Warren v. Uribe

Decision Date30 May 2013
Docket NumberNo. 2:10-cv-2120 MCE EFB P,2:10-cv-2120 MCE EFB P
PartiesKENNY LYNN WARREN, Petitioner, v. DOMINGO URIBE, JR., Respondent.
CourtU.S. District Court — Eastern District of California
ORDER AND
FINDINGS & RECOMMENDATIONS

Petitioner is a state prisoner without counsel proceeding with an application for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. He challenges a 2006 judgment of conviction entered against him in the Butte County Superior Court on two counts of assault on a peace officer with a semiautomatic weapon while personally discharging a firearm, one count of false imprisonment by violence while personally using a firearm, one count of child endangerment, and one count of possession of a controlled substance. Petitioner seeks relief based on the following claims: (1) the trial court erred in denying his motion to suppress the evidence against him; (2) the prosecutor presented insufficient evidence to support his convictions for assault on a peace officer because he failed to prove the officers were lawfully performing their duties; (3) the trial court violated his Fifth, Sixth, and Fourteenth Amendment rights to jury trial, proof beyond a reasonable doubt, and due process in failing to stay his sentence for false imprisonmentof one of the officers, in light of the fact that he received a sentence for assault of that same officer; (4) the trial court erred in denying his request for a continuance of the sentencing hearing; (5) he received ineffective assistance of trial and appellate counsel; and (6) the prosecutor committed misconduct in introducing testimony that he should have known was false. Upon careful consideration of the record and the applicable law, the undersigned recommends that petitioner's application for habeas corpus relief be denied.

Petitioner has also filed a "motion for interrogatories," a "motion for discovery," a "motion to expand the record," and a "motion for clarification." Those motions will be addressed below.

I. Background1
A jury found defendant Kenny Lynn Warren guilty of two counts of assault on a peace officer with a semiautomatic firearm while personally discharging a firearm, one count of false imprisonment by violence while personally using a firearm, one count of child endangerment, and one count of possession of a controlled substance. He pled no contest to being a felon in possession of a firearm. The court sentenced him to 44 years 8 months in prison.

* * *

FACTUAL AND PROCEDURAL BACKGROUND
At the time of trial, defendant and his wife P. had been married for 14 years and had been a couple for 25 years. They have two children, including one teenaged son K.
In May 2005, P. had a temporary restraining order against defendant that required he stay at least 100 yards away from her and move out of their apartment. In early June 2005, the court dissolved the restraining order because neither defendant nor P. appeared at a court hearing. Still, P. changed the locks on the apartment because she and defendant were having marital problems.
On June 13, 2005, K. woke P. to tell her there was a broken window in the kitchen. Defendant then came into P.'s bedroomand demanded to know why she had changed the locks. P. called 911.
About 1:55 a.m. that morning, Chico Police Officer Jeff Durkin responded to a domestic disturbance call. The dispatcher said that a male was breaking items inside the apartment and there might be a restraining order violation. Officers Robert Ponce and Matthew Nowicki also responded to the call.
Officer Durkin was the first officer to arrive at the apartment complex. He heard a man and a woman arguing, saw a door with a broken window pane, and came across a woman (P.) in the apartment complex corridor who seemed distraught and who told the officer in a low agitated voice that "he was inside the residence breaking items and she wanted him to leave." Officer Durkin went to the front of the apartment and through the open door saw a man (defendant) standing inside the living room. Defendant was agitated and "moving around quite a bit." While using profanity, he refused the officer's repeated requests to come outside and talk with him about "the alleged domestic disturbance."
Officer Durkin decided to go inside the apartment and detain defendant.2 When the officer stepped inside, defendant ran out of the living room. Officers Durkin and Nowicki chased defendant down a hallway and stood at the threshold of a poorly-lit bedroom in which defendant was standing. Defendant appeared agitated and aggressive and was in a "fighting stance" "directed towards [the officers]." He had "his fists out in front of him and a bladed sort of stance," looking as though he was "preparing for [the officers] to engage in some kind of physical type altercation." Officer Durkin went for his pepper spray but then heard Officer Nowicki say that he was going to use his Taser gun. Defendant reached under his shirt for a handgun that was in the waistband of his pants.
Officer Durkin yelled "gun, gun, gun" and ran into the bathroom for cover. Officer Nowicki retreated toward the door. When Officer Durkin reached the bathroom, defendant fired several shots in rapid succession from the bedroom area. Officer Durkin returned fire and radioed for help.
Officer Nowicki decided to re-enter the apartment with Officer Ponce. As they ran inside, defendant fired directly at them from the bedroom. Both officers "hit the ground." Officer Nowicki fired four shots, temporarily stopping defendant's fire. Officer Nowicki pointed a flashlight toward the bedroom door. Defendant fired another shot toward the officers.
Meanwhile, K. escaped from the apartment through a window. Not realizing K. had escaped, defendant called out to K. and when his son did not respond, defendant yelled at the officers that they had killed K. Defendant told them to "'Bring it on,'" because he had "'two more clips.'" All three officers "'hunkered down.'"
Officer Durkin, who still was in the bathroom, struck up conversation with defendant, who remained in the bedroom. When the officer told defendant that his son was okay, defendant and Officer Durkin developed a "rapport." During their four-hour conversation, defendant told the officer he would free him in exchange for a beer or soda. The officers told defendant they could not do the exchange "right then."
Eventually, a hostage negotiation team was called in, tear gas deployed, and Officer Durkin was able to escape by "thr[owing] [him]self outside the window." After a long struggle, defendant was detained.

Dckt. No. 40-1 at 1-5.

After petitioner's judgment of conviction was affirmed by the California Court of Appeal, he filed a petition for review in the California Supreme Court. Resp't's Lodg. Doc. No. 14. That petition was summarily denied by order dated October 22, 2008. Dckt. No. 1 at 99.

On December 27, 2009, petitioner filed a habeas petition in the California Supreme Court. Resp't's Lodg. Doc. No. 16. That petition was denied on July 14, 2010, with a citation to In re Robbins, 18 Cal.4th 770, 780 (1998). Resp't's Lodg. Doc. No. 17.

Petitioner commenced federal habeas corpus proceedings by filing the instant petition in this court on August 10, 2010. Dckt. No. 1. Respondent contends that the federal petition is untimely and should be dismissed. Dckt. No. 40 at 10, 16-17. The court rejects this argument for the reasons set forth in the September 1, 2011 findings and recommendations. See Dckt. No. 27.

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. 28U.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 F.3d 561, 567 (9th Cir. 2010)).

A state court decision is "contrary to" clearly established federal law if it applies a rule contradicting a holding of the Supreme Court or reaches a result different from Supreme Court precedent on "materially indistinguishable" facts. Price v. Vincent, 538 U.S. 634, 640 (2003). Under the "unreasonable application" clause of § 2254(d)(1), a federal habeas court may grant the writ if the state court identifies the correct governing legal principle from the SupremeCourt's decisions, but unreasonably applies that principle to the facts of the prisoner's case.3 Lockyer v. Andrade, 538 U.S. 63, 75 (2003); Williams, 529 U.S. at 413; Chia v. Cambra, 360 F.3d 997, 1002 (9th Cir. 2004). In this regard, a federal habeas court "may not issue the writ simply because that ...

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