Scott v. Scribner, No. 2:10-cv-01220-JKS

• Decision Date: 01 March 2012
• Docket Number: No. 2:10-cv-01220-JKS
• Parties: TIANTE DION SCOTT, Petitioner, v. L. E. SCRIBNER, Warden, Calipatria State Prison, Respondent.
• Court: U.S. District Court — Eastern District of California

TIANTE DION SCOTT, Petitioner, v. L. E. SCRIBNER, Warden, Calipatria State Prison, Respondent.

No. 2:10-cv-01220-JKS

UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF CALIFORNIA

Dated: March 1, 2012

MEMORANDUM DECISION

Tiante Dion Scott, a state prisoner appearing pro se, filed a Petition for Habeas Corpus under 28 U.S.C. § 2254. Scott is currently in the custody of the California Department of Corrections, incarcerated at the Calipatria State Prison. Respondent has answered, and Scott has replied. Scott has also requested an evidentiary hearing.

I. BACKGROUND/PRIOR PROCEEDINGS

Following a jury trial in the Sacramento County Superior Court, Scott was convicted in December 2006 of four counts of Robbery in the First Degree in concert, Cal. Penal Code §§ 211, 213(a)(1)(A), sustained allegations of personal use of a firearm, Cal. Penal Code § 12022.53(b), and was also convicted of one count of being a Felon in Possession of a Firearm, Cal. Penal Code § 12021(a)(1). Scott also admitted a prior prison term, Cal. Penal Code § 667.5(b). The trial court sentenced Scott to an aggregate prison term of thirty-six years. The California Court of Appeal, Third Appellate District, affirmed Scott's conviction and sentence in an unpublished decision,¹ and the California Supreme Court summarily denied review withoutopinion or citation to authority on September 24, 2008. On April 10, 2009, Scott filed a petition for habeas relief in the Sacramento County Superior Court ("Superior Court"), which was denied in an unreported, reasoned decision.² The California Court of Appeal summarily denied Scott's subsequent petition for habeas relief without opinion or citation to authority, and the California Supreme Court summarily denied Scott's petition for habeas relief on January 21, 2010. Scott timely filed his Petition for relief in this Court on May 10, 2010.

The facts underlying Scott's conviction as summarized by the California Court of Appeal:

On April 24, 2006, Canh Van Le, age 78; his 72-year-old wife Nhan Dang; their 32-year-old son Huyen Le; and their 20-year-old granddaughter (Huyen's niece) Truc Anh Le lived together in a South Sacramento residence. The doorbell rang after 1:00 p.m. and Nhan answered to find a young Black man asking her questions. She did not speak English, so Nhan asked her granddaughter Truc for help.

Truc, who understood only a little English, went upstairs to get her English-speaking Uncle Huyen, but noticed she was being followed by a man with a gun. Two Black men and one Hispanic man had pushed the door open and entered the house. The victims described one of the Black robbers as short and thin while the other as big and tall. In a field identification, Truc and Huyen identified Scott as the large Black robber and Heng as the Hispanic robber. Morris is five feet five inches tall and weighed 132 pounds while Scott is five feet 10 inches tall and weighed 235 pounds. While neither Truc nor Huyen could identify Morris in a field identification, at trial all four of the victims identified the defendants as the robbers.

Truc knocked on the door of Huyen's upstairs bedroom and told him robbers were in the house. Huyen opened the door to let her enter and call 911. He closed the door, but Morris and Scott broke the door down and entered the room. Scott and Morris, both armed, told Truc to put the phone down. Scott eventually left the room to check the rest of the upstairs.

Morris remained in the room and pointed a gun at Huyen's head. Canh entered and threw himself on Huyen to keep his son from being shot. Huyen, Canh, and Truc were taken downstairs to join Nhan.

All four victims were tied up and made to lie face down next to each other. Heng took a pistol from Morris and questioned Huyen about whether there was any money in the house. When Huyen replied they had no money Heng said, "You Asian punk, you know we hear—somebody told us you have the money. That's why—whatwe come here for. And if you don't tell me the money, I'm gonna kill your dad, your mom and I gonna rape your niece. Is that what you want?" (Sic.)

Huyen pleaded with Heng. Heng asked Huyen who owned the car parked in front of the house. Huyen lied, telling Heng it was his brother's car, and that he had no wallet, having left it in his car. Heng hit Huyen in the head three times with the gun, asking him where the money was between strikes. Heng then did the same to Huyen's elderly parents, repeatedly striking them in the head with his gun, each time asking Huyen to look at the firearm before he struck them.

Heng told Huyen he was going to rape Truc "right now" and took off his shirt. He chambered a bullet from the magazine by pulling the slide back, put the gun to Truc's head, telling her, "Do you feel it?" and then slowly moved the weapon down her back and to her buttocks.

Fortunately, the robbers had left their stolen SUV running in front of the house. Sacramento police officers were dispatched to the home to investigate the suspicious vehicle. Before Heng could do anything more to Truc, one of the other robbers exclaimed from upstairs, "Hey, there are cops outside. There are police outside," which caused all of the robbers to run out of the house.

Heng was apprehended by the police officers as he tried to leave through the back door. Morris and Scott fled by jumping to the roof of the house next door before going back to the ground, where they were chased by the police on foot and separately caught.

The robbers took credit cards and $1,500 in cash belonging to Canh and Nhan. Canh kept these in a suitcase reserved for special documents hidden in his bedroom closet. The money was for the rent on the family's house.

Officers found a nine-millimeter Beretta semiautomatic handgun and a BB gun at the residence. Cash in the amount of $950 was found on Scott. The stolen credit cards were found on Morris. The money was folded in $100 increments, just as Canh does.³

II. GROUNDS RAISED/DEFENSES

In his Petition, Scott raises eleven enumerated grounds: (1) a violation of his right against self-incrimination under the Fifth Amendment; (2) a denial of transcripts in violation of his right to present a defense; (3) insufficiency of the evidence to support the personal use of a firearm allegation, Cal. Penal Code § 12022.53(b); (4) prosecutorial misconduct and overreaching; (5) insufficiency of the evidence to convict Scott on two of the robbery counts; (6) application ofPenal Code §§ 654 and 664 violated the Due Process and Equal Protection Clauses; (7) ineffective assistance of trial counsel; (8) the pretrial and trial judges collectively abridged Scott's rights under the Fifth, Sixth, and Fourteenth Amendments; (9) the imposition of restitution was established without a hearing; (10) ineffective assistance of appellate counsel; and (11) the failure to sever his trial from that of his co-defendants denied Scott his rights under the Fifth and Fourteenth Amendments. Respondent contends that Scott's first, third, fourth, sixth, seventh, eighth, ninth, tenth, and eleventh grounds are all procedurally barred. Respondent does not assert any other affirmative defense.⁴

III. STANDARD OF REVIEW

Under the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"), 28 U.S.C. § 2254(d), this Court cannot grant relief unless the decision of the state court was "contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States" at the time the state court renders its decision or "was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding."⁵ The Supreme Court has explained that "clearly established Federal law" in § 2254(d)(1) "refers to the holdings, as opposed to the dicta, of [the Supreme Court] as of the time of the relevant state-court decision."⁶ The holding must also be intended to be binding upon the states; that is, the decision must be based upon constitutional grounds, not on the supervisorypower of the Supreme Court over federal courts.⁷ Thus, where holdings of the Supreme Court regarding the issue presented on habeas review are lacking, "it cannot be said that the state court 'unreasonabl[y] appli[ed] clearly established Federal law.'"⁸ When a claim falls under the "unreasonable application" prong, a state court's application of Supreme Court precedent must be "objectively unreasonable," not just "incorrect or erroneous."⁹ The Supreme Court has made clear that the objectively unreasonable standard is "a substantially higher threshold" than simply believing that the state-court determination was incorrect.¹⁰ "[A]bsent a specific constitutional violation, federal habeas corpus review of trial error is limited to whether the error 'so infected the trial with unfairness as to make the resulting conviction a denial of due process.'"¹¹ In a federal habeas proceeding, the standard under which this Court must assess the prejudicial impact of constitutional error in a state court criminal trial is whether the error had a substantial and injurious effect or influence in determining the outcome.¹² Because state court judgments ofconviction and sentence carry a presumption of finality and legality, the petitioner has the burden of showing by a preponderance of the evidence that he or she merits habeas relief.¹³

The Supreme Court recently underscored the magnitude of the deference required:

As amended by AEDPA, § 2254(d) stops short of imposing a complete bar on federal court relitigation of claims already rejected in state proceedings. Cf. Felker v. Turpin, 518 U.S. 651, 664, 116 S.Ct. 2333, 135 L.Ed.2d 827 (1996) (discussing AEDPA's "modified res judicata rule" under § 2244). It preserves authority to issue the writ in cases where there is no possibility fairminded jurists could disagree that the state court's decision conflicts with this Court's precedents. It goes no farther. Section 2254(d) reflects the view that habeas corpus

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