Kessler v. Johnson

• Decision Date: 04 January 2016
• Docket Number: No. 1:10-cv-00322-LJO-BAM HC,1:10-cv-00322-LJO-BAM HC
• Parties: KELLY ALICE KESSLER, also known as KELLY ALICE ARMSTRONG, Petitioner, v. DEBORAH K. JOHNSON, Warden, and JEFFREY BEARD, Ph.D., Secretary, California Department of Corrections and Rehabilitation, Respondents.
• Court: U.S. District Court — Eastern District of California

KELLY ALICE KESSLER,also known as KELLY ALICE ARMSTRONG, Petitioner, v. DEBORAH K. JOHNSON, Warden, and JEFFREY BEARD, Ph.D., Secretary,California Department of Corrections and Rehabilitation, Respondents.

No. 1:10-cv-00322-LJO-BAM HC

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF CALIFORNIA

January 4, 2016

FINDINGS AND RECOMMENDATIONS RECOMMENDING DENIAL OF PETITION FOR WRIT OF HABEAS CORPUS

(Docs. 24 and 35)

Petitioner, a state prisoner represented by counsel, proceeds with a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254. In February 2003, a jury convicted Petitioner of (1) felony possession of a firearm with prior conviction (Cal. Penal Code § 12021.1); (2) exhibiting a firearm (Cal. Penal Code § 417(a)(2)); (3) petty theft (Cal. Penal Code § 484(a)); and (4) aggravated trespass (Cal. Penal Code § 602.5(b)). In May 2003, the Tuolumne County Superior Court applied California's three strikes law (Cal. Penal Code § 667) and sentenced Petitioner to an aggregate prison term of 26 years to life. Petitioner claims as grounds for habeas relief (1) ineffective assistance of counsel contrary to the Sixth Amendment arising from trial counsel's failure (a) to investigate a prior Nevada burglary conviction which the state court counted as a strike and (b) to advise her of her right to bifurcate her prior convictions from the case in chief; (2) due process violations of the Fifth and Fourteenth Amendments arising from the prosecution's misrepresentation that legally cognizable evidence supported the conclusion that the prior Nevada burglary conviction constituted a strike under California law; (3) due process violations of the Fifth and Fourteenth Amendments arising from the prosecution's failure to disclose impeaching information concerning the victim's health and eyesight; and (4) due process violations of the Fifth and Fourteenth Amendments arising from the State's determination that the prior Nevada burglary conviction was a strike.

I. Factual Background

The California Court of Appeal found the following facts in Petitioner's direct appeal of her conviction:

About five months prior to November 2001, [Petitioner] and Dorrey Hite drove from Tuolumne to Modesto and made a heroin purchase at a house in Modesto. Sometime later, Hite returned to the Modesto house without [Petitioner] and made another heroin purchase.

On November 18, 2001, at about 2:30 a.m., [Petitioner] and Kevin Wallen arrived at Hite's Tuolumne apartment and kicked the door in.¹ [Petitioner] had a big black gun. She swung the gun around, pointed it at Hite's face, and said at least three times "I'm going to shoot you!" [Petitioner] said that Hite had gone to [Petitioner's] "connection's house," and said something about losing $20 in a drug deal. Hite ran out the back door of her apartment, yelled "she's got a gun" and yelled for her neighbors to call the police. [Petitioner] followed Hite to the back steps of the nearby apartment of her neighbor, John Castro. Castro came out, saw Hite struggling with [Petitioner], and broke the two women apart. Vickie Paul, a friend of Castro's wife and a guest in Castro's apartment, came out and went into Hite's apartment. Paul saw Wallen at Hite's front door, and heard Wallen say to [Petitioner] "Let's go." [Petitioner] left by reentering the back door of Hite's apartment, walking through the apartment, and then exiting through the front door. While walking through, [Petitioner] took Hite's cellular telephone. Very shortly thereafter, [Petitioner] approached Hite's front door again, this timecarrying an open Buck knife. The police arrived, and [Petitioner] dropped the knife and walked to the police vehicle.

Police found the gun and Hite's cellular telephone in the Ford Bronco [Petitioner] and Wallen had driven to Hite's apartment. Wallen was sitting in the parked Ford Bronco when police arrived at the scene. Police found the open knife with its blade stuck in the ground near Hite's front door. The knife had the initials "K.W." etched on the blade.

People v. Kessler, 2004 WL 1067965 at *1-2 (Cal. App. May 13, 2004) (No. F043033).

II. Procedural Background

On or about December 21, 2001, the Tuolumne County District Attorney charged Petitioner with the following crimes: (1) felony possession of a firearm with prior conviction (Cal. Penal Code § 12021.1); (2) exhibiting a firearm (Cal. Penal Code § 417(a)(2)); (3) petty theft (Cal. Penal Code § 484(a)); and (4) aggravated trespass (Cal. Penal Code § 602.5(b)). The complaint alleged prior felony convictions of robbery (Cal. Penal Code § 212.5(b)) and receiving stolen property (Cal. Penal Code § 496(a)) in San Francisco, California (December 1, 1994), and burglary (Nev. Rev. Stats. § 205.060) in Carson City, Nevada (August 1, 1995). On February 28, 2003, following a three-day trial, the jury convicted Petitioner on all counts. On May 5, 2003, the court sentenced Petitioner to an aggregate prison term of 26 years to life.

Petitioner filed a direct appeal on May 8, 2003. She contended that (1) her prior burglary conviction in Nevada did not constitute a strike under California law, and (2) the trial court erred in failing to instruct the jury on voluntary intoxication. The Court of Appeals affirmed the conviction on May 13, 2004, and denied Petitioner's petition for rehearing on June 3, 2004. The California Supreme Court denied review on July 28, 2004.

On February 28, 2005, Petitioner filed a petition for writ of habeas corpus in Tuolumne County Superior Court in which she contended that:

(1) The prosecution violated Petitioner's right to due process by suppressing material exculpatory evidence concerning Dorrey Jean Hite's lack of capacity to perceive the events about which she testified at trial;

(2) The prosecution violated Petitioner's right to due process of law by representing to the Tuolumne Superior Court that there was legally-cognizable evidence that Petitioner had been convicted of first degree burglary in the State of Nevada when in fact the public record of that conviction contains no such evidence; and

(3) Petitioner was denied her Sixth Amendment right to effective assistance of counsel.

See Doc. 7 at 38-39.

The Superior Court denied the petition on March 16, 2005.

On April 11, 2005, Petitioner filed a writ of habeas corpus in the California Court of Appeal. The Court of Appeal found that Petitioner's claims were based on speculation and unsworn testimony. On June 28, 2006, the Court of Appeal denied the petition and directed Petitioner to file an amended petition in Superior Court, including more complete declarations or explaining why such declarations are unavailable.

On October 23, 2006, Petitioner filed an amended petition for writ of habeas corpus in Tuolumne County Superior Court, alleging the original three claims plus two more:

(IV) The Tuolumne County Superior Court erred in denying habeas corpus relief on the grounds that (A) Petitioner's first claim does not make a prima facie showing of grounds for relief under Brady v. Maryland, and (B) Petitioner's second and third claims were, or could have been, raised on appeal.

(V) All issues referenced in the Court of Appeal's June 28, 2006 order have been fully addressed in the instant petition.

See Doc. 9 at 4-5.

Finding that Petitioner's claims were still speculative and lacked factual support, the Superior Court denied the amended petition on December 29, 2006.

On January 16, 2007, Petitioner again filed a petition for writ of habeas corpus in the California Court of Appeal. On January 25 and April 4, 2007, the Court of Appeal asked Petitioner's trial attorney, Richard E. Hove, to file a declaration responding to Petitioner's claims

///of ineffective assistance of counsel. Mr. Hove did not respond. On August 15, 2008, the Court of Appeal denied the petition without prejudice.

On September 12, 2008, Petitioner filed a third petition for writ of habeas corpus in the Tuolumne County Superior Court. She alleged the previous five claims plus two more:

(VI) The Tuolumne County Superior Court erred in denying Petitioner's amended petition for writ of habeas corpus.

(VII) All issues referenced in the Court of Appeal's August 15, 2008 order have been fully addressed in the instant petition.

See Doc. 10-1 at 5-6.

The Superior Court denied the petition on December 12, 2008.

Petitioner filed a petition in the Court of Appeals on January 6, 2009. On October 30, 2009, the Court of Appeals found that Petitioner had made a prima facie case for habeas relief on two issues: (1) the suppression of probation records relevant to the eyesight of witness Dorrey Hite and (2) ineffective assistance of trial counsel regarding Petitioner's prior burglary conviction in Nevada. (These two issues comprise federal claims one and three.) The appellate court ordered the Tuolumne County Superior Court to show cause why Petitioner was not entitled to habeas relief. On November 13, 2009, the Superior Court ordered the California Department of Corrections and Rehabilitation to show cause why the petition should not be granted.

On December 1, 2009, Petitioner petitioned the California Supreme Court for review of the issue for which the Court of Appeals did not find Petitioner had made a prima facie showing: whether the prosecuting attorney expressly represented to the trial court, and by extension the Court of Appeal and the California Supreme Court, that he possessed evidence that Petitioner had previously incurred a burglary conviction that qualified as a strike when no such evidence existed. (This issue is claim two in Petitioner's federal habeas petition.) The California Supreme Court denied the petition for review on February 18, 2010.

On February 23, 2010, Petitioner filed a federal petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254. On October 22, 2010, the Court stayed the petition on Petitioner's motion to permit her exhaustion of federal claims one and three, then pending in the Tuolumne Superior Court.

On May 20,...