Shepard v. Chavez

• Decision Date: 12 September 2012
• Docket Number: No. 2:10-cv-3249 EFB P,2:10-cv-3249 EFB P
• Court: U.S. District Court — Eastern District of California
• Parties: JOE EARL SHEPARD, Petitioner, v. F. X. CHAVEZ, Respondent.

JOE EARL SHEPARD, Petitioner,

v.F. X. CHAVEZ, Respondent.

No. 2:10-cv-3249 EFB P

UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF CALIFORNIA

DATED: September 12, 2012

ORDER

Petitioner is a state prisoner without counsel seeking an application for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. The parties in this action have consented to proceed before a United States Magistrate Judge pursuant to 28 U.S.C. § 636(c). Petitioner challenges a 2004 judgment of conviction entered against him in the Tehama County Superior Court on charges of committing a lewd and lascivious act upon a child under the age of 14 years and continuous sexual abuse of a minor. He seeks relief on the grounds that: (1) the trial court violated his federal constitutional rights by denying his motions for substitute counsel; (2) his trial and appellate counsel rendered ineffective assistance; and (3) his sentence is unconstitutional. Upon careful consideration of the record and the applicable law, petitioner's application for habeas corpus relief must be denied.

I. Procedural and Factual Background¹

A jury convicted defendant Joseph Earl Shepard of committing sexual offenses against V. and B., two girls under 14 years of age. On appeal, defendant argues the court abused its discretion by denying his motions to continue and to substitute retained counsel for his appointed counsel. We will affirm the judgment.

FACTUAL AND PROCEDURAL BACKGROUND

Facts Related to the Offenses

Count I

Count I arose from an incident that occurred on September 29, 2001, at the Red Bluff residence of defendant's mother-in-law, who shared her home with defendant and his wife. After an evening of bowling, defendant was left to babysit his son and daughter and the two daughters of his wife's friend, while his wife and her friend went out for drinks.

Defendant directed his children to put on their pajamas and go to bed. Defendant invited the younger of the other two girls, six-year-old V., to join him on the sofa, and sent her older sister to his bedroom. Defendant laid sideways on the sofa and positioned V. in front of him. As V. pretended to sleep, defendant put his hand underneath her shorts, "squeezed [her] bottom," and "humped" her by repeatedly moving his pelvis against her buttocks. Defendant stopped when V. pretended to wake up. Defendant permitted V. to join her sister in defendant's bedroom, where she began crying. V.'s 10-year-old sister corroborated V.'s account in part, testifying that V. did not go to sleep upon entering the bedroom, but stared out of the window and cried.

In defense of this charge, defense counsel was able to adduce evidence that V. may have waited up to 30 months before reporting the incident to her mother; V. continued to visit B. after the incident, even though defendant was present; and there were factual discrepancies between the accounts V. and her sister gave an investigating detective. In addition, defendant testified that he had sexual intercourse with V.'s mother on several occasions; V.'s mother and his then-wife had a "relationship," and frequently went drinking and dancing together.

Defendant was convicted of one count of committing a lewd and lascivious act upon a child under the age of 14 years. (Pen.Code, § 288, subd. (a).)²

Count II

Defendant also sexually molested B., a young girl who occasionally stayed at his mother-in-law's residence. B., who was nine years old at the time of trial, testified that defendant had sexual intercourse with her on multiple occasions when she was five, six, and seven years old. All but one of the sexual assaults followed the same pattern. With B. lying on her back in bed, defendant would lower her panties, pull his erect penis through the hole in his boxer underwear, insert it into her vagina, move up and down, and ejaculate. B. testified defendant's penis went about "halfway" into her vagina, to a depth of about two inches. Defendant told B.: "This is our little secret."

The one atypical incident occurred while defendant was giving B. a ride in his car, and B.'s brother was asleep in the backseat. Defendant pulled his erect penis from his pants, put B.'s hand on it, and made her stroke it.

Sandra Relyea, a pediatric physician assistant, examined B. in May 2003. Relyea testified that B.'s hymen was "nearly absent," a condition that was consistent with repeated internal vaginal trauma, as would occur as a result of multiple acts of sexual intercourse. Relyea noted that she observed no external vaginal injuries, but she did not deem this significant, since external vaginal injuries heal rapidly, the sexual assaults occurred long before the examination, and an adult penis could have penetrated B.'s vagina without causing any exterior damage.

In defense of count II, defense counsel elicited testimony that B. was "not afraid" to return to the residence when defendant was present after the molestations commenced; defendant's mother-in-law noticed nothing unusual when she bathed B., and B. never complained to her; B. did not tell her mother about the molestations until her mother asked if defendant had "ever done anything bad"; B.'s mother questioned B. only after she was informed of the alleged molestation of V.; and defendant reported that B.'s mother had committed welfare fraud, which led to a misdemeanor conviction.

The jury convicted defendant of continuous sexual abuse of a minor. (§ 288.5.)³

Resp.'s Lodg. Doc. 4 (hereinafter Opinion) at 1-4.⁴

Before the California Court of Appeal issued its decision on petitioner's direct appeal, petitioner filed two collateral challenges to his judgment of conviction. Specifically, on June 6, 2006, petitioner, proceeding through counsel, filed a petition for writ of habeas corpus in the Tehama County Superior Court, claiming that his trial counsel rendered ineffective assistance in failing to call an expert witness (Dr. Kessler) at his trial and failing to investigate key defense witnesses. Resp.'s Lodg. Doc. 6. That petition was denied on October 23, 2006. Resp.'s Lodg. Doc. 7. In its order denying habeas relief, the Superior Court discussed petitioner's claims on the merits and indicated that petitioner had not met his burden of demonstrating ineffective assistance of counsel. Id. at 2. However, the court stated that because the matter was currently on appeal and the Superior Court was not in possession of the state court record, it would be "inappropriate" to issue a writ of habeas corpus at that time. Id. at 2.

On February 6, 2007, petitioner, still proceeding through counsel, filed a petition for writ of habeas corpus in the California Court of Appeal, raising the same claims of ineffective assistance of trial counsel that he raised in his habeas petition filed in the Superior Court. Resp.'s Lodg. Doc. 8. On March 1, 2007, that petition was summarily denied. Resp.'s Lodg. Doc. 9.

On March 9, 2007, the California Court of Appeal denied petitioner's direct appeal and affirmed his judgment of conviction. Petitioner did not file a petition for review.

Petitioner subsequently filed two more collateral challenges to his conviction. On June 25, 2009, more than two years after his conviction was upheld by the California Court of Appeal, petitioner, now proceeding without counsel, filed a petition for writ of habeas corpus in the California Supreme Court. Resp.'s Lodg. Doc. 10. Therein, petitioner explained that his appellate counsel failed to file a petition for review in the California Supreme Court despite having promised to do so, and requested that the court reopen his appeal so that he could continue the appellate process. Id. On November 10, 2009, that petition was summarily denied. Resp.'s Lodg. Doc. 11. On April 1, 2010, petitioner, still proceeding without counsel, filed another petition for writ of habeas corpus in the California Supreme Court. Resp.'s Lodg. Doc. 12. Therein, he claimed that his trial and appellate counsel rendered ineffective assistance, that the trial court erred in denying his motions for substitute counsel, and that his sentence was illegal. Id. The Supreme Court denied that petition by order dated October 27, 2010, citing In re Robbins, 18 Cal.4th 770, 780 (1998) and In re Clark, 5 Cal.4th 750 (1993). Resp.'s Lodg. Doc. 13.

II. Analysis

A. Standards for a Writ of Habeas Corpus

An application for a writ of habeas corpus by a person in custody under a judgment of a state court can be granted only for violations of the Constitution or laws of the United States. 28 U.S.C. § 2254(a). A federal writ is not available for alleged error in the interpretation or application of state law. See Wilson v. Corcoran, 562 U.S. ___, ___, 131 S. Ct. 13, 16 (2010); Estelle v. McGuire, 502 U.S. 62, 67-68 (1991); Park v. California, 202 F.3d 1146, 1149 (9th Cir. 2000).

Title 28 U.S.C. § 2254(d) sets forth the following standards for granting federal habeas corpus relief:

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.

For purposes of applying § 2254(d)(1), "clearly established federal law" consists of holdings of the United States Supreme Court at the time of the state court decision. Stanley v. Cullen, 633 F.3d 852, 859 (9th Cir. 2011) (citing Williams v. Taylor, 529 U.S. 362, 405-06 (2000)). Nonetheless, "circuit court precedent may be persuasive in determining what law is clearly established and whether a state court applied that law unreasonably." Stanley, 633 F.3d at 859 (quoting Maxwell v. Roe, 606...