Jensen v. Hernandez, No. CIV S–09–0512 DAD P.

CourtUnited States District Courts. 9th Circuit. United States District Courts. 9th Circuit. Eastern District of California
Writing for the CourtDALE A. DROZD
Citation864 F.Supp.2d 869
PartiesKeith Hugh JENSEN, Petitioner, v. Robert J. HERNANDEZ, Respondent.
Docket NumberNo. CIV S–09–0512 DAD P.
Decision Date30 March 2012

864 F.Supp.2d 869

Keith Hugh JENSEN, Petitioner,
v.
Robert J. HERNANDEZ, Respondent.

No. CIV S–09–0512 DAD P.

United States District Court,
E.D. California.

March 30, 2012.


[864 F.Supp.2d 884]


Keith Hugh Jensen, Ione, CA, pro se.

Carlos Antonio Martinez, Attorney General's Office for the State of California Department of Justice, Sacramento, CA, for Respondent.


ORDER

DALE A. DROZD, United States Magistrate Judge.

Petitioner is a state prisoner proceeding pro se with a petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. The parties have consented to proceed before a United States Magistrate Judge pursuant to 28 U.S.C. § 636(c). Petitioner challenges a judgment of conviction entered against him on December 17, 2003 in the Sacramento County Superior Court on charges of spousal rape with force, false imprisonment, misdemeanor spousal battery, and making terrorist threats. Petitioner raises nineteen separate claims for federal habeas relief. Upon careful consideration of the record and the applicable law, and for the reasons set forth below, the undersigned will conditionally grant petitioner's application for a writ of habeas corpus on his claims of Faretta error and that his appellate counsel rendered ineffective assistance in failing to raise the Faretta error on appeal, and will deny the application in all other respects.

BACKGROUND
I. Factual Background

In its unpublished memorandum and opinion affirming petitioner's judgment of conviction on appeal 1, the California Court of Appeal for the Third Appellate District provided the following factual summary:

Defendant Keith Hugh Jensen was convicted by jury of spousal rape, false imprisonment, misdemeanor spousal battery, and terrorists threats. The jury also found true the allegation defendant served four prior prison terms. The trial court sentenced defendant to 15 years in state prison.

On appeal, defendant contends: (1) the trial court improperly refused his request for advisory counsel, (2) the trial court improperly admitted battered women's syndrome evidence, (3) admission, pursuant to Evidence Code section 1109, of defendant's prior infliction of domestic abuse violated his due process and equal protection rights, and (4) a jury instruction pursuant to CALJIC No. 2.50.01 violated his due process rights. We affirm.

FACTS

On May 4, 2002, in the early morning hours, defendant called his estranged wife, Terri, to get a ride, but she refused. Defendant called a second time and told Terri his young nephew was with him at a known drug house. Terri picked up a friend, Jill Johnson, to go with her and attempted to retrieve the nephew. When she arrived, defendant got into the car instead of the nephew and refused to get out. He demanded Terri give him a ride to his father's house. During the drive, defendant pulled Terri's hair and called her names. He threatened to kill those close to Terri to bring her “world to an end.”

Upon arrival at the father's house, defendant refused to get out of the car because Terri would not go with him. She decided to drive to a friend's house on Withington Avenue for help dealing with defendant. Her friends were not home, but others were in the house. Defendant exited the car on Terri's side and pulled her out of the car by her shirt sleeve. He warned her that it

[864 F.Supp.2d 885]

would be “the easy way or the hard way.”

Defendant pulled Terri into the house by the front of her shirt. Once inside, defendant again grabbed Terri by the shirt, pulled her towards the bedroom, and threatened, “the easy way or the hard way.” He said he wanted to talk to her. Terri entered the bedroom, fearing she would be beaten if she did not comply. Defendant kept Johnson from entering the bedroom. He closed and locked the door.

In the bedroom, defendant and Terri argued about their relationship, Terri's illness (she thought she had cancer), and her attitude. Nothing Terri said satisfied defendant, and he hit her twice on the head. She tried to protect her head with her hands, but this made him angry. He hit her again when she put her hands down. At one point, he threatened to “take [her] world down even though it mean[t] spending the rest of [his] life on death row,” which she understood as a threat to kill her or her son. At some other point, defendant bit Terri on her arm.

Johnson knocked on the door to check on Terri because she had heard Terri tell defendant to stop. Defendant opened the door, told Johnson to go away, and assured her that Terri was fine. Terri said she was “okay,” but Johnson could not see her. Later, Johnson asked again if everything was okay, and defendant responded that everything was fine, but the door remained closed.

Defendant ordered Terri to remove her clothes. She did not want to, but feared what he would do if she refused. She complied, removing all but her underwear. Defendant removed the underwear and had intercourse with her for approximately 30 minutes. She did not resist because she did not want him to strike her. Defendant commented she could not fulfill him, and she responded with a sarcastic remark. He attempted to hit her, and she shouted at him not to.

Johnson knocked on the door a third time, and defendant opened it. He asked Johnson about Terri's phone and purse. Johnson saw Terri was putting on her blouse, had a red and swollen face, and looked horrified. Terri managed to get out of the house and ran into the middle of the street shouting for Johnson to get into the car and start it. Defendant reached the car first, attempted to start it with an old key, and smashed in the windshield when his key failed to work. He walked away, carrying Terri's cell phone.

Terri and Johnson fled in the car to go call the police. They stopped at a bar, and Johnson dialed 911. Terri kept a lookout for defendant. The police arrived and interviewed Terri, but did not ask her for details of what happened in the room. In the meantime, defendant went to Terri's sister's house. He admitted hitting Terri, smashing the windshield of her car, and having a fight.

Terri did not report the rape until later when she was questioned by an investigator from the district attorney's office. Terri is very guarded about her personal life.

At trial, Terri testified to two prior incidents of sex and violence with defendant. The first occurred when defendant strapped her, naked, to the bed in a camper after she attempted to leave when he wanted to have sex. She escaped the bonds while defendant was outside the camper, but was unable to dress before he returned. She consented to sex with him because she did not want to be strapped down again. The second time defendant broke Terri's nose when she refused to have sex with him.

[864 F.Supp.2d 886]

Defendant testified he started calling Terri for a ride at 4:00 a.m. on May 4, 2002, and it was light out when she picked him up. He claimed he did not ask to go to the house on Withington Avenue and did not force Terri to enter the house. He testified they argued about Terri's cancer. He denied having intercourse with Terri and stated she was mistaken about having disrobed. Finally, defendant claimed his threatening statements had been taken out of context because he was referring to what would happen if Terri kept doing and selling drugs.

(Doc. No. 18–1 at 2–3.)

II. Procedural Background

On February 15, 2007, after the California Court of Appeal affirmed petitioner's judgment of conviction, petitioner filed a petition for writ of error coram nobis in the Sacramento County Superior Court. (Resp't's Lod. Doc. 3.) That petition was subsequently dismissed pursuant to petitioner's notice of rescission. ( Id.)

On February 16, 2007, petitioner filed a petition for writ of habeas corpus in the California Court of Appeal for the Third Appellate District. (Resp't's Lod. Doc. 4.) Therein, he claimed that his appellate counsel had rendered ineffective assistance in failing to return petitioner's trial record in a timely manner and in failing to raise meritorious issues on appeal. ( Id.) That petition was summarily denied by order dated February 22, 2007. ( Id.)

On March 28, 2007, petitioner filed another petition for writ of habeas corpus in the California Court of Appeal for the Third Appellate District. (Resp't's Lod. Doc. 5.) Therein, he claimed that: (1) his appellate counsel rendered ineffective assistance; (2) his rights pursuant to Faretta v. California, 422 U.S. 806, 821, 95 S.Ct. 2525, 45 L.Ed.2d 562 (1975) were violated when the prosecution charged him with additional enhancements after he waived his right to counsel; (3) the trial court violated his constitutional rights in denying his repeated requests for “advisory/co-counsel;” (4) the prosecution violated Brady v. Maryland, 373 U.S. 83, 87, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963) when it failed to disclose exculpatory material to the defense; (5) the prosecutor violated his right to due process by presenting knowingly false testimony at trial; (6) his sentence violated the ruling in Cunningham v. California, 549 U.S. 270, 127 S.Ct. 856, 166 L.Ed.2d 856 (2007); (7) his sentence violated state sentencing law; (8) the “superior court clerk and/or department of corrections” violated his Constitutional rights by “adding to [his] sentence;” (9) California Penal Code § 3000 is vague and unconstitutional; (10) California Penal Code § 3000.07 is unconstitutional; and (11) California Penal Code § 3004(b) is unconstitutional. ( Id.) The state appellate court denied relief in an order dated May 10, 2007 with the following reasoning:

The petition for writ of habeas corpus is denied for failure to state a prima facie case as to any claim other than the contention that the trial court imposed the upper term in violation of Blakely v. Washington (2004) [542 U.S. 296, 124 S.Ct. 2531] 159 L.Ed.2d 403 and Cunningham v. California (2007) [549 U.S. 270, 127 S.Ct. 856] 166 L.Ed.2d 856, and, as to the Blakely/Cunningham issue, the petition is denied for failure to...

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17 practice notes
  • Will v. Ryan, No. CV-15-00203-TUC-JAS (BGM)
    • United States
    • United States District Courts. 9th Circuit. United States District Courts. 9th Circuit. District of Arizona
    • 17 de abril de 2018
    ...830 (9th Cir. 1996). "A challenge to jury instructions does not generally state a federal constitutional claim." Jensen v. Hernandez, 864 F. Supp. 2d 869, 932 (E.D. Cal. 2012), clarified on denial of reconsideration, No. 2:09-CV-0512 DAD P, 2012 WL 2571272 (E.D. Cal. July 2, 2012), and aff'......
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    • United States District Courts. 9th Circuit. United States District Courts. 9th Circuit. Eastern District of California
    • 14 de agosto de 2015
    ...right clearly established by federal precedent or result in prejudice under the circumstances of this case. See Jensen v. Hernandez, 864 F.Supp.2d 869, 923-924 (E.D. Cal. 2012); Chavarria v. Hamlet, 2003 WL 1563992 (N.D. Cal. March 25, 2003) at *11. Accordingly, Petitioner is not entitled t......
  • Brown v. Robinson, 2:20-cv-0991 KJM DB P
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    • United States District Courts. 9th Circuit. United States District Courts. 9th Circuit. Eastern District of California
    • 21 de junho de 2021
    ...668, 687 (1984). The Strickland standard is applicable to claims of ineffective assistance of appellate counsel. Jensen v. Hernandez, 864 F.Supp.2d 869, 947 (E.D. Cal. 2012) (citing Smith v. Murray, 477 U.S. 527, 535-36 (1986) and Miller v. Keeney, 882 F.2d 1428, 1433 (9th Cir.1989)), clari......
  • Rose v. Foulk, No. 2:12-cv-03028-JKS
    • United States
    • United States District Courts. 9th Circuit. United States District Courts. 9th Circuit. Eastern District of California
    • 15 de setembro de 2014
    ...Brady to make the materials available for the appellant's inspection" (citation and internal brackets omitted); Jensen v. Hernandez, 864 F. Supp. 2d 869, 911 (E.D. Cal. 2012) (denying petitioner's Brady claim where he failed to demonstrate that the medical records allegedly withheld by the ......
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17 cases
  • Will v. Ryan, No. CV-15-00203-TUC-JAS (BGM)
    • United States
    • United States District Courts. 9th Circuit. United States District Courts. 9th Circuit. District of Arizona
    • 17 de abril de 2018
    ...830 (9th Cir. 1996). "A challenge to jury instructions does not generally state a federal constitutional claim." Jensen v. Hernandez, 864 F. Supp. 2d 869, 932 (E.D. Cal. 2012), clarified on denial of reconsideration, No. 2:09-CV-0512 DAD P, 2012 WL 2571272 (E.D. Cal. July 2, 2012), and aff'......
  • Kendall v. Tampkins, Case No.: 1:13-cv-00209-LJO-JLT
    • United States
    • United States District Courts. 9th Circuit. United States District Courts. 9th Circuit. Eastern District of California
    • 14 de agosto de 2015
    ...right clearly established by federal precedent or result in prejudice under the circumstances of this case. See Jensen v. Hernandez, 864 F.Supp.2d 869, 923-924 (E.D. Cal. 2012); Chavarria v. Hamlet, 2003 WL 1563992 (N.D. Cal. March 25, 2003) at *11. Accordingly, Petitioner is not entitled t......
  • Brown v. Robinson, 2:20-cv-0991 KJM DB P
    • United States
    • United States District Courts. 9th Circuit. United States District Courts. 9th Circuit. Eastern District of California
    • 21 de junho de 2021
    ...668, 687 (1984). The Strickland standard is applicable to claims of ineffective assistance of appellate counsel. Jensen v. Hernandez, 864 F.Supp.2d 869, 947 (E.D. Cal. 2012) (citing Smith v. Murray, 477 U.S. 527, 535-36 (1986) and Miller v. Keeney, 882 F.2d 1428, 1433 (9th Cir.1989)), clari......
  • Rose v. Foulk, No. 2:12-cv-03028-JKS
    • United States
    • United States District Courts. 9th Circuit. United States District Courts. 9th Circuit. Eastern District of California
    • 15 de setembro de 2014
    ...Brady to make the materials available for the appellant's inspection" (citation and internal brackets omitted); Jensen v. Hernandez, 864 F. Supp. 2d 869, 911 (E.D. Cal. 2012) (denying petitioner's Brady claim where he failed to demonstrate that the medical records allegedly withheld by the ......
  • Request a trial to view additional results

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