SPENCE v. YATES

Decision Date28 March 2011
Docket NumberNo. 1:08-cv—00045-AWI-SKO-HC,1:08-cv—00045-AWI-SKO-HC
CourtU.S. District Court — Eastern District of California
PartiesEDDIE C. SPENCE, Petitioner, v. JAMES A. YATES, Respondent.

OPINION TEXT STARTS HERE

ORDER DIRECTING THE CLERK TO SUBSTITUTE JAMES A YATES, WARDEN, AS RESPONDENT

FINDINGS AND RECOMMENDATIONS TO DENY PETITIONER'S REQUEST FOR JUDICIAL NOTICE AND THE INTRODUCTION OF EXCULPATORY EVIDENCE (DOC. 4 9)

FINDINGS AND RECOMMENDATIONS TO DENY THE PETITION FOR WRIT OF HABEAS CORPUS (DOC. 7) AND TO DECLINE TO ISSUE A CERTIFICATE OF APPEALABILITY

OBJECTIONS DEADLINE: THIRTY (30) DAYS

Petitioner is a state prisoner proceeding pro se and in forma pauperis with a petition pursuant to 28 U.S.C. § 2254. The matter has been referred to the Magistrate Judge pursuant to 28 U.S.C. § 636(b)(1) and Local Rules 302 and 303. Pending before the Court is the petition, which was filed on January 2, 2008.

Also pending before the Court is Petitioner's request for judicial notice and the introduction of exculpatory evidence,filed in this Court on August 25, 2010.

I. Background

In case number VCF114930, Petitioner was convicted on December 15, 2004, in the Tulare County Superior Court of making criminal threats (count 1) in violation of Cal. Pen. Code § 422 and of assault (count 2) in violation of Cal. Pen. Code § 240. (2 CT 413-14.) He was sentenced to thirty-one (31) years to life pursuant to California's "Three Strikes" law, Cal. Pen. Code § 667(a)(i). (Ans. 6:6-7.)

Petitioner filed his petition in this Court on January 2, 2008. By order of the Court dated June 2, 2008, four of the claims stated in the petition were stricken, and Respondent was directed to file a response to the first five claims. Respondent's motion to dismiss the claims for failure to exhaust state remedies was denied on September 21, 2009.

The case thus proceeds on the following grounds for relief: 1) Petitioner's conviction for criminal threats must be reversed because there was insufficient evidence the victim experienced sustained fear (Lodged Doc. 4 at 6-10); 2) Petitioner's conviction for criminal threats must be reversed because there was insufficient evidence the threat was unconditional under the circumstances; 3) trial counsel was ineffective for not presenting evidence of Petitioner's mental disorder; 4) the trial court erred in denying Petitioner's motion to dismiss on the grounds that his speedy trial rights had been violated; and 5) Petitioner's five-year enhancement under Cal. Pen. Code § 667(a)(1) must be dismissed due to prosecutorial vindictiveness.

On December 7, 2009, Respondent filed an answer to the petition contending that although the petition was timely filed and the claims (with the exception of the speedy trial claim) were fairly presented to the California Supreme Court, the state court's rejections of Petitioner's claims were objectively reasonable, and the petition should be denied. (Ans., doc. 40, 7:7-15.) The crimes involved Petitioner's threatening and assaulting his domestic partner on August 22, 2003, at a time when Petitioner was suffering pain and emotional upset from a back injury. (Ans. 9-14.)

Petitioner filed a traverse on March 1, 2010.

II. Jurisdiction and Substitution of Respondent Yates

Because the petition was filed after April 24, 1996, the effective date of the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA), the AEDPA applies in this proceeding. Lindh v. Murphy, 521 U.S. 320, 327 (1997), cert. denied, 522 U.S. 1008 (1997); Furman v. Wood, 190 F.3d 1002, 1004 (9th Cir. 1999).

A district court may entertain a petition for a writ of habeas corpus by a person in custody pursuant to the judgment of a state court only on the ground that the custody is in violation of the Constitution, laws, or treaties of the United States. 28 U.S.C. §§ 2254(a), 2241(c)(3); Williams v. Taylor, 529 U.S. 362, 375 n.7 (2000); Wilson v. Corcoran, 562 U.S. -, -, 131 S.Ct. 13, 16 (2010) (per curiam).

Petitioner claims that in the course of the proceedings resulting in his conviction, he suffered violations of his Fifth, Sixth, and Fourteenth Amendment rights. Thus, violations of the Constitution are alleged. Further, the conviction challengedarises out of the Tulare County Superior Court (TCSC), which is located within the jurisdiction of this Court. 28 U.S.C. §§ 2254(a), 2241(a), (d).

A petition for writ of habeas corpus shall allege the name of the person who has custody over the applicant. 28 U.S.C. § 2242; Rule 2(a) of the Rules Governing Section 2254 Cases in the District Courts (Habeas Rules). The respondent must have the power or authority to provide the relief to which a petitioner is entitled. Smith v. Idaho, 392 F.3d 350, 355 n. 3 (9th Cir. 2004).

Further, Rule 25(d) provides that a court may at any time order substitution of a public officer who is a party in an official capacity whose predecessor dies, resigns, or otherwise ceases to hold office.

With respect to jurisdiction over the Respondent, Petitioner named as Respondent T. Felker, Warden. At the time the petition was filed, Petitioner was a resident of High Desert State Prison. (Pet. 1.) However, in September 2009, Petitioner's address changed to the Pleasant Valley State Prison (PVSP) in Coalinga, California, an institution within the boundaries of the district of this Court. Respondent answered the petition thereafter without contesting the jurisdiction of the Court over Respondent. Reference to the official website of the California Department of Corrections and Rehabilitation (CDCR) reflects that James A. Yates is the Warden of PVSP.1 The Court concludes thatRespondent has waived any objection to the Court's jurisdiction over the Respondent. The Court further concludes that James A. Yates, Warden of PVSP, is an appropriate respondent in this action, and that pursuant to Fed. R. Civ. P. 25(d), he should be substituted in place of T. Felker, Warden.

Accordingly, the Clerk is DIRECTED to substitute James A. Yates, Warden, as Respondent in place of T. Felker, Warden.

III. Standard of Review

Title 28 U.S.C. § 2254 provides:

(d) 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.

(e) (1) In a proceeding instituted by an application for a writ of habeas corpus by a person in custody pursuant to the judgment of a State court, a determination of a factual issue made by a State court shall be presumed to be correct. The applicant shall have the burden of rebutting the presumption or correctness by clear and convincing evidence.

The Petitioner bears the burden of establishing that the decision of the state court was contrary to, or involved unreasonable application of, the precedents of the United States Supreme Court. Lambert v. Blodgett, 393 F.3d 943, 970 n.16 (9th Cir.2004); Baylor v. Estelle, 94 F.3d 1321, 1325 (9th Cir. 1996).

Where the California Supreme Court denies a habeas petition or petition for review without citation or comment, a district court will "look through" the unexplained decision of that state court to the last reasoned decision of a lower court as the relevant state-court determination. Ylst v. Nunnemaker, 501 U.S. 797, 803-04 (1991); Taylor v. Maddox, 366 F.3d 992, 998 n.5 (9th Cir. 2004); Shackleford v. Hubbard, 234 F.3d 1072, 1079 n.2 (9th Cir. 2000).

IV. Facts

On November 15, 2006, in case number S147096, the California Supreme Court denied Petitioner's petition for review of the intermediate state appellate court's decision affirming Petitioner's conviction. The petition was denied without citation or comment. (Lodged Document (LD) 26.) The Court will thus look to the earlier appellate opinion of the California Court of Appeal, Fifth Appellate District (DCA).

Petitioner does not challenge the factual findings of the state court. In his appeal from the judgment, Petitioner raised the two issues concerning the sufficiency of the evidence that he raises in the pending petition. Pursuant to 28 U.S.C. § 2254(e)(1), the statement of facts from the unpublished appellate opinion of the DCA, filed on August 24, 2006, follows:2

In July 2002, S.M. met appellant. S.M. had two young children. Appellant moved in with S.M. and her childrenin September or October 2002, and their daughter was born in May 2003. As of August 2003, the couple and the three children lived in an apartment in Visalia. At that time, appellant and S.M. were having financial problems, they did not have much money, and they were going to have to move out of their apartment. S.M. testified appellant suffered from a bulging disc in his back, which was very hard on him and made him moody and depressed. Appellant was "in pain. A lot of times he would talk about-like, if me and him fussed, then it would aggravate his back more." Appellant's mood changed daily, depending on his medication.

S.M. testified about domestic violence incidents which began after the birth of their daughter, and occurred between May and August 2003. On one occasion, appellant gave her a black eye. On other occasions, appellant grabbed her hair and threatened to force her head into the toilet, and threatened to choke her with a telephone cord. Appellant also grabbed her by the throat and slammed her against the wall. S.M. testified most of these incidents occurred shortly before appellant was arrested in this case. S.M. also testified appellant's threats were just words, and they had a cordless telephone so appellant could not have wrapped a telephone cord around her neck. At trial,...

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