Robinson v. Hill

• Decision Date: 30 April 2019
• Docket Number: Case No. 2:13-cv-01311-TJH (KES)
• Court: U.S. District Court — Central District of California
• Parties: ERIC MARK ROBINSON, Petitioner, v. RICK HILL, Warden, Respondent.

ERIC MARK ROBINSON, Petitioner, v. RICK HILL, Warden, Respondent.

Case No. 2:13-cv-01311-TJH (KES)

UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA

April 30, 2019

AMENDED REPORT AND RECOMMENDATION OF U.S. MAGISTRATE JUDGE

This Amended Report and Recommendation ("R&R") is submitted to the Honorable Terry J. Hatter, Jr., United States District Judge, pursuant to the provisions of 28 U.S.C. § 636 and General Order 05-07 of the United States District Court for the Central District of California.

TABLE OF CONTENTS

I. INTRODUCTION 1

II. FACTUAL BACKGROUND 1

III. PROCEDURAL HISTORY 4

A. Conviction and Sentencing 4

B. Direct Appeal and Pro Se State Habeas Petitions 7

C. Federal Habeas Proceedings and State Exhaustion Petitions 8

IV. STANDARD OF REVIEW 10

V. CLAIMS EXHAUSTED ON DIRECT APPEAL 12

A. Relevant State Court Decision 12

B. Grounds 1 and 2: Petitioner's Competence to Stand Trial 13

1. Legal Standard 13

2. Summary of Relevant Trial Court Proceedings 15

3. Decision of the California Court of Appeal on Direct Appeal 46

4. Analysis 50

C. Ground 3: Petitioner's Competence to Represent Himself 57

1. Relevant Trial Court Proceedings 58

2. Ruling of the California Court of Appeal 60

3. Legal Standard 64

4. Analysis 66

D. Ground 6(b): Whether There Was Sufficient Evidence to Support Petitioner's Conviction for Resisting an Officer with Threats, Force, or Violence under California Penal Code Section 69 71

1. Relevant Trial Court Proceedings 71

2. Ruling of the California Court of Appeal 72

3. Legal Standard 76

4. Analysis 77

E. Ground 11: Whether Petitioner Was Improperly Denied His Right to Be

Present During Sentencing 81

1. Relevant Trial Court Proceedings 81

2. Ruling of the California Court of Appeal 83

3. Legal Standard 86

4. Analysis 87

VI. CLAIMS RAISED IN PRO SE STATE HABEAS PETITIONS 90

A. Claims Raised in Pro Se Habeas Petitions and Relevant State Court Decisions 90

B. Ground 4(e): IAC Based on Failure to Request Jury Instruction on Attempted Criminal Threats 92

1. Legal Standard 92

2. Relevant Trial Court Proceedings 94

3. Denial of this Claim by the California Courts 95

4. Analysis 96

C. Whether Grounds 5, 10, and 12 are Procedurally Defaulted 98

D. Ground 5: Trial Court's Failure to Sua Sponte Instruct the Jury on Attempted Criminal Threats 100

E. Ground 10: Whether Petitioner's Strike Enhancements Violate the Ex Post Facto Clause 101

F. Ground 12: Denial of Right to Testify Based on Pressure from Defense Counsel and the Court 102

1. Relevant Trial Court Proceedings 102

2. Analysis 104

VII. CLAIMS RAISED IN FIRST COUNSELED EXHAUSTION PETITION 105

A. Claims Raised in First Exhaustion Petition and Ruling of the California Supreme Court 105

B. Ground 6(a): Sufficiency of the Evidence to Support Conviction of Criminal Threats under California Penal Code Section 422 106

C. Ground 7: IAC of Appellate Counsel 109

D. Ground 8: Whether Petitioner was Prejudiced by the Cumulative Effect of the Errors Described in the SAP 110

E. Ground 9: Whether Petitioner's Sentence of 13 Years and 8 Months was Grossly Disproportionate to His Crimes Under the Eighth and Fourteenth Amendments 110

1. Legal Standard 110

2. Analysis 111

VIII. CLAIMS RAISED IN SECOND COUNSELED EXHAUSTION PETITION 112

A. Claims Raised in the Second Exhaustion Petition and Ruling of the California Supreme Court 112

B. Whether Grounds 4(b)-(d) and (f)-(h) are Procedurally Defaulted 113

1. Legal Standard 113

2. Analysis 115

C. Grounds 4(b)-(d) and (f)-(h): Whether Petitioner's Trial Counsel was Ineffective 117

IX. RECOMMENDATION 120

I.INTRODUCTION

Eric Mark Robinson ("Petitioner") is a California state prisoner who was sentenced to 13 years and 8 months after a jury convicted him of three felonies: one count of making criminal threats under California Penal Code section 422 and two counts of resisting an executive officer by means of threats, violence, or force under section 69.¹ He initiated these federal habeas proceedings under 28 U.S.C. § 2254 in February 2013. (Dkt. 1.) He was appointed habeas counsel (Dkt. 4) and later filed the operative Second Amended Petition ("SAP"). (Dkt. 144.) Respondent answered the SAP and lodged relevant documents from the state court proceedings. (Dkt. 197, 198.) Petitioner filed a reply. (Dkt. 219.)

An initial R&R was issued recommending that habeas relief be denied. (Dkt. 228.) This Amended R&R addresses objections filed by Petitioner's counsel (Dkt. 239 ["Counseled Objs."]) and Petitioner himself (Dkt. 241 ["Pro Se Objs."]). The counseled objections focus on the claims related to Petitioner's alleged incompetency to stand trial and represent himself prior to trial, i.e., Grounds 1, 2, 3 and 4(b)-(d).

II.FACTUAL BACKGROUND

The following facts are taken from the unpublished California Court of Appeal decision on Petitioner's direct appeal. (Lodged Document ["LD"] 9, Dkt. 198-15.). Unless rebutted by clear and convincing evidence, these facts may be presumed correct. 28 U.S.C. § 2254(e)(1); Tilcock v. Budge, 538 F.3d 1138, 1141 (9th Cir. 2008).

On January 22, 2009, [Petitioner] and his older brother Craig had one of their frequent arguments after consuming alcohol. [Petitioner] said that he wasgoing to get a gun or a bullet and shoot Craig and the "old lady," referring to Helen Robinson, their 89-year-old mother, in whose home they both lived. [Petitioner] then threw milk or water in Craig's face, and Craig walked out of the house to call the police. Craig believed that [Petitioner] was capable of shooting him because [Petitioner] had threatened to shoot Craig in the past; had hit Craig and others; and had fatally shot another brother in 1992.

After learning from Craig about the threat, the presence of a shotgun, a BB gun, and Mrs. Robinson in the house, the responding officers observed [Petitioner] in the driveway. When the officers asked to speak to him, [Petitioner] belligerently said "no," went into the house, and locked the door. Additional officers and a SWAT unit arrived soon after they were summoned. [Petitioner] refused several demands to come out with his hands raised and instead yelled profanities and said he did not trust the police department.

While inside [Petitioner] called the United States Marshal's office at the federal courthouse and spoke to Special Deputy Marshal George Gammon, the court security officer. [Petitioner] told Deputy Gammon that he would not surrender to the police and that the front door was barricaded. [Petitioner] said, "Fuck the LAPD. I'm going to hang them by their balls." [Petitioner] refused to allow his mother to leave the house, but did allow Deputy Gammon to speak to her by telephone. Deputy Gammon asked about weapons, and she told him there was a rifle under the bed. Eventually, [Petitioner] moved the chair so that his mother could leave, but he remained in the house.

[Petitioner] remained barricaded in the house for approximately 90 minutes as SWAT and other officers waited outside. Sometime after Mrs. Robinson was allowed to leave the house [Petitioner] emerged from the back door. SWAT supervisor Sergeant James Bilodeau, and SWAT officers Nelson Fong, Mark Richardson, and Rick Anzaldo all testified about the ensuing events. Officer Fong had told [Petitioner], "Stop. Get down on the ground," and "LosAngeles Police. Get down on the ground." [Petitioner] did not comply. [Petitioner] seemed agitated and angry, and aggressively lurched toward the officers with clenched fists, despite their continued commands to stop and get down on the ground.

As [Petitioner] advanced toward them, Officer Anzaldo warned [Petitioner] that if he took another step forward he would get "zapped," and may be hurt. [Petitioner] continued forward, and Officer Anzaldo discharged a taser from about 12 feet away. Although darts hit [Petitioner], they were ineffective. Nevertheless Officers Fong and Richardson then reached for [Petitioner's] arms, each grabbing one side as one said, "Put your hands behind your back." [Petitioner] tried to get away from them by flailing his arms and thrashing about. The officers used their body weight to force [Petitioner] to the ground where he continued to resist. Sergeant Bilodeau defined "thrashing" as moving the entire upper body in an aggressive way side to side with the back straight in an apparent attempt to pull away. [Petitioner] continued to thrash about while Officers Fong and Richardson struggled to gain control so they could handcuff him. When he was not flailing his arms, [Petitioner] tensed them against his side, using his strength to keep the officers from pulling them behind his back.

[Petitioner] became more agitated and aggressive and would not comply with commands. The taser was again activated. Although the darts were effective this time, [Petitioner] did not go completely limp. Sergeant Bilodeau had to assist as Officers Fong and Richardson struggled to pull [Petitioner's] thrashing arms behind him. [Petitioner] finally relaxed and Sergeant Bilodeau was able to handcuff him.

On cross-examination defense counsel elicited from the officers that [Petitioner] did not spit, kick, punch, bite, strike, or claw at them during the struggle. Officer Anzaldo testified however, that he interpreted [Petitioner's] behavior as an attempt to harm the officers.

Craig's unloaded shotgun and ammunition were later removed from his bedroom closet. The bedroom and closet doors were unlocked and open. The shotgun was tested and found to be operational. The police also recovered a BB gun, a crossbow, and BB pellets.

[Petitioner] presented no evidence.

(LD 9, Dkt. 198-15 at 5-7.)² See People v. Robinson, No. B220185, 2011 Cal. App. Unpub. LEXIS 9254 at *7-10, 2011 WL 6004364, at *3-4 (Cal. App. Dec. 1, 2011).

III.PROCEDURAL HISTORY

A. Conviction and Sentencing.

The procedural history of the trial court proceedings was accurately summarized by the California Court of Appeal as follows:

[Petitioner] was charged in count 1 with making felony criminal threats to his brother Craig Robinson (Craig), in violation...