Nichols v. Knipp

• Decision Date: 06 August 2013
• Docket Number: No. 2:11-cv-368-GEB-EFB P,2:11-cv-368-GEB-EFB P
• Parties: DAVID ALLEN NICHOLS, Petitioner, v. WILLIAM KNIPP, Respondent.
• Court: U.S. District Court — Eastern District of California

DAVID ALLEN NICHOLS, Petitioner,

v.WILLIAM KNIPP, Respondent.

No. 2:11-cv-368-GEB-EFB P

UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF CALIFORNIA

DATED: August 6, 2013

FINDINGS AND RECOMMENDATIONS

Petitioner is a state prisoner without counsel proceeding with an application for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. Petitioner challenges a 2007 judgment of conviction entered against him in the Placer County Superior Court for failure to register as a sex offender. In his petition before this court he raises ten grounds for federal habeas relief. Upon careful consideration of the record and the applicable law, it is recommended that petitioner's application be denied.

I. Background¹

This case presented a simple factual question for the jury to resolve - did defendant David Allen Nichols, a convicted sex offender required to register under former Penal Code section 290,register with the Rocklin Police Department within five days of moving out of Rocklin? The jury determined he did not, in violation of former Penal Code section 290, subdivision (f)(1).² (See current §290.013, subd. (a).)

The jury also determined, however, that defendant had previously been convicted of three felonies and found true the allegation that these felonies constituted serious felonies within the meaning of the "Three Strikes" law. (§§ 1170.12, subds. (a)-(d); 667, subd. (b)-(I).) In addition, the trial court determined defendant had served three prior prison terms within the meaning of section 667.5, subdivision (b).

The trial court denied defendant's motion to strike his prior "strike" convictions, and it sentenced him to a prison term of 28 years to life: 25 years to life on the failure to register, plus one year for each of the prior prison terms.

* * *

Testifying at trial, defendant admitted three prior felony convictions. He was convicted in 1978 in Oregon of robbery; in 1982 of armed bank robbery, a federal offense; and in 1996 in Humboldt County of forcible oral copulation in violation of section 288a. Defendant committed this last offense in 1994 while he was on federal parole.

Defendant knew he was required to register under section 290 as a result of his sex offense conviction. Indeed, when asked if he was aware of his requirement to register, defendant replied, "Yes, pretty deeply actually." After completing his state prison sentence on the sex crime, he served four more years in prison due to the federal parole violation. During this incarceration and while serving as the head education clerk, he helped assemble a database of resources inmates could use upon their release. As part of this process, he specifically researched the registration requirements imposed on him under California law. He knew he had to register each time he moved.³

Defendant was released from custody in November 2004. Dayna Ward, a federal parole officer, supervised defendant. She had supervised him briefly in 1994 when he was first placed on federal parole. She met with defendant upon his release from state prison in 2004 and reviewed with him a notice of requirements for sex offender registration. Defendant signed the form, and Officer Ward directed him to register within five days.

Officer Ward also reviewed with defendant his conditions of parole. One of those conditions required defendant to notify his parole officer within two days of any change of his residence. Another condition prohibited defendant from leaving or moving out of the boundaries of the federal judicial Eastern District of California without prior approval from a parole officer.

In December 2004, upon his release from custody, defendant registered in Sacramento, the city where he lived. He registered again in Sacramento on January 24, 2005, upon changing his address. He registered in Sacramento a third time upon his birthday, February 15, 2005, as required by former section 290.

In early March 2005, defendant moved to a new residence on Aitken Dairy Road in Rocklin. He leased his Rocklin residence along with five other tenants: Eliza Edwards; defendant's business partner, Jim Dresser; a Russian couple; and the homeowner's father.

Upon moving to Rocklin, defendant registered with the Rocklin Police Department. He also informed Officer Ward of his new address. (There was no record, however, that he notified the Sacramento Police Department of his move to Rocklin. Defendant was not charged with this omission.)

In early April 2005, defendant left the Eastern District without permission from his parole officer and he moved out of the Rocklin house. On or about April 4, defendant told cotenant Edwards he had had an altercation with Dresser, and he asked if she would take care of his cat. He said he had to go and that he would be back. She heard him leave on his motorcycle. She never saw him again at the house.

Defendant testified that he drove to Big Sur, looked at the ocean, and then decided to go back. On April 7, 2005, he went into the parole office to speak with Officer Ward. She was on vacation, so he met with her supervisor, Officer Richard Ertola. He told Officer Ertola he had left the district on April 4. Officer Ertolatook the violation under advisement, and he told defendant to contact Officer Ward on April 18.

However, defendant testified that after meeting with Officer Ertola, he got on his motorcycle and left. He never went back to Rocklin. He also had no further contact with Officer Ward.

Defendant drifted around the country, attending shows and festivals, and "hiding out with the hippies." He was arrested on December 31, 2005, in San Francisco. He gave a false name to the police when he was arrested because, he said, he knew he had violated his parole.

The factual dispute at trial, which the jury decided against defendant, centered on whether defendant complied with his section 290 registration requirements when he "moved" from his Rocklin residence. Clerks from the Rocklin Police Department identified defendant's registration dated March 14, 2005, which defendant filed when he moved to Rocklin. One of the clerks who reviewed defendant's registration that day, Deeann Ralphs, noticed he had not provided any information about vehicles he owned. Defendant said he did not own any, so she wrote "NA" on the form. She would not have written NA unless he had told her he did not own any vehicles.

Ralphs, who was the police department's custodian of records, said defendant did not register again with the Rocklin police department because there were no additional registration forms in the file. Defendant had submitted a copy of his lease for the Aitkin Dairy Road residence, but there were no records in the file indicating defendant had changed his address after March 14, 2005.

Defendant, however, testified he returned to the Rocklin police department twice after registering there on March 14, both times in response to the clerks' request that he provide proof of his residence and vehicle information. On the first occasion, he went in without an appointment to drop off a copy of his lease agreement.

The second occasion occurred in April right before he left for Big Sur. He claimed that on this visit, he completed a form to provide the department with the vehicle identification number from his motorcycle. Where the form asked for his address, defendant wrote his Aitkin Dairy Road address and then wrote the words "in transit" after it. He gave the completed form to a clerk and left. He did not receive a copy of the form. It was defendant's understanding that writing the word "transit" on the form satisfied his obligation to inform the police department of his move out of Rocklin since he did not know where he would be living and he would be transient.

On the prosecution's rebuttal, department clerk Ralphs testified that a registrant who is moving and is going to become transient must note that information on a form. She also stated that registrants always receive a copy of their completed registration forms. The two other clerks who worked for the department testified they had not processed any paperwork for defendant regarding his move out of Rocklin.

Resp't's Lodg. Doc. 4 (Opinion) at 2-8.

After the California Court of Appeal affirmed petitioner's judgment of conviction, he filed a petition for review in the California Supreme Court in which he raised all of the claims contained in the petition before this court.⁴ Resp't's Lodg. Doc. 5 (Pet. for Review). That petition was summarily denied. Resp't's Lodg. Doc. 6.

II. Analysis

A. Standards for a Writ of Habeas Corpus

An application for a writ of habeas corpus by a person in custody under a judgment of a state court can be granted only for violations of the Constitution or laws of the United States. 28 U.S.C. § 2254(a). A federal writ is not available for alleged error in the interpretation or application of state law. See Wilson v. Corcoran, 562 U.S._, _, 131 S. Ct. 13, 16 (2010); Estelle v. McGuire, 502 U.S. 62, 67-68 (1991); Park v. California, 202 F.3d 1146, 1149 (9th Cir. 2000).

Title 28 U.S.C. § 2254(d) sets forth the following standards for granting federal habeas corpus relief:

An application for a writ of habeas corpus on behalf of a person in custody pursuant to the judgment of a State court shall not be granted with respect to any claim that was adjudicated on the merits in State court proceedings unless the adjudication of theclaim -

(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.

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 state court decision. Stanley v. Cullen, 633 F.3d 852, 859 (9th Cir. 2011) (citing Williams v. Taylor, 529 U.S....