Owens v. Ventura County Superior Court, CV 98-3964 AHM(RC).

Decision Date09 March 1999
Docket NumberNo. CV 98-3964 AHM(RC).,CV 98-3964 AHM(RC).
Citation42 F.Supp.2d 993
CourtU.S. District Court — Central District of California
PartiesAmby Gary OWENS, Petitioner, v. VENTURA COUNTY SUPERIOR COURT, et al., Respondents.

Darryl E. Mounger, Sherman Oaks, CA, Diane E. Berley, Woodland Hills, CA, for petitioner.

Kevin B. Drescher, Ventura County District Attorney, Ventura, CA, for respondents.

ORDER ADOPTING REPORT AND RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE

MATZ, District Judge.

Pursuant to 28 U.S.C. Section 636, the Court has reviewed the Petition and other papers along with the attached Report and Recommendation of United States Magistrate Judge Rosalyn M. Chapman, as well as petitioner's objections, and has made a de novo determination.

IT IS ORDERED that (1) the Report and Recommendation is approved and adopted; (2) the Report and Recommendation is adopted as the findings of fact and conclusions of law herein; and (3) Judgment shall be entered denying the petition for writ of habeas corpus and dismissing the action with prejudice.

IT IS FURTHER ORDERED that the Clerk shall serve copies of this Order, the Magistrate Judge's Report and Recommendation and Judgment by the United States mail on the parties.

REPORT AND RECOMMENDATION OF A UNITED STATES MAGISTRATE JUDGE

CHAPMAN, United States Magistrate Judge.

This Report and Recommendation is submitted to the Honorable A. Howard Matz, United States District Court Judge, pursuant to the provisions of 28 U.S.C. § 636 and General Order 194 of the United States District Court for the Central District of California.

BACKGROUND
I

On February 14, 1997, in the Ventura County Superior Court, petitioner Amby Gary Owens pleaded nolo contendere to, and was convicted of, operating an endless chain scheme in violation of California Penal Code ("P.C.") § 327, a felony. Clerk's Transcript ("CT") 42. The trial court reduced the conviction to a misdemeanor, pursuant to P.C. § 17(b). CT 42-43. The petitioner was sentenced to three years informal probation, which was stayed on certain conditions, including that he perform 80 hours of community service. Id.

The petitioner appealed his conviction to the California Court of Appeal, which affirmed the judgment on November 26, 1997, in a published opinion, People v. Owens, 59 Cal.App.4th 798, 69 Cal.Rptr.2d 428 (1997). Return to Writ of Habeas Corpus ("Return"), Exhibit ("Exh.") A. The petitioner then filed a petition for review in the California Supreme Court, which was denied on February 25, 1998. Return, Exh. B.

II

The California Court of Appeal found the following facts and circumstances underlying the petitioner's conviction: On July 13, 1995, petitioner and approximately 70 other people attended a recruiting meeting for a pyramid scheme to which petitioner already belonged. After the meeting, petitioner accepted two envelopes, each containing $2,000.00, from a new member. He was the only person present at the July 13, 1995 meeting who was prosecuted. Another meeting held for the same pyramid scheme resulted in the prosecution of two Simi Valley police officers and five civilians. Although the civilians were offered misdemeanor dispositions by the district attorney, the prosecutor would accept only felony pleas from the police officers.

The petitioner moved to dismiss the indictment as a discriminatory prosecution arguing that he was prosecuted and required to plead to a felony only because he is a police officer. Although the trial court agreed that petitioner's status as a police officer motivated both his prosecution and the felony charge, it denied the motion after concluding that it was "perfectly permissible" for the district attorney to distinguish between police officers and civilians in charging decisions.1

III

On May 21, 1998, petitioner, through his counsel, filed the instant petition for writ of habeas corpus. On October 5, 1998, respondent District Attorney of Ventura County filed his return with supporting memorandum of points and authorities. On January 5, 1999, respondent California Attorney General filed his return. The petitioner filed his supplemental traverse to respondent District Attorney's return on November 20, 1998, and his traverse to respondent California Attorney General's return on January 25, 1999.

In his application for writ of habeas corpus, petitioner challenges his conviction and sentence on the following grounds:

Ground One: "The California courts violated the rights of all California peace officers to equal protection under the Fourteenth Amendment, [sic] when they approved of and expanded the discriminatory enforcement of the criminal laws against petitioner Amby Gary Owens, an off-duty peace officer at the time of the offense." Petition at 6-A.

Ground Two: "The California courts violated the rights of all California peace officers to due process under the Fifth and Fourteenth Amendments, [sic] when they concluded that peace officers who commit crimes are `morally culpable to a greater extent than the civilian[s]' who commit crimes and suggested they be held to a higher standard and charged more harshly." Petition at 6-B.

Ground Three: "The California courts violated the separation of powers when they concluded that peace officers who commit crimes are `morally culpable to a greater extent than the civilian[s]' who commit crimes and suggested that prosecutors hold officers to a higher standard and charge them more harshly." Id.

DISCUSSION
IV

The petitioner's claims must be considered in light of the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA),2 which "worked substantial changes to the law of habeas corpus." Moore v. Calderon, 108 F.3d 261, 263 (9th Cir.), cert. denied, 521 U.S. 1111, 117 S.Ct. 2497, 138 L.Ed.2d 1003 (1997). Of specific importance to the petitioner's claims are the revisions made to 28 U.S.C. § 2254(d), which now provides that:

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 the 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.

Further, under the AEDPA, a federal court shall presume that the determination of factual issues made by a state court is correct, and the petitioner has the burden of rebutting that presumption by clear and convincing evidence. 28 U.S.C. § 2254(e)(1).

Here, the petitioner raised his claim before the California Supreme Court in his petition for review, which was denied without a written opinion. The California Supreme Court's decision, however, is presumed to be on the merits even though it is not accompanied by an explanation. Hunter v. Aispuro, 982 F.2d 344, 348 (9th Cir.1992), cert. denied, 510 U.S. 887, 114 S.Ct. 240, 126 L.Ed.2d 194 (1993). "[W]here there has been one reasoned state judgment rejecting a federal claim, later unexplained orders upholding that judgment or rejecting the same claim rest upon the same ground." Ylst v. Nunnemaker, 501 U.S. 797, 803, 111 S.Ct. 2590, 2594, 115 L.Ed.2d 706 (1991). Thus, to determine the reasonableness of the California Supreme Court's decision, which was without a written explanation, this Court must consider the opinion of the California Court of Appeal, which did fully explain its reasoning.

V

"Whether to prosecute and what charge to file or bring before a grand jury generally rest in the prosecutor's discretion." United States v. Batchelder, 442 U.S. 114, 124, 99 S.Ct. 2198, 2204, 60 L.Ed.2d 755 (1979). This discretion, however, is "subject to constitutional constraints." Id. at 125, 99 S.Ct. at 2204-05. One of these constraints is imposed by the equal protection clause of the Fourteenth Amendment and the equal protection component of the Fifth Amendment. United States v. Armstrong, 517 U.S. 456, 464, 116 S.Ct. 1480, 1486, 134 L.Ed.2d 687 (1996); Wayte v. United States, 470 U.S. 598, 608 & n. 9, 105 S.Ct. 1524, 1531 & n. 9, 84 L.Ed.2d 547 (1985). Under the equal protection provisions, the decision whether to prosecute may not be based on "an unjustifiable standard such as race, religion, or other arbitrary classification." Armstrong, 517 U.S. at 464, 116 S.Ct. at 1486 (quoting Oyler v. Boles, 368 U.S. 448, 456, 82 S.Ct. 501, 506, 7 L.Ed.2d 446 (1962)); See also Wayte, 470 U.S. at 608, 105 S.Ct. at 1531 (holding decision to prosecute also may not be based upon exercise of protected statutory and constitutional rights); United States v. Taylor, 693 F.2d 919, 923 (9th Cir.1982) (requiring defendant show Government selected him from larger group of non-prosecuted alleged violators because of his exercise of constitutional right).

Discriminatory or selective prosecution claims are analyzed according to ordinary equal protection standards. Armstrong, 517 U.S. at 465, 116 S.Ct. at 1487; Wayte, 470 U.S. at 608, 105 S.Ct. at 1531. Therefore, to demonstrate impermissible discriminatory or selective prosecution, a criminal defendant must show that others similarly situated have not been prosecuted and that the prosecution is based on an impermissible motive. Wayte, 470 at 608, 105 S.Ct. at 1531; United States v. Lee, 786 F.2d 951, 957 (9th Cir.1986); see also United States v. Davis, 36 F.3d 1424, 1432 (9th Cir.1994), cert. denied, 513 U.S. 1171, 115 S.Ct. 1147, 130 L.Ed.2d 1106 (1995) ("To establish a prima facie case of selective prosecution, a defendant must show both (1) that others similarly situated have not been prosecuted, and (2) that the prosecution is based on an impermissible motive, i.e. discriminatory purpose or intent.").

The petitioner contends that h...

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