.

I.INTRODUCTION

On April 28, 2014, Petitioner filed his Petition for Writ of Habeas Corpus by a Person in State Custody pursuant to 28 U.S.C. § 2254 (the "Petition"). (Dkt. 1.) On March 23, 2015, with leave from this Court, Petitioner filed his First Amended Petition ("FAP") to add additional exhausted claims. (Dkt. 29.) Petitioner is a California state prisoner currently serving a sentence of eighteen years for first degree robbery, plus a consecutive two years and eight months for a previous conviction of possession of cocaine for sale.

Respondent filed an answer to the FAP on September 28, 2015. (Dkt. 41.) In response, Petitioner filed a traverse on January 22, 2016. (Dkt. 50.) For the reasons discussed below, the Court recommends that the Petition be DENIED.

II.BACKGROUND

On October 16, 2009, Davon Carey Griffith ("Petitioner") and David Haliburton robbed a drug dealer named George Lopez. (Lodged Document ("LD") 1; 1 Clerk's Transcript ("CT") 173.) Petitioner broke down the door to Lopez's home and demanded that Lopez give him money. (Id.) Lopez was struck with a gun during the robbery. (Id.) Petitioner then tied up Lopez with a zip tie and ransacked the house, taking a watch, jewelry, and personal checks, as well as $1,100 from Lopez's person. (Id.) When subsequently arrested by the police, Petitioner had Lopez's property in his possession. (Id.) Haliburton was caught at the scene with a semiautomatic handgun in his possession. (Id.)

Petitioner's preliminary hearing in the robbery case was held on November 2, 2009. (1 CT 3.) Lopez testified at the hearing and was cross-examined by defense counsel. (1 CT 5-33.) Petitioner was held to answer on the two charged offenses—Penal Code § 211 (Robbery) and Penal Code § 245(a)(1) (Assault With a Deadly Weapon).¹ (1 CT 47.) Petitioner was arraigned on the charges on November 16, 2009. (1 CT 50.) His bail was later lowered from $250,000 to $175,000, and Petitioner had been released from custody by his next court date on June 8, 2010. (1 CT 60, 62.)

On August 5, 2010, while out on bail in his robbery case, Petitioner was arrested for selling cocaine to an undercover police officer. (1 CT 174, 179.) Basedon this new offense, Petitioner pled guilty to violating Health and Safety Code § 11351.5 (Possession of Cocaine Base for Sale) on January 31, 2011, and further admitted he had been convicted of a prior strike offense.² (LD 8 at 62.) On April 15, 2011, Petitioner was sentenced to six years in state prison in his cocaine case.³ (Dkt. 58 at 13.)

Although Petitioner pled guilty in his cocaine case, he went to trial in his robbery case. Lopez exercised his Fifth Amendment right against self-incrimination at trial and did not testify. The court admitted Lopez's preliminary hearing testimony as evidence. On July 22, 2011, a jury convicted Petitioner of violating Penal Code § 211(Robbery) and § 459 (Residential Burglary). The jury also found that a principal in the offense was armed with a handgun during the robbery. (1 CT 133, 135.) Petitioner was acquitted of all other charges and enhancements. (1 CT 133-136.)

Petitioner was sentenced in his robbery case on September 26, 2011. (1 CT 232.) The People asked that Petitioner be sentenced to eighteen years in prison. (1 CT 172-73). Petitioner faced three, four, or six years in prison as a result of the robbery conviction, and the court chose the high term of six years based onaggravating factors.⁴ (1 CT 176-79.) Petitioner's prior strike conviction doubled the term chosen by the court. (1 CT 179.) Because the prior strike was also a serious felony, the court was required to add another five years to Petitioner's sentence. (Id.) One more year was added for the principal firearm allegation. (Id.)

Lastly, Petitioner's new conviction and sentence required that Petitioner be resentenced in his previous cocaine case. Although Petitioner's robbery and cocaine sentences would run consecutively, see Penal Code § 1170.12(a)(6), Petitioner would no longer serve the six years originally imposed in the cocaine case. Instead, the cocaine sentence became subordinate to the robbery sentence, and Petitioner could serve no more than one-third of the middle term prescribed for this felony. See Penal Code § 1170.1(a) ("The subordinate term for each consecutive offense shall consist of one-third of the middle term of imprisonment prescribed for each other felony conviction for which a consecutive term of imprisonment is imposed, and shall include one-third of the term imposed for any specific enhancements applicable to those subordinate offenses"). The middle term for a violation of Health and Safety Code § 11351.5 at that time was four years.⁵ The sentencing judge added one-third of the doubled middle term, adding two years and eight months to Petitioner's aggregate sentence. (4 RT 646.)

III.CLAIMS

Petitioner asserts thirteen grounds for relief:

Ground One: Petitioner was denied his Sixth and Fourteenth Amendment rights to confront witnesses when the trial court approved Lopez's blanket invocation of the Fifth Amendment privilege. (FAP at 7, 17, 21-23.)

Ground Two: Petitioner was denied his Sixth and Fourteenth Amendment rights to effectively cross-examine the victim at the preliminary hearing, because the victim was not assisted by a Spanish-language interpreter at that proceeding. (FAP at 7, 17, 24.)

Ground Three: Petitioner was denied his Sixth and Fourteenth Amendment rights to confront witnesses when the victim's preliminary hearing testimony was read to the jury, because the opportunity and motive to cross-examine the victim at the preliminary hearing was not the same as at trial. (FAP at 7-8, 17, 24-27.)

Ground Four: Petitioner was denied his Sixth and Fourteenth Amendment rights to confront witnesses when the trial court allowed into evidence testimonial hearsay statements of Petitioner's co-conspirator referenced in the victim's preliminary hearing testimony. (FAP at 8, 17, 28.)

Ground Five: Petitioner was denied his Sixth and Fourteenth Amendment rights to confront witnesses when the trial court allowed into evidence testimonial hearsay statements of the victim captured on wiretaps. (FAP at 8, 17, 29-31.)

Ground Six: Petitioner was denied his Sixth and Fourteenth Amendment rights to a fair trial when the trial court admitted the victim's inadmissible hearsay statements captured on wiretaps. (FAP at 9, 17, 31-35.)

Ground Seven: Petitioner was denied his Sixth and Fourteenth Amendment rights to a fair trial when the trial court failed to sua sponte instruct the jury on lesser included offenses. (FAP at 9, 17, 35-37.)

Ground Eight: Petitioner's due process rights were violated when theprosecution failed to prove the firearm allegation beyond a reasonable doubt. (FAP at 9, 17, 37-38.)

Ground Nine: Petitioner's Sixth and Fourteenth Amendment rights to a jury trial were violated because the firearm allegation was not found true by a jury. (FAP at 9-10, 17-18, 39.)

Ground Ten: Petitioner was denied his Fifth, Sixth, Eighth, and Fourteenth Amendment Rights when the government breached his plea agreement in Superior Court case number BA374493 ("the cocaine case"), and the trial court erred by resentencing him in that case. (FAP at 10, 18, 40-41.)

Ground Eleven: Petitioner was denied his Sixth and Fourteenth Amendment rights to the effective assistance of counsel when his trial counsel failed to object to each of the errors asserted in Grounds One through Ten. (FAP at 10, 28, 41-42.)

Ground Twelve: Petitioner was denied his Sixth and Fourteenth Amendment rights to the effective assistance of counsel when his appellate attorney failed to raise each of the errors asserted in Grounds One through Ten. (FAP at 10, 18, 42-43.)

Ground Thirteen: Petitioner was denied his Sixth and Fourteenth Amendment rights because the cumulative effect of the aforementioned errors prejudiced his entire trial and/or his direct appeal. (FAP at 11, 18, 44.)

IV.STANDARD OF REVIEW

Under the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"):

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 unreasonableapplication 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). The "clearly established Federal law" that controls federal habeas review of state court decisions consists of holdings (as opposed to dicta) of Supreme Court decisions "as of the time of the relevant state court decision." Williams v. Taylor, 529 U.S. 362, 412 (2000).

Although a particular state court decision may be both "contrary to" and "an unreasonable application of" controlling Supreme Court law, the two phrases have distinct meanings. Williams, 529 U.S. at 391, 413. A state court decision is "contrary to" clearly established federal law if the decision either applies a rule that contradicts the governing Supreme Court law, or reaches a result that differs from the result the Supreme Court reached on "materially indistinguishable" facts. Early v. Packer, 537 U.S. 3, 8 (2002) (per curiam); Williams, 529 U.S. at 405-06.

State court dec...