Johnson v. Swarthout, 1:12-CV-01178 AWI BAM HC

• Decision Date: 15 February 2013
• Docket Number: 1:12-CV-01178 AWI BAM HC
• Parties: GLEN M. JOHNSON, Petitioner, v. G. SWARTHOUT, Respondent.
• Court: U.S. District Court — Eastern District of California

GLEN M. JOHNSON, Petitioner,

v.G. SWARTHOUT, Respondent.

1:12-CV-01178 AWI BAM HC

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF CALIFORNIA

Dated: February 15, 2013

FINDINGS AND RECOMMENDATION

REGARDING PETITION FOR WRIT OF

HABEAS CORPUS

Petitioner is a state prisoner proceeding pro se with a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254.

PROCEDURAL BACKGROUND¹

Petitioner is currently in the custody of the California Department of Corrections and Rehabilitation pursuant to a judgment of the Superior Court of California, County of Kern, following his conviction by jury trial on March 27, 2008, of second degree murder (Cal. Penal Code § 187(a)), conspiracy to commit murder (Cal. Penal Code § 182(a)(1)), and accessory to murder (Cal. Penal Code § 32). Allegations that the principal had been armed with a firearm (Cal. Penal Code § 12022(a)(1)) and that Petitioner had previously served a prior prison term (Cal. Penal Code § 667.5(b)) were found true. On May 15, 2008, he was sentenced to serve an aggregate term of twenty-seven years to life in state prison.

Petitioner timely filed a notice of appeal in the California Court of Appeal, Fifth Appellate District ("Fifth DCA"). While this appeal was pending, Petitioner filed a petition for writ of habeas corpus also in the appellate court on February 20, 2009. On June 30, 2009, the appellate court issued an order to show cause returnable in the superior court. On July 7, 2009, Petitioner returned to the superior court with a petition for writ of habeas corpus. An evidentiary hearing was held on December 4, 2009, and on December 29, 2009, the court denied relief. On March 12, 2010, Petitioner filed a petition for writ of habeas corpus in the Fifth DCA. The court denied relief on July 1, 2011.

On June 17, 2011, the Fifth DCA affirmed Petitioner's judgment in a reasoned decision. Petitioner then filed a petition for review in the California Supreme Court. On September 21, 2011, the petition was summarily denied.

On July 10, 2012, Petitioner filed the instant federal habeas petition in this Court. After conducting a preliminary review of the petition, on August 2, 2012, the Court dismissed Grounds Two, Three, Four and Six from the petition. On September 4, 2012, the Court ordered Respondent to file a response to the petition on the following remaining claims: Ground 1) He alleges a witness for the prosecution provided false testimony to the jury which the prosecutor knew to be false, in violation of his constitutional rights; Ground 5) He claims the evidence was insufficient to support the jury's finding, because a witness's testimony was physically impossible or inherently unbelievable; Ground 7) He claims defense counsel rendered ineffective assistance by failing to demonstrate to the jury that a witness was unbelievable; and Ground 8) He alleges the prosecutor committed misconduct by failing to turn over Brady material to the defense. On January 10, 2013, Respondent filed an answer to the petition. On January 25, 2013, Petitioner filed a traverse.

STATEMENT OF FACTS²

The Fifth DCA summarized the facts of the case, as follows:

After an evening together at a dance club, Lamar Rufus and his cousin Curtis Rufus drove to a convenience store and parked their cars nearby.³ Lamar stayed outside while Curtis went inside to buy some water. After Curtis saw people outside "scurrying around as if they were leaving hastily," he and Lamar started back to their cars. In an alley along the way, Curtis saw Johnson and Lenix walking toward them. He knew Johnson, with whom he had played basketball a few times and with whom Lamar had attended school. Johnson looked as if "he had had a couple of drinks," so Curtis, on the way by, "patted him on the chest, hey man, wake up."

FN3. In the interests of brevity and clarity, later references to the cousins Rufus will be by first names only. References to other witnesses will be by last names.

Once Johnson and Lenix were behind Curtis and Lamar, Curtis heard a metallic object hit the ground. Lamar turned around and told him Lenix "dropped a .38." Curtis turned around and saw Lenix reach down and put something in his waistband. Curtis said, "Let's go." As soon as Curtis and Lamar got back to their cars, Deshonta Grayson was standing there telling them that some "East Side" people were "tripping." That made no sense to Curtis, since nobody he knew there was an "East Side" gang member. Again, he said, "Let's go." As he drove away, he saw Grayson open Lamar's car door. After he turned around a corner, he saw that Lamar's car was not behind him. He backed up and saw that Lamar was still talking to Grayson.

Suddenly Curtis saw "Lenix walk over and fire two, three shots" into Lamar's head. Lamar instantly fell in front of his car. Grayson and Lenix "hesitated for a split second" and started walking away. Curtis started driving toward them, intending to hit them with his car. Lenix began firing the gun in his direction. Grayson ran past his car. Another car pulled out of a connecting alley and stopped. As Lenix opened the passenger door, the car's dome light and Curtis's headlights illuminated the interior of the other car. Curtis saw Johnson at the wheel. Lenix got in, and Johnson drove away. In court, Curtis testified there was no doubt in his mind that Johnson was the driver of the other car.

(Resp't's Answer, Ex. A.)

DISCUSSION

I. Jurisdiction

Relief by way of a petition for writ of habeas corpus extends to a person in custody pursuant to the judgment of a state court if the custody is in violation of the Constitution or laws or treaties of the United States. 28 U.S.C. § 2254(a); 28 U.S.C. § 2241(c)(3); Williams v. Taylor, 529 U.S. 362, 375 (2000). Petitioner asserts that he suffered violations of his rights as guaranteed by the U.S. Constitution. The challenged conviction arises out of Kern County Superior Court, which is located within the jurisdiction of this Court. 28 U.S.C. § 2254(a); 28 U.S.C. § 2241(d).

On April 24, 1996, Congress enacted the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"), which applies to all petitions for writ of habeas corpus filed after itsenactment. Lindh v. Murphy, 521 U.S. 320 (1997); Jeffries v. Wood, 114 F.3d 1484, 1499 (9th Cir. 1997) (en banc). The instant petition was filed after the enactment of the AEDPA and is therefore governed by its provisions.

II. Standard of Review

Under the AEDPA, relitigation of any claim adjudicated on the merits in state court is barred unless a petitioner can show that the state court's adjudication of his 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); Harrington v. Richter, __ U.S. _, _, 131 S.Ct 770, 784, 178 L.Ed.2d 624 (2011); Lockyer v. Andrade, 538 U.S. 63, 70-71 (2003); Williams, 529 U.S. at 413.

As a threshold matter, this Court must "first decide what constitutes 'clearly established Federal law, as determined by the Supreme Court of the United States.'" Lockyer, 538 U.S. at 71 (quoting 28 U.S.C. § 2254(d)(1)). In ascertaining what is "clearly established Federal law," this Court must look to the "holdings, as opposed to the dicta, of [the Supreme Court's] decisions as of the time of the relevant state-court decision." Williams, 592 U.S. at 412. "In other words, 'clearly established Federal law' under § 2254(d)(1) is the governing legal principle or principles set forth by the Supreme Court at the time the state court renders its decision." Id. In addition, the Supreme Court decision must "'squarely address [] the issue in th[e] case' or establish a legal principle that 'clearly extend[s]' to a new context to the extent required by the Supreme Court in . . . recent decisions"; otherwise, there is no clearly established Federal law for purposes of review under AEDPA. Moses v. Payne, 555 F.3d 742, 754 (9th Cir.2009) (quoting Wright v. Van Patten, 552 U.S. 120, 125 (2008)); Panetti v. Quarterman, 551 U.S. 930 (2007); Carey v. Musladin, 549 U.S. 70 (2006). If no clearly established Federal law exists, the inquiry is at an end and the Court must defer to the state court's decision. Carey, 549 U.S. 70; Wright, 552 U.S. at 126; Moses, 555 F.3d at 760.

If the Court determines there is governing clearly established Federal law, the Court mustthen consider whether the state court's decision was "contrary to, or involved an unreasonable application of," [the] clearly established Federal law." Lockyer, 538 U.S. at 72 (quoting 28 U.S.C. § 2254(d)(1)). "Under the 'contrary to' clause, a federal habeas court may grant the writ if the state court arrives at a conclusion opposite to that reached by [the Supreme] Court on a question of law or if the state court decides a case differently than [the] Court has on a set of materially indistinguishable facts." Williams, 529 U.S. at 412-13; see also Lockyer, 538 U.S. at 72. "The word 'contrary' is commonly understood to mean 'diametrically different,' 'opposite in character or nature,' or 'mutually opposed.'" Williams, 529 U.S. at 405 (quoting Webster's Third New International Dictionary 495 (1976)). "A state-court decision will certainly be contrary to [Supreme Court] clearly established precedent if the state court applies a rule that contradicts the governing law set forth in [Supreme Court] cases." Id. If the state court decision is "contrary to" clearly established Supreme Court precedent, the state decision is reviewed under the pre-AEDPA de novo standard. Frantz v. Hazey, 533 F.3d 724, 735 (9th Cir.2008) (en banc).

"Under the 'reasonable application clause,' a federal habeas court may grant the writ if the state court identifies the correct governing legal principle from [the] Court's decisions but...