Welker v. Hartley
| Decision Date | 28 June 2011 |
| Docket Number | No. C 08-4551 RMW (PR),C 08-4551 RMW (PR) |
| Parties | GREGORY WELKER, Petitioner, v. WARDEN JAMES HARTLEY, Respondent. |
| Court | U.S. District Court — Northern District of California |
Petitioner, a state prisoner proceeding pro se, filed a petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. The court ordered respondent to show cause why the petition should not be granted. Respondent has filed an answer addressing the merits of the petition. Petitioner has filed a traverse1 . Having reviewed the briefs and the underlying record, the court concludes that petitioner is not entitled to relief based on the claims presented and denies the petition.
The victim, an 11 year old girl in 2005, testified that her mother, Lisa, left her with petitioner, her stepfather, while Lisa stayed at the hospital with the victim's four-year-old sister, who was undergoing treatment for leukemia. (Resp't Ex. B at 1-2.) The victim and her brother fell asleep in her mother's bed while watching television. (Id. at 2.) Petitioner entered the bedroom and reached into her pajama bottoms to rub her vaginal area with two fingers. (Id.) Between March 1 and October 17, 2005, petitioner engaged in this conduct about 25 times. (Id.)
On April 6, 2006, petitioner pled guilty as charged to continuous sexual abuse of a child. (Id.) His subsequent motion to withdraw his plea was denied. (Id.) On November 21, 2006, the court sentenced petitioner to the middle term of 12 years. (Id.)
On direct appeal, the state appellate court affirmed the judgment, and the state supreme court denied the petition for review. Petitioner filed unsuccessful habeas petitions in the state appellate and supreme courts. The instant federal petition was filed on September 30, 2008.
This court may entertain a petition for writ of habeas corpus "in behalf of a person in custody pursuant to the judgment of a state court only on the ground that he is in custody in violation of the Constitution or laws or treaties of the United States." 28 U.S.C. § 2254(a). Under the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"), a district court may not grant a petition challenging a state conviction or sentence on the basis of a claim that was reviewed on the merits in state court 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 the state court proceeding." 28 U.S.C. § 2254(d). The first prong appliesboth to questions of law and to mixed questions of law and fact, Williams v. Taylor, 529 U.S. 362, 384-86 (2000), while the second prong applies to decisions based on factual determinations, Miller-El v. Cockrell, 537 U.S. 322, 340 (2003).
"Under the 'contrary to' clause, a federal habeas court may grant the writ if the state court arrives at a conclusion opposite to that reached by Court on a question of law or if the state court decides a case differently than [the] Court has on a set of materially indistinguishable facts." Williams, 529 U.S. at 412-13. A state court decision is an "unreasonable application of" Supreme Court authority, falling under the second clause of § 2254(d)(1), if the state court correctly identifies the governing legal principle from the Supreme Court's decisions but "unreasonably applies that principle to the facts of the prisoner's case." Id. at 413. The federal court on habeas review may not issue the writ "simply because that court concludes in its independent judgment that the relevant state-court decision applied clearly established federal law erroneously or incorrectly." Id. at 411.
Under 28 U.S.C. § 2254(d)(2), a state court decision "based on a factual determination will not be overturned on factual grounds unless objectively unreasonable in light of the evidence presented in the state-court proceeding." Miller-El, 537 U.S. at 340. The court must presume correct any determination of a factual issue made by a state court unless the petitioner rebuts the presumption of correctness by clear and convincing evidence. See 28 U.S.C. § 2254(e)(1).
In determining whether the state court's decision is contrary to, or involved an unreasonable application of, clearly established federal law, a federal court looks to the decision of the highest state court to address the merits of a petitioner's claim in a reasoned decision. LaJoie v. Thompson, 217 F.3d 663, 669 n.7 (9th Cir. 2000).
The standard of review under AEDPA is somewhat different where the state court gives no reasoned explanation of its decision on a petitioner's federal claim and there is no reasoned lower court decision on the claim. In such a case, a review of the record is the only means of deciding whether the state court's decision was objectively reasonable. See Plascencia v. Alameida, 467 F.3d 1190, 1197-98 (9th Cir. 2006). When confronted with such a decision, a federal court should conduct "an independent review of the record" to determine whether thestate court's decision was an objectively unreasonable application of clearly established federal law. Plascencia, 467 F.3d at 1198.
Petitioner raises two ineffective assistance of counsel claims in his petition.
A claim of ineffective assistance of counsel is cognizable as a claim of denial of the Sixth Amendment right to counsel, which guarantees not only assistance, but effective assistance of counsel. Strickland v. Washington, 466 U.S. 668, 686 (1984). The benchmark for judging any claim of ineffectiveness must be whether counsel's conduct so undermined the proper functioning of the adversarial process that the trial cannot be relied upon as having produced a just result. Id.
In order to prevail on a Sixth Amendment ineffectiveness of counsel claim, petitioner must establish two things. First, he must establish that counsel's performance was deficient, i.e., that it fell below an "objective standard of reasonableness" under prevailing professional norms. Id. at 687-88. Second, he must establish that he was prejudiced by counsel's deficient performance, i.e., that "there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Id. at 694. A reasonable probability is a probability sufficient to undermine confidence in the outcome. Id.
Petitioner claims that there was insufficient evidence to support the court's finding that the victim was "particularly vulnerable" and the court should not have considered the victim's "emotional distress" as an aggravating factor. (Pet., Attach. A at 5-6.) Petitioner claims that counsel's failure to object to these two aggravating factors rendered his assistance ineffective. (Id. at 6.)
At sentencing, the trial court imposed the twelve-year middle term as the result of balancing three aggravating factors against two mitigating factors. (Resp't Ex. I at 30-31.) In mitigation, the court noted appellant had no prior criminal past, and that appellant entered a plea early on in the proceedings. (Id. at 31.) In aggravation, the court noted that appellant "took advantage of a position of trust or confidence," as he was the victim's stepfather. (Id. at 28-29.)Additional aggravating factors were that the victim suffered "a great deal of emotional distress," and was "particularly vulnerable" because of the difficult circumstances concerning her sister's leukemia. (Id.)
The California Court of Appeal rejected petitioner's claim. (Resp't Ex. B. at 1.) It found no abuse of sentencing discretion from the trial court's reliance on the aggravating factors that the victim suffered great emotional distress and was particularly vulnerable. (Id. at 5.) Defense counsel had argued at trial that emotional distress should not be used as an aggravating factor, citing People v. Levitt, 156 Cal. App. 3d 500, 516-17 (1984). In Levitt, the court rejected the bereavement of the victim's family as an aggravating factor because it was not rationally related to the defendant's degree of culpability. (Id. at 4-5.) Here, the appellate court found that petitioner's situation could be distinguished from Levitt because the victim's emotional distress was not out of petitioner's control. (Id.) In fact, continued the appellate court, petitioner "made a choice to continue sexually abusing the victim on each occasion notwithstanding her distress." (Id.) As for the other aggravating factor, the appellate court reasoned that the victim was particularly vulnerable not because her mother was absent from the home, as petitioner suggested, but because the "the family was going through an extremely trying time." (Id.) The appellate court concluded that the trial court was within its discretion to take the family circumstance into account, and its "reliance on this factor was not error." (Id.)
Alternatively, the appeal court found no prejudice. (Id. at 5.) In California's determinate sentencing system, "the existence of a single aggravating circumstance is legally sufficient to make the defendant eligible for the upper term." (Id.) The court noted that petitioner took advantage of his position of trust or confidence when he engaged in his conduct, an aggravating factor that petitioner did not question. (Id.) This circumstance alone was sufficient to balance the mitigating factors and impose the middle sentence. (Id.)
The Supreme Court has not decided what standard should apply to counsel's performance in non-capital sentencing proceedings. Cooper-Smith v. Palmateer, 397 F.3d 1236, 1244 (9th Cir. 2005). Strickland declined to "'consider the role of counsel in an...
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