Hicks v. Burton

• Decision Date: 09 August 2021
• Docket Number: 2:18-cv-2237 JAM DB P
• Parties: CLIFTON ROBERT HICKS Petitioner, v. ROBERT BURTON, Respondent.
• Court: U.S. District Court — Eastern District of California

CLIFTON ROBERT HICKS Petitioner, v. ROBERT BURTON, Respondent.

No. 2:18-cv-2237 JAM DB P

United States District Court, E.D. California

August 9, 2021

FINDINGS AND RECOMMENDATIONS

DEBORAH BARNES UNITED STATES MAGISTRATE JUDGE

Petitioner a state prisoner, proceeds pro se and in forma pauperis with a petition for a writ of habeas corpus under 28 U.S.C. § 2254. Petitioner challenges a judgment of convictions entered on March 10, 2017 in the Yolo County Superior Court. Petitioner stands convicted of second degree robbery, evading a police officer, attempted kidnapping, false imprisonment and infliction of corporal injury. (ECF No. 17-1.) Petitioner claims: (1) breach of plea agreement by imposing an illegal strike; (2) his sentence was illegally enhanced by his prior convictions; (3) actual innocence of corporal injury offense and (4) actual innocence of attempted kidnapping offense. For the reasons set forth below, this court recommends denying the petition.

BACKGROUND

I. Facts Established at Trial

The California Court of Appeal for the Third Appellate District provided the following summary of the facts from the preliminary hearing:^[1]

No. 16-0209

On January 11, 2016, while driving together, defendant and his fiancé began arguing after the fiancé disclosed that she had suffered a miscarriage of defendant's child and she wanted to end their relationship. Defendant pulled into a parking lot and punched his fiancé in her head and face at least ten times. Defendant then kicked her at least three times, including physically kicking her out of the car. Once she was out of the car, defendant drove away. Defendant returned to the parking lot a short time later. He got out of the car and demanded his fiancé get back in the car. She refused and ran away.

Defendant ran after her, grabbed her from behind with both arms, and attempted to get her back into the car. A bystander intervened and used pepper spray against the defendant, then called the police. Police arrived soon after. Defendant was charged with attempted kidnapping (Pen. Code, §§ 664, 207, subd. (a)), a felony; false imprisonment (Pen. Code, §§ 236, 237, subd. (a)), a felony; and inflicting corporal injury on his fiancé (Pen. Code, § 273.5, subd. (a)), also a felony. Further, it was alleged defendant was previously convicted of a serious felony (Pen. Code, § 667 subds. (c), (e)(1)), and had served two prior prison terms (Pen. Code, § 667.5, subd. (b)). Defendant entered a plea of no contest to all counts and admitted all enhancements. The court sentenced defendant to three years and eight months in state prison.

No. 16-1068

On February 22, 2016, defendant entered Umpqua Bank in Woodland. He approached a teller window and handed the bank teller a note stating, “I have a gun. All the money now.” Although the bank teller did not see a gun, she gave defendant $2, 869 and triggered a silent alarm. Defendant then walked out of the bank, across a parking lot, entered a car, and drove away. Defendant's fiancé was waiting in the car. Around the time defendant left the bank, a dispatch describing the suspect in a recent bank robbery and the suspect's vehicle was broadcast to Woodland police. A police officer then saw defendant's vehicle, which matched the vehicle description of the bank robber, and pulled defendant's vehicle over. After the officer asked defendant for identification, defendant sped away. During the three-mile pursuit, the police officer reached speeds up to 125 miles per hour, before defendant pulled over at a rest stop. At the rest stop, officers found $1, 570 inside defendant's fiancé's purse. Officers took the defendant and his fiancé into custody.

Defendant told the investigating officers that due to short-term memory loss from mental disorders, he did not remember going into a bank that day. Defendant was charged with second degree robbery (Pen. Code, §§ 211, 212.5, subd. (c)), a felony, and evading a peace officer with reckless driving (Veh. Code, § 2800.2, subd. (a)), a felony. Further, it was alleged defendant was previously convicted of a serious felony (Pen. Code, § 667 subds. (a)(1), (c) & (e)(1)), defendant had two prior prison terms (Pen. Code, § 667.5, subd. (b)), and defendant committed the crime while out on bail for a pending felony offense (Pen. Code, § 12022.1, subd. (b)). Defendant entered a plea of no contest to all counts and admitted all enhancements. The court sentenced defendant to 14 years and four months in state prison.

(ECF No. 17-2 at 2-3); People v. Hicks, No. C084262, 2018 WL 416055, at *1-2 (Cal.Ct.App. Jan. 16, 2018).

II. Procedural Background

A. Judgment

Petitioner was convicted of second- degree robbery, evading a police officer, attempted kidnapping, false imprisonment, and infliction of corporal injury. (ECF No. 17-1.) The trial court imposed an aggregate prison term of 18 years. (Id.)

B. State Appeal, State Habeas, and Federal Proceedings

Petitioner timely appealed his convictions, raising only one ground for relief-that the trial court erred in denying his motion to dismiss his prior strike (“claim 1”). (ECF No. 17-2 at 4.) The California appellate court affirmed the judgment on January 16, 2018. (Id.) Petitioner did not seek review in the California Supreme Court. Instead, he filed a state habeas petition in California Supreme Court on February 23, 2018, raising only claim 1. (ECF No. 17-3.) The California Supreme Court denied the petition on July 25, 2018. (ECF No. 17-4.) Petitioner did not file another state petition before pursuing federal habeas relief on August 16, 2018. (ECF No. 1.)

Petitioner submitted six superior court petitions, all of which the superior court summarily denied: (1) No. HCCR 2018-10, filed on March 7, 2018 and denied on May 22, 2018 (ECF Nos. 26-4, 26-5) (challenging court awarded restitution); (2) No. HCCR 2018-18, filed on April 9, 2018 and denied on June 14, 2018 (ECF Nos. 26-7, 26-8) (requesting trial transcripts from appellate attorney); (3) No. HCCR 2018-37, filed on September 4, 2018 and denied on November 6, 2018 (ECF Nos. 26-6, 26-9) (requesting relief according to Senate Bills 1279 and 1393); (4) No. HCCR 2019-03, filed on January 3, 2019 and denied on March 8, 2019 (ECF Nos. 26-10, 26-11) (arguing that robbery is not a crime of violence); (5) No. HCCR 2019-11, filed on February 11, 2019 and denied on June 10, 2019 (ECF Nos. 26-12, 26-13) (requesting remand for trial court to exercise its discretion in striking petitioner's five-year prior serious felony sentence enhancement); and (6) No. HCCR 2019-20, filed on May 6, 2019 and denied on July 17, 2019 (ECF Nos. 26-14, 26-15) (arguing illegal sentencing enhancement and ineffective assistance of counsel). Petitioner also filed two state court of appeal petitions, which were also denied. (ECF Nos. 26-16-26-19.)

On September 10, 2018, petitioner filed his first amended federal habeas corpus petition. (ECF No. 7.) Respondent filed a motion to dismiss the petition on the ground that it included unexhausted claims. (ECF No. 16.) Petitioner responded by filing a “motion to delete unexhausted claims” and a motion to stay federal court proceedings to pursue unexhausted claims in state court. (ECF Nos. 18, 19.) Respondent opposed the motion to stay. (ECF No. 21.)

Petitioner subsequently filed a second state habeas petition in the California Supreme Court on September 18, 2019 and an amended second habeas petition on November 7, 2019. (ECF Nos. 22-1, 23 at 46.) The second habeas petitions included all four claims petitioner now seeks to litigate in this court. The California Supreme Court denied the successive petition, and petitioner moved to have the stay lifted in federal court. (ECF No. 23 at 1, 3.)

On February 6, 2020, this court denied respondent's motion to dismiss without deciding whether petitioner properly exhausted all claims in his habeas petition. (ECF No. 24.) This court also denied as moot petitioner's motion to delete unexhausted claims and motion for a stay. (Id.)

Respondent filed an answer to petitioner's habeas petition on March 5, 2020. (ECF No. 25.) Petitioner filed a traverse. (ECF No. 29.) On June 20, 2020, petitioner filed a motion noting reasons why this court should grant habeas corpus relief. (ECF No. 30.). Because his petition was fully briefed and properly submitted before he filed that motion, this court determined that it would not consider any new arguments raised in the motion when ruling on his petition. (ECF No. 31.)

STANDARDS OF REVIEW APPLICABLE TO HABEAS CORPUS CLAIMS

A court can entertain an application for a writ of habeas corpus by a person in custody under a judgment of a state court on the ground that he is in custody in violation of the Constitution or laws or treaties of the United States. 28 U.S.C. § 2254(a). A federal writ is not available for an alleged error in the interpretation or application of state law. See Wilson v. Corcoran, 562 U.S. 1, 5 (2010); Estelle v McGuire, 502 U.S. 62, 67-68 (1991); Park v. California, 202 F.3d 1146, 1149 (9th Cir. 2000) (stating that “a violation of state law standing alone is not cognizable in federal court on habeas.”).

This court may not grant habeas corpus relief 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). For purposes of applying § 2254(d)(1), “clearly established federal law” consists of holdings of the United States Supreme Court at the time of the last reasoned state court decision. Greene v....