Richardson v. Knipp, No. 2:11-cv-2996 GEB CKD P

CourtUnited States District Courts. 9th Circuit. United States District Courts. 9th Circuit. Eastern District of California
Writing for the CourtCAROLYN K. DELANEY
Decision Date29 August 2013
PartiesJIMMY RICHARDSON, Petitioner, v. WILLIAM KNIPP, Respondent.
Docket NumberNo. 2:11-cv-2996 GEB CKD P

JIMMY RICHARDSON, Petitioner,
v.
WILLIAM KNIPP, Respondent.

No. 2:11-cv-2996 GEB CKD P

UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF CALIFORNIA

Dated: August 29, 2013


FINDINGS AND RECOMMENDATIONS

Petitioner, a state prisoner, is proceeding pro se with a writ of habeas corpus pursuant to 28 U.S.C. § 2254. In 2004, petitioner was convicted of assault with a deadly weapon. The jury found that petitioner had two prior "strikes" under the Three Strikes Law, one of which was a 1992 conviction for evading a police officer and causing serious bodily injury. (Cal. Veh. Code § 2800.3.) Based in part on this strike, petitioner was sentenced in 2004 to an aggregate prison term of 25 years to life, plus 14 years. (Dkt. No. 1 ("Ptn.").)

Petitioner's instant claims dispute that the 1992 incident was a strike.1 He argues that (1) the use of live testimony at his 2004 trial to prove the 1992 strike was improper; (2) his appellate counsel was ineffective for failing to argue that a recent California Supreme Court case

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was applicable to petitioner; (3) the state courts improperly relied on the facts in a 1993 court opinion to uphold the 1992 strike; (4) the state courts improperly relied on the 1992 plea colloquy to uphold the 1992 strike; and (5) his appellate counsel was ineffective for failing to challenge the admissibility of petitioner's probation report to prove the 1992 strike.

Respondent has filed an answer, and petitioner has filed a traverse. (Dkt. Nos. 17 20.) Having carefully considered the applicable law and the record, the undersigned will recommend that the petition be denied.

BACKGROUND

I. Facts

The relevant factual background to petitioner's claims is set forth in two separate state court of appeal opinions: an unpublished 2006 decision on direct review and a published 2011 decision on habeas review, respectively. (Lod. Docs. 4, 20.) The court will set forth the particular facts underlying each claim in the "Claims" section of the instant findings and recommendations. The general backdrop to petitioner's claims is as follows:

After a jury convicted petitioner in 2004 of assaulting his wife with a deadly weapon (Pen. Code, § 245, subd. (a)), the court convened a bifurcated jury trial to determine whether petitioner's two prior felony convictions qualified as strikes for purposes of sentencing under the "Three Strikes" law. One of the alleged strikes was a 1992 conviction for evading a police officer and causing serious bodily injury. (Veh. Code, § 2800.3.)
For the evasion conviction to constitute a serious felony and thus a strike, the prosecution had to prove the serious bodily injury suffered by the victim constituted great bodily injury for purposes of the Three Strikes law, and that the victim who suffered the serious bodily injury from the evasion was not an accomplice. (Pen. Code, §§ 1192.7, subd. (c)(8), 1192.8.) In addition, the evidence supporting these factors had to come from the "record of conviction." (People v. "Guerrero (1988) 44 Cal.3d 343, 355, 243 Cal. Rptr. 688, 748 P.2d 1150 (Guerrero).)
. . .
Based on [the] evidence [presented], the jury determined the victims of the 1992 evasion were not accomplices, and that the prior strike allegations were true. Pursuant to the Three Strikes

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law, the court sentenced petitioner for the 2004 assault to state prison for 25 years to life, plus 14 years.

In re Richardson, 196 Cal. App. 4th 647, 652-657 (2011) (Lod. Doc. 20 at 1-12.).

II. Procedural History

After being convicted and sentenced in October 2004, petitioner appealed to the California Court of Appeal, Third Appellate District. (Lod. Doc. 1.) On August 18, 2006, the court of appeal issued an unpublished opinion in which it found that the trial court erred in permitting the prosecution to present live testimony in 2004 concerning the 1992 strike, but concluded that the error was not prejudicial, and affirmed the judgment. (Lod. Doc. 4 at 16-21, 23.) Petitioner filed a petition for review in the California Supreme Court (Lod. Doc. 5), which was denied on November 29, 2006. (Lod. Doc. 11, Ex. B.) On December 5, 2006, the court of appeal issued a remittitur. (Lod. Doc. 7.)

On December 11, 2006, the California Supreme Court issued a decision in People v. Trujillo, 40 Cal. 4th 165, 179 (2006), holding that a defendant's post-plea admission to a probation officer cannot be admitted to establish that a prior conviction is a strike.

Petitioner then filed a petition for writ of habeas corpus in the Sacramento County Superior Court, arguing that his appellate counsel was ineffective for failing to seek a stay of his previous appeal pending the resolution of Trujillo. (Lod. Doc. 8.) The superior court requested supplemental briefing and held an evidentiary hearing on May 29, 2009. (Lod. Doc. 13, Ex. L.) After further briefing by the parties, the superior court issued an order denying the petition on July 31, 2009. (Lod. Doc. 9; see also Lod. Doc. 13, Ex. M.)

Petitioner then filed a petition for writ of habeas corpus in the California Court of Appeal, Third Appellate District. (Lod. Doc. 10.) After briefing by the parties, the court denied the petition in a published decision. (Lod. Doc. 20.) Petitioner filed a petition for rehearing, which the People answered. (Lod. Doc. 21, 22.) The court of appeal issued two orders modifying the published opinion, but denied rehearing. (Lod. Docs. 23, 24.)

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Petitioner filed a petition for review in the California Supreme Court, which was denied on September 28, 2011. (Lod. Docs 25, 26.) Petitioner filed the instant petition on November 10, 2011. (Ptn.)

ANALYSIS

I. AEDPA

The statutory limitations of federal courts' power to issue habeas corpus relief for persons in state custody is provided by 28 U.S.C. § 2254, as amended by the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA). The text of § 2254(d) states:

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.

As a preliminary matter, the Supreme Court has recently held and reconfirmed "that § 2254(d) does not require a state court to give reasons before its decision can be deemed to have been 'adjudicated on the merits.'" Harrington v. Richter, 131 S. Ct. 770, 785 (2011). Rather, "when a federal claim has been presented to a state court and the state court has denied relief, it may be presumed that the state court adjudicated the claim on the merits in the absence of any indication or state-law procedural principles to the contrary." Id. at 784-785, citing Harris v. Reed, 489 U.S. 255, 265 (1989) (presumption of a merits determination when it is unclear whether a decision appearing to rest on federal grounds was decided on another basis). "The presumption may be overcome when there is reason to think some other explanation for the state court's decision is more likely." Id. at 785.

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The Supreme Court has set forth the operative standard for federal habeas review of state court decisions under AEDPA as follows: "For purposes of § 2254(d)(1), 'an unreasonable application of federal law is different from an incorrect application of federal law.'" Harrington, supra, 131 S. Ct. at 785, citing Williams v. Taylor, 529 U.S. 362, 410 (2000). "A state court's determination that a claim lacks merit precludes federal habeas relief so long as 'fairminded jurists could disagree' on the correctness of the state court's decision." Id. at 786, citing Yarborough v. Alvarado, 541 U.S. 652, 664 (2004). Accordingly, "a habeas court must determine what arguments or theories supported or . . could have supported[] the state court's decision; and then it must ask whether it is possible fairminded jurists could disagree that those arguments or theories are inconsistent with the holding in a prior decision of this Court." Id. "Evaluating whether a rule application was unreasonable requires considering the rule's specificity. The more general the rule, the more leeway courts have in reaching outcomes in case-by-case determinations.'" Id. Emphasizing the stringency of this standard, which "stops short of imposing a complete bar of federal court relitigation of claims already rejected in state court proceedings[,]" the Supreme Court has cautioned that "even a strong case for relief does not mean the state court's contrary conclusion was unreasonable." Id., citing Lockyer v. Andrade, 538 U.S. 63, 75 (2003).

The undersigned also finds that the same deference is paid to the factual determinations of state courts. Under § 2254(d)(2), factual findings of the state courts are presumed to be correct subject only to a review of the record which demonstrates that the factual finding(s) "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." It makes no sense to interpret "unreasonable" in § 2254(d)(2) in a manner different from that same word as it appears in § 2254(d)(1) - i.e., the factual error must be so apparent that "fairminded jurists" examining the same record could not abide by the state court factual determination. A petitioner must show clearly and convincingly that the factual determination is unreasonable. See Rice v. Collins, 546

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U.S. 333, 338 (2006).

The habeas corpus petitioner bears the burden of demonstrating the objectively unreasonable nature of the state court decision in light of controlling Supreme Court authority. Woodford v. Viscotti, 537 U.S. 19 (...

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