Putney v. Swarthout

• Decision Date: 10 March 2016
• Docket Number: Case No.: 1:13-cv-00771-LJO-JLT
• Parties: THOMAS EARL PUTNEY, Petitioner, v. GARY SWARTHOUT, Warden, Respondent.
• Court: U.S. District Court — Eastern District of California

THOMAS EARL PUTNEY, Petitioner, v. GARY SWARTHOUT, Warden, Respondent.

Case No.: 1:13-cv-00771-LJO-JLT

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF CALIFORNIA

March 10, 2016

FINDINGS AND RECOMMENDATIONS TO DENY FIRST AMENDED PETITION FOR WRIT OF HABEAS CORPUS (Doc. 13)

ORDER DIRECTING THAT OBJECTIONS BE FILED WITHIN TWENTY-ONE DAYS

In 2010, the court sentenced petitioner to 25-year-to-life under California's Three Strikes law. Petitioner claims he suffered ineffective assistance of counsel at trial when his attorney failed to raise Petitioner's incompetency and seek a hearing on it and by counsel's failure to investigate defenses related to his mental competency, to seek a pela bargain and to present defenses at sentencing related to his mental condition. Finally, Petitioner claims his sentence violates the Eighth Amendment's prohibition against cruel and unusual punishment. For the reasons set forth below, the Court recommends the petition be DENIED.

I. PROCEDURAL HISTORY

In 2010, Petitioner was convicted in the Fresno County Superior Court of possession of a dirk or dagger. (Cal. Pen. Code § 120220(a)). (Volume I, Clerk's Transcript on Appeal ("Volume CT page"), p. 12). Petitioner admitted two prior "serious" or "violent" felonies that qualified as strikes under California's "Three Strikes" law (Cal. Pen. Code §§ 667(d) & (e)). (Id.). As a result, the court sentenced him to 25 years-to-life.

Petitioner appealed to the California Court of Appeals, Fifth Appellate District (the "5^th DCA"), which affirmed the conviction. (Excerpt of Record ("EC") 7). The California Supreme Court did similarly. (Doc. 29, Exh. 1).

II. FACTUAL BACKGROUND

The Court adopts the Statement of Facts in the 5^th DCA's unpublished decision¹:

The following facts are derived from the probation officer's report. The incident occurred at Coalinga State Hospital, a secured maximum security forensic hospital that houses sexually violent predators, mentally disturbed offenders, and state prisoners with mental disorders. On November 19, 2010, hospital police officers observed four inmates engaged in suspicious behavior in the hallway. Officers heard several people yelling and a group of individuals exchanging punches with one another. One of those individuals, Putney's co-defendant, inmate Joseph Taylor, was seen holding a weapon. Taylor refused to drop the weapon when ordered to do so and continued running down the hallway chasing another inmate. Taylor approached an officer and lunged at him with the weapon, striking him in the center abdomen with what officers believed was a knife, and then continued to run down the hallway. Officers deployed pepper spray and eventually subdued Taylor, at which time he was found to be unarmed.

About 30 minutes later, another officer made contact with Putney. Although Putney initially denied having a weapon, officers searched Putney and found a homemade manufactured weapon six inches long on his person. The blade was flat, had a dark tint, and was sharpened on both ends. Putney told an officer he was just protecting his "homey," Taylor, and "I didn't use it, but would have."

According to the probation report, as a juvenile Putney had sustained petitions for arson (§ 452, subd. (b)), vehicle theft (Veh.Code, § 10851) and battery (§§ 242, 243, subd. (c)), and was committed to the California Youth Authority (CYA) in 1987. He was paroled from CYA in November 1988, and in March 1990, was discharged from CYA parole under dishonorable circumstances. One month later, he was arrested and convicted of a misdemeanor weapons charge (former § 12020, subd. (a)). This conviction was followed by a string of arrests and the following convictions: (1) possession of drug paraphernalia (Health & Saf.Code, § 11364) in July 1990; (2) fighting (§ 415) and misdemeanor weapons charge (former § 12020, subd. (a)), in August 1990; and (3) misdemeanor weapons charge (former § 12020, subd. (a)) in September 1990, for which he received two years probation.

Putney's three strike priors arose from offenses committed in 1990. Between June and August 1990, Putney forcibly raped and sodomized two young boys, ages four and nine. The nine-year-old boy suffered anal trauma and internal hemorrhoids as a result of Putney's forcible rape. The four-year-old, who suffered scarring on his anus, related that Putney threatened him, saying "he better not tell." In a psychological evaluation of Putney, performed by Dr. Ronald Byledbal, M.D. in February 1991, Putney was diagnosed as a pedophile. According to Dr. Byledbal, "the pedophilic oriented towards male victims has a higher recidivism and is more recalcitrant to treatment." In 1991, Putney was convicted of three counts of section 288, subdivision (a), and sentenced to 10 years in prison.

In 1992, while in prison, Putney was convicted of being a prisoner in possession of a weapon (§ 4502) and sentenced to an additional two years. In February 2003, Putney was found to be a sexually violent predator pursuant to Welfare and Institutions Code section 6600, and ordered to be confined for two years in a state hospital. From 2003 to the present offense, Putney has been under continual commitment at both Coalinga and Atascadero State Hospitals.

Putney told the probation officer that he was placed in foster care when he was nine years old after his grandmother physically abused him and he was left alone at home. Putney said his uncles sexually abused him when he was five and eight. Putney had a history of suicide attempts, beginning at age 12. He attempted suicide in 1991, and again while in prison in 1995 and 1999. Putney stated he had received different diagnoses ranging from bipolar to psychotic and schizophrenic disorders, and he had sometimes seen people and heard voices. At the time of the probation department report, Putney said he was not suicidal and was not receiving medication. In the past he had been off and on medication. He stopped taking medications three months before because he was getting extremely paranoid that the medication was hindering his thoughts and causing nerve damage.

When interviewed by the probation officer on December 29, 2010, Putney said he saw the fight; he did not see Taylor with a weapon and he did not give him one. Putney admitted having a knife himself and said it had been in his possession for over a year. He hid the knife in different places so he would not be caught with it. He claimed he needed a weapon for protection because he had been abused by staff, inmates and police officers over the years.

(ER 7, pp. 3-5).

III. DISCUSSION

A. 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 Fresno 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 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 grounds by Lindh, 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.

B. 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 ...