Scott v. Swarthout

• Decision Date: 05 November 2014
• Docket Number: Case No. 1:13-CV-01804-LJO-SMS
• Court: U.S. District Court — Eastern District of California
• Parties: ELMAR K. SCOTT, Petitioner, v. GARY SWARTHOUT, WARDEN, Respondent.

ELMAR K. SCOTT, Petitioner, v. GARY SWARTHOUT, WARDEN, Respondent.

Case No. 1:13-CV-01804-LJO-SMS

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF CALIFORNIA

November 5, 2014

FINDINGS AND RECOMMENDATION OF THE UNITED STATES MAGISTRATE JUDGE

(Doc. 1)

The Court submits these Findings and Recommendation to the Honorable Lawrence J. O'Neill, United States District Judge, pursuant to 28 U.S.C. § 636(b)(1) and Local Rules 302 and 304 of the United States District Court, Eastern District of California. For the reasons set forth below, the Magistrate Judge recommends that the Petition for Writ of Habeas Corpus be denied on the merits without an evidentiary hearing.

SUMMARY OF PROCEEDINGS

Petitioner Elmar K. Scott filed a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254 challenging his Stanislaus County convictions for three counts of robbery (Cal. Pen. Code, § 211)¹ and four counts of assault with a semiautomatic firearm (§ 245, subd. (b)). The jury foundtrue the allegations that Petitioner personally used a firearm in the commission of the robbery (§ 12022.53, subd. (b)), took property in excess of $50,000 (§ 12022.6, subd. (a)(1)), and personally used a firearm in the commission of two of the assault charges (§ 12022.5, subd. (a)).² In a bifurcated proceeding, the trial court found true the allegations that Petitioner had suffered a prior serious felony conviction (§§ 667, subds. (a), (d), 1170.12, subds. (a), (d)). The trial court sentenced Petitioner to a total term of 31 years 4 months in state prison. People v. Bledsaw et al., F060584, 2011 WL 5252630 (Cal. Ct. App. Nov. 4, 2011).

On November 4, 2011, the California Court of Appeal, Fifth District affirmed the judgment. On February 1, 2012, the California Supreme Court denied the petition for review.

On November 20, 2012, Petitioner filed his initial habeas petition for writ of habeas corpus by a person in state custody in which he raised substantively the same grounds as he does in the instant petition. See People v. Scott, Stanislaus Superior Court Case No. 1097055 (April 3, 2013). On April 3, 2013, the Superior Court denied his petition. Id. Petitioner filed a state habeas petition before the California Court of Appeal on May 14, 2013, and the California Supreme Court on July 23, 2013. The court summarily denied these petitions on July 10, 2013 and October 16, 2013, respectively.

In the instant case, Respondent filed an answer on April 18, 2014 (Doc. 21). On May 19, 2014, Petitioner filed a reply (Doc. 23). The matter is now ripe for review. Also before the Court is Petitioner's "Request for Leave of Court to Request Motion for Evidentiary Hearing," filed on November 3, 2014 (Doc. 24).

STATEMENT OF FACTS

Below are the facts set forth in the California Court of Appeal decision on direct review. To the extent an evaluation of Petitioner's claims for relief depends on an examination of the record, the Court has made an independent evaluation of the record specific to Petitioner's claims for relief.³

On August 24, 2005, two men brandishing guns and with bandannas covering their faces ran into the Valley First Credit Union in Turlock and told everyone to get down. One of the men wore a dark hooded sweatshirt with the hood up and a blue bandanna covering his face; the other wore a brown and khaki knit cap and a white bandanna. Branch manager Ted Paollella and employees Carmen Raya, Joanna Risen, and Somer Foster were present at the time.

One of the men motioned for Raya to come towards him. When she did, he grabbed her. The surveillance video taken during the event shows Raya going to the bank's vault room with her hands up.

One of the men grabbed Foster by the shirt and pulled her over to the vault door and had her prop it open. The man then ordered Foster to get down on the ground and she complied. After the men took the money from the vault, Foster overheard them say they wanted the money from the ATM (automated teller machine). The men ordered the employees into the bathroom where they stayed until the robbery was over.

The man who grabbed Raya told Paollella he wanted to go to the vault. When Paollella reached the vault, Raya, Foster and another male were inside on the floor. After Paollella unlocked the cash drawer, he was instructed to lie on the ground. After the men took the money, they asked about the ATM. But before they were able to access the ATM, the men left the bank with approximately $86,000.

Stephanie Maddox was outside the credit union when she noticed a man with a scarf covering his face crouched near the front door. Thinking this was unusual, Maddox followed the man inside. When Maddox entered, a man wearing a scarf covering his face pointed a gun at her head and told her to lie down in front of the safe. She complied.

Troy Webb and Niles Gregory were working in the parking lot next door to the credit union when a coworker ran into the parking lot and told them the credit union was being robbed. Moments later, a man ran into the parking lot, attempted to scale a wall, turned and pointed a semiautomatic or automatic gun at Webb and Gregory and told them to get down on the ground. The man then jumped over the wall. Webb and Gregory looked over the wall and saw two men jump into the trunk of a vehicle, which sped off.

Shortly thereafter, officers apprehended a vehicle and discovered appellants hiding in the trunk with a large amount of cash and two loaded semiautomatic firearms.

People v. Bledsaw et al., F060584, 2011 WL 5252630 (Cal. Ct. App. Nov. 4, 2011).

PETITIONER'S CLAIMS

1. There was insufficient evidence presented at trial to support the firearm enhancement as to counts 6 and 7 (assault charges).

2. The trial court incorrectly instructed the jury under California's natural and probable consequences doctrine.

3. Petitioner received ineffective assistance of counsel at trial.

4. The trial court erred by failing to undertake an independent review of whether Petitioner had been properly advised of his constitutional rights during a previous trial, and that conviction was used in the instant case as a prior conviction for sentencing purposes.

5. The prosecution committed misconduct by failing to disclose to the defense allegedly material evidence.

6. Cumulative error.

STANDARD OF REVIEW

A federal court may not grant a petition for writ of habeas corpus by a person in state custody with respect to any claim that was adjudicated on the merits in state court unless it (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); Harrington v. Richter, --- U.S. ---, ---, 131 S.Ct. 770, 785, 178 L.Ed.2d 624 (2011); Engle v. Isaac, 456 U.S. 107, 119, 102 S.Ct. 1558, 71 L.Ed.2d 783 (1982) (federal courts may intervene in the state judicial process only to correct wrongs of a constitutional dimension).

A state court's decision is "contrary to" clearly established Federal law⁴ "if the State court applies a rule that contradicts the governing law set forth" in the Supreme Court's cases or if the State court confronts a set of facts that are "materially indistinguishable'" from a decision of the Supreme Court and "nevertheless arrives at a result different from that precedent." Lockyer, 538 U.S. at 73 (quoting Williams v. Taylor, 529 U.S. 362, 405-06, 120 S.Ct. 1495, 146 L.Ed.2d 389 (2000)); Early v. Packer, 537 U.S. 3, 8, 123 S.Ct. 362, 154 L.Ed.2d 263 (2002) (per curiam). A state court's decision cannot be contrary to clearly established Federal law if there is a "lack of holdings from" the Supreme Court on a particular issue. Carey v. Musladin, 549 U.S. 70, 77, 127 S.Ct. 649, 166 L.Ed.2d 482 (2006).

"The 'unreasonable application' clause requires the state court decision to be more than incorrect or erroneous." Lockyer, 538 U.S. at 75; Wiggins v. Smith, 539 U.S. 510, 520, 123 S.Ct. 2527, 156 L.Ed.2d 471 (2003) ("In order for a federal court to find a state court's application of [ Supreme Court ] precedent 'unreasonable,' the state court's decision must have been more than incorrect or erroneous."). Federal habeas corpus relief does not lie for mere errors of state law. Estelle v. McGuire, 502 U.S. 62, 67-68, 112 S.Ct. 475, 116 L.Ed.2d 385 (1991). State court decisions must be given the benefit of the doubt. Woodford v. Visciotti, 537 U.S. 19, 24, 123 S.Ct. 357, 154 L.Ed. 2d 279 (2002). Indeed, "[t]he state court's application of clearly established law must be objectively unreasonable." Id.; see also Clark v. Murphy, 331 F.3d 1062, 1068 (9th Cir. 2003).

Under the "unreasonable application prong" of section 2254(d) (1), a federal court may grant habeas relief "based on the application of a governing legal principle to a set of facts different from those of the case in which the principle was announced." Lockyer, 538 U.S. at 76; see also Rompillav. Beard, 545 U.S. 374, 380, 125 S.Ct. 2456, 162 L.Ed.2d 360 (2005) ("An 'unreasonable application' occurs when a state court identifies the correct governing legal principle from this Court's decisions but unreasonably applies that principle to the facts; of petitioner's case." (citation and quotations omitted.) A state court's decision "involves an unreasonable application of ^{reme Court} precedent if the state court either unreasonably extends a legal principle . . . to a new context where it should not apply, or unreasonably refuses to extend that principle to a new context where it should apply." Williams v. Taylor, 529 U.S. 362, 407, 120 S.Ct. 1495, 146 L.Ed.2d 389 (2000).

A state court's determination of a factual issue "shall be presumed to be correct," and petitioner has "the burden of rebutting the presumption of correctness by clear and convincing evidence." 28 U.S.C. § 2254(e)(1); Miller-El v. Cockrell,...