Spencer v. Yates
Decision Date | 26 May 2011 |
Docket Number | 2: 09-cv-3388-LKK TJB |
Court | U.S. District Court — Eastern District of California |
Parties | EMERY DENNIS SPENCER, Petitioner, v. JAMES YATES, Respondent. |
Petitioner, Emery Dennis Spencer, is a state prisoner proceeding with a pro se petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254. Petitioner is currently serving a maximum sentence of approximately fifty-four years in prison after a jury convicted him of multiple counts of California Penal Code sections 288 ( ), possession of child pornography, and several related offenses. Petitioner raises seven claims in this federal habeas petition; specifically: (1) his convictions for lewd and lascivious acts upon a minor by use of force were based on insufficient evidence ("Claim I"); (2) the trial court impermissibly admitted testimony regarding a threat Petitioner made to "kill everybody involved in this thing" after the preliminary hearing("Claim II"); (3) his right to confront the witnesses against him was violated when the victim covered a portion of her face during her testimony ("Claim III"); (4) the trial court erred in sentencing pursuant to California Penal Code section 667.6 ("Claim IV"); (5)the trial court erred in imposing consecutive sentencing on all counts ("Claim V"); (6) Petitioner's counsel was ineffective to the extent counsel failed to preserve sentencing issues for appeal ("Claim VI"); and, (7) Petitioner's counsel was ineffective due to counsel's decision not to present a defense to the prosecution's case ("Claim VII").1 For the reasons stated herein, the federal habeas petition should be denied.
In 2004, Petitioner was convicted on various sexual offenses against his preteen neighbor, and of possession of child pornography. The specific facts giving rise to each of Petitioner's claims in the instant federal habeas petition are set out more fully below in the discussion of each claim. Suffice it to say, Petitioner's constitutional claims center around three distinct portions of Petitioner's trial. First, as Petitioner was being led out of the courtroom after his preliminary hearing he made a statement that he would "kill everybody involved in this thing." A bailiff heard Petitioner's declaration and the trial judge permitted the bailiff to testify regarding the statement at trial. Second, Petitioner finds constitutional error with regard to the victim's testimony: Petitioner contends that the victim's testimony regarding the explicit details of their sexual encounters did not produce sufficient evidence to support some of his convictions and that the trial judge's decision to allow her, twelve-years-old at the time of trial, to testify with her hand partly covering her face for a ten to fifteen minute portion of her lengthy testimony, so that she would not have to look at Petitioner, violated Petitioner's right to confront the witnesses against him. Lastly, at the close of the prosecution's case, the defense also rested without calling any witnesses or submitting any evidence into the record.
An application for writ of habeas corpus by a person in custody under judgment of a state court can only be granted for violations of the Constitution or laws of the United States. See 28 U.S.C. § 2254(a); see also Peltier v. Wright, 15 F.3d 860, 861 (9th Cir. 1993); Middleton v. Cupp, 768 F.2d 1083, 1085 (9th Cir. 1985) (citing Engle v. Isaac, 456 U.S. 107, 119 (1982)). Petitioner filed this petition for writ of habeas corpus after April 24, 1996, thus the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA") applies. See Lindh v. Murphy, 521 U.S. 320, 326 (1997). Under AEDPA, federal habeas corpus relief is not available for any claim decided on the merits in the state court proceedings unless the state court's 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 state court. See 28 U.S.C. 2254(d); Perry v. Johnson, 532 U.S. 782, 79293 (2001); Williams v. Taylor, 529 U.S. 362, 402-03 (2000).
In applying AEDPA's standards, the federal court must "identify the state court decision that is appropriate for our review." Barker v. Fleming, 423 F.3d 1085, 1091 (9th Cir. 2005). "The relevant state court determination for purposes of AEDPA review is the last reasoned state court decision." Delgadillo v. Woodford, 527 F.3d 919, 925 (9th Cir. 2008) (citations omitted). "Where there has been one reasoned state judgment rejecting a federal claim, later unexplained orders upholding that judgment or rejecting same claim rest upon the same ground." Ylst v. Nunnemaker, 501 U.S. 797, 803 (1991). To the extent no such reasoned opinion exists, courts must conduct an independent review of the record to determine whether the state court clearly erred in its application of controlling federal law, and whether the state court's decision was objectively unreasonable. Delgado v. Lewis, 223 F.3d 976, 981-82 (9th Cir. 2000). "The question under AEDPA is not whether a federal court believes the state court's determinationwas incorrect but whether that determination was unreasonable—a substantially higher threshold." Schriro v. Landrigan, 550 U.S. 465, 473 (2007) (citing Williams, 529 U.S. at 410). "When it is clear, however, that the state court has not decided an issue, we review that question de novo." Reynoso v.Giurbino, 462 F.3d 1099, 1109 (9th Cir. 2006) (citing Rompilla v. Beard, 545 U.S. 374, 377 (2005).
In Claim I, Petitioner argues that there was insufficient evidence to support a guilty finding with respect to the charge of lewd and lascivious acts upon a minor by use of force (also referred to as "forcible child molestation"). Specifically, Petitioner contends that there is insufficient evidence of force or duress as required by California Penal Code section 289(b)(1).
The Due Process Clause of the Fourteenth Amendment "protects the accused against conviction except upon proof beyond a reasonable doubt of every fact necessary to constitute the crime for with which he is charged." In re Winship, 397 U.S. 358, 364 (1970). There is sufficient evidence to support a conviction, if "after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt." Jackson v. Virginia, 443 U.S. 307, 319 (1979). "[T]he dispositive question under Jackson is 'whether the record evidence could reasonably support a finding of guilt beyond a reasonable doubt.'" Chein v. Shumsky, 373 F.3d 978, 982 (9th Cir. 2004) (quoting Jackson, 443 U.S. at 318). A petitioner for writ of habeas corpus "faces a heavy burden when challenging the sufficiency of the evidence used to obtain a state conviction on federal due process grounds." Juan H. v. Allen, 408 F.3d 1262, 1274 (9th Cir. 2005).
A federal habeas court determines the sufficiency of the evidence in reference to the substantive elements of the criminal offense as defined by state law. See Jackson, 443 U.S. at 324 n. 16. California law defines lewd and lascivious acts upon a minor as follows:
Cal. Penal Code § 288. The California Court of Appeal stated the following in analyzing this Claim on the merits:
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