Mayhan v. Gipson

Decision Date12 June 2016
Docket NumberCase No. 1:14-cv-01691-DAD-JLT
CourtU.S. District Court — Eastern District of California
PartiesHAYWARD LEE MAYHAN, Petitioner, v. CONNIE GIPSON, Respondent.



In 2009, a jury convicted Hayward Mayhan of attempted murder, attempted murder of a public official, assault with a deadly weapon by a prisoner and other crimes. The trial court sentenced him to a prison term of 91-years to life. In this action, he contends the Court should grant his habeas petition for many reasons including errors he contends the trial court committed and ineffective assistance of trial counsel among other claims. The Court concludes Petitioner has failed to demonstrate entitlement to relief and recommends the petition be DENIED.


In 2009, a jury convicted Petitioner of attempted murder with premeditation, attempted murder of a public official, assault with a deadly weapon by a prisoner battery by a prisoner on a non-confined person and custodial possession of a weapon. (Doc. 17, Ex. A ("Ex. A"), p. 2) The trial court sentenced him to an indeterminate term of 91-years-to-life. The jury also found true the allegations that Petitioner had suffered three prior strike convictions, had served two prior prison terms and had suffered three prior serious felony convictions. (Id.)

Petitioner appealed to the California Court of Appeals, Fifth Appellate District (the "5th DCA"), which conditionally reversed the judgment and found the trial judge erred in denying one of Petitioner's motions for new counsel. (Ex. A, p. 18) The court remanded the case to the trial court to conduct a new Marsden hearing on substitution of counsel. The 5th DCA ruled that if the trial court denied the motion, it should reinstate the judgment. (Id.) If it granted the motion, the judge should appoint new counsel and proceed accordingly. (Id.) The court also ordered that upon reinstatement of the conviction, the superior court should enter a minute order reflecting several corrections to the sentence discussed in the 5th DCA's opinion. (Id.) Petitioner then filed a petition for review in the California Supreme Court that was summarily denied. (Lodged Document ("LD") 35)

Upon remand, the superior court conducted a new Marsden hearing (Doc. 17, Ex. B ("Ex. B"), p. 22) and denied the Marsden motion. (Id.) Petitioner appealed again but the 5th DCA affirmed the superior court's ruling. (Id.) Petitioner's subsequent petition for review in the California Supreme Court was denied. (LD 50)


The Court adopts the Statement of Facts in the 5th DCA's unpublished decision1:

On October 15, 2006, while working in the security housing unit at Corcoran State Prison, Correctional Officers Thom Hieng and Frank Braswell attempted to serve appellant, an inmate, dinner in his cell. Normally, the food tray is passed into the food port and the inmate takes the food tray and eats it at his bunk. But after Officer Braswell put appellant's food tray on the food port, appellant lunged forward and shoved the tray out of the food port door, bruising Officer Hieng's thumb in the process. Appellant then stuck a "long stick," an inmate-manufactured spear, out of the food port and thrust it several times within an inch or two of Hieng's neck and face. Braswell moved toward Hieng, and appellant then shoved the spear several times towards Braswell's chest area. Hieng ordered appellant to "pull back" several times, but appellant did not comply. Hieng then pepper-sprayed appellant and appellant pulled his arm and the weapon back into his cell.
Officer Braswell closed appellant's food port and called for backup. Another officer instructed appellant to put his hands into the food port so that he could be handcuffed. Appellant did not initially comply. Once he did, he was taken to be decontaminated from the pepper spray. A search of appellant's cell revealed a spear, about two feet long, near appellant's mattress. The shaft of the spear was constructed of tightly rolled newspaper or magazines and wrappedin cloth or sheet material. The tip of the spear was a state-issued toothbrush that had been sharpened to a point.
The Defense
Appellant testified on his own behalf that "[a]n incident did occur, I guess it was an ongoing incident prior to that lead up to the incident." According to appellant, in the months prior to the incident, he had been treated inhumanely and with disrespect by correctional officers, specifically by Officer Braswell. He had not been fed "for weeks at a time at dinnertime," and rocks and bleach had been put in his food. He had been housed with inmates who had AIDS, HIV, and hepatitis C. He had been beaten and physically abused. His attempts to resolve these problems through the inmate grievance system had produced no result. On the day in question, appellant was "fed up," "tired" and "starving."
Appellant testified that he was "not saying that an incident didn't happen, but [he had] tried to resolve it in so many different ways," including asking to be moved and filing inmate complaints. What he was trying to do on the day of the incident was make the officers stop the harassment. He admitted having made the spear with a sharp point, though he claimed the toothbrush point was not the point he used. He denied trying to kill Officer Hieng during the incident or even trying to stab him. It was Officer Braswell he tried to stab. He explained: "If that is what it took to let him know to stop treating me the way he was treating me then I guess." "As far me trying to premeditate, kill somebody or hurt somebody, you don't think like that when you are put in a position to just—you just don't want to be bothered ... and that is just the way life is, that is the way we live."
On cross-examination, appellant acknowledged that he had been in the security housing unit for six-and-a-half to seven years, initially for conspiracy to murder a correctional officer. After he was found not guilty of that offense, he remained because he was a threat to the "safety and security of these officers."

(Ex. A, pp. 2-3)

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, 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 n. 7 (2000). Petitioner asserts that he suffered violations of his rights as guaranteed by the United States Constitution. The challenged conviction arises out of the 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 its enactment. Lindh v. Murphy, 521 U.S. 320 (1997), cert. denied, 522 U.S. 1008, 118 S.Ct. 586 (1997); Jeffries v. Wood, 114 F.3d 1484, 1500 (9th Cir. 1997), cert. denied, 520 U.S. 1107 (1997), overruled on other groundsby Lindh v. Murphy, 521 U.S. 320 (holding the AEDPA only applicable to cases filed after statute's enactment). The instant petition was filed after the enactment of the AEDPA and is therefore governed by its provisions.

II. Legal Standard of Review

A petition for writ of habeas corpus under 28 U.S.C. § 2254(d) will not be granted unless the 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); Lockyer v. Andrade, 538 U.S. 63, 70-71 (2003); Williams, 529 U.S. at 412-413.

A state court decision is "contrary to" clearly established federal law "if it applies a rule that contradicts the governing law set forth in [the Supreme Court's] cases, or "if it confronts a set of facts that is materially indistinguishable from a [Supreme Court] decision but reaches a different result." Brown v. Payton, 544 U.S. 133, 141 (2005), citing Williams, 529 U.S. at 405-406 (2000).

In Harrington v. Richter, 562 U.S. ___, 131 S.Ct. 770 (2011), the U.S. Supreme Court explained that an "unreasonable application" of federal law is an objective test that turns on "whether it is possible that fairminded jurists could disagree" that the state court decision meets the standards set forth in the AEDPA. The Supreme Court has "said time and again that 'an unreasonable application of federal law is different from an incorrect application of federal law.'" Cullen v. Pinholster, 131 S.Ct. 1388, 1410-1411 (2011). Thus, a state prisoner seeking a writ of habeas corpus from a federal court "must show that the state court's ruling on the claim being presented in federal court was so lacking in justification that there was an error well understood and comprehended in existing law beyond any possibility of fairminded disagreement." Harrington, 131 S.Ct. at 787-788.

The second prong pertains to state court decisions based on factual findings. Davis v. Woodford, 384 F.3d at 637, citing Miller-El v. Cockrell, 537 U.S. 322 (2003). Under § 2254(d)(2), a federal court may grant habeas relief if a state court's adjudication of the petitioner's claims "resulted in a decision that was based on an unreasonable determination of the facts in light of the evidencepresented in the State court proceeding." Wiggins v. Smith, 539 U.S. at 520; Jeffries v. Wood, 114 F.3d at 1500. A state court's factual finding is unreasonable when it is "so clearly incorrect that it would not be debatable among reasonable...

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