SHEILA K. OBERTO, Magistrate Judge.
Petitioner, a state prisoner proceeding pro se with a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254, was sentenced to an enhanced term under the California Three Strikes Law (Cal. Penal Code § 667) for failing to register as a convicted sex offender during a brief sojourn in Kern County.
In 1987, Petitioner was convicted of rape, penetration with a foreign object, and robbery (Cal. Penal Code §§ 667 (c)-(j); 1170.12 (a)-(e)) arising from a single incident. Because of these convictions, he is required to register as a sex offender (Cal. Penal Code § 290). Petitioner served his prison sentence and was discharged from parole in May 1999. He last registered in May 2008 in Torrance, California, where he lived with his sister.
Torrance Police Detective Rosemary Herrera testified that when she registered Petitioner, she emphasized the importance of his observing all of the written requirements set forth on the registration form. Petitioner was required to read and initial each requirement, including:
Detective Herrera testified that she explained to Petitioner that he needed to let her know of his whereabouts if he was gone for two, three, or four weeks. Petitioner never informed the detective that he was living in Rosamond, Kern County, California.
Before 2009, Petitioner, his girlfriend, and their baby lived with Petitioner's sister, Theresa Crouch, in Torrance, California. Petitioner, a plumber, had his own business. After the baby was born, Petitioner's sister, Theresa Crump, told him to get rid of his two pit bulls, who were destroying her backyard.
In December 2008, Petitioner contacted Diana Daunert, a schoolteacher who lived and operated an animal rescue facility in Mojave, California, seeking a place to keep the dogs. Daunert agreed to board the dogs in return for Petitioner's performing plumbing and other work, including building kennels and fences. Petitioner worked for Daunert for four days in December before leaving to work on a Christmas tree lot near his home. While in Mojave, he slept outside with his dogs. After the holidays, Petitioner returned with a motorhome and continued working for Daunert until February 10 or 11, 2009.
Petitioner left Daunert's property several times—to assist her by picking up a large donation of dog food, to help renovate a house in Lancaster, to attempt to arrange a swap of the motorhome for a truck, and to stay in Los Angeles. At some point, Petitioner told Daunert that he had a major fight with his wife and was never going back. He later told Daunert that he intended to go to relatives in Oklahoma and conduct a plumbing business there. Petitioner left Daunert's property with one or both of his dogs.
Robert G. Downs, who lived down the road from Daunert, encountered Petitioner in January or February 2009 when Petitioner's motor home broke down on the roadway in front of Downs' home.
On February 23, 2009, Kern County Deputy Sheriff Dennis Gagnon arrested Petitioner after stopping him for driving a truck without front or back license plates. Petitioner, who was not carrying identification, gave a false name and birthdate. After Gagnon's records check failed to identify anyone with that name and birthdate, Gagnon handcuffed Petitioner and drove him to his nearby motor home, where Petitioner claimed to have left his wallet. After Gagnon entered the home and could not find the wallet, Petitioner disclosed his real name and explained he was avoiding a warrant issued by the Torrance Police Department.
Although Torrance had not issued a warrant for Petitioner's arrest, Gagnon discovered that Petitioner was a registered sex offender who had been living in two locations on Joshua Lane without registering in Kern County. Gagnon testified that he spoke with Petitioner's mother, who told him that Petitioner was transient and homeless, but never spoke to Petitioner's sister.
Larry Smith, an investigator for the Kern County Public Defender's Office, testified that Daunert told him that Petitioner stayed with her for three weeks in December 2008 and January and February 2009, but left several times in that period. On one occasion, Daunert gave Petitioner a ride home, and on other occasions, he was picked up by his mother and a boyfriend. In a July 2009 interview, Petitioner's sister told Smith that Petitioner had stayed at a rescue facility in the desert long enough to pay off the cost of boarding his dogs there. She picked him up there on one occasion. When Smith interviewed Petitioner's mother on August 6, 2009, she told him that Petitioner had lived in his motor home after it broke down in the desert. On one occasion, she drove to Rosamond to bring him home.
Officer Stephanie Kennedy, supervisor of the registration unit of the Kern County Sheriff's Department, testified that Petitioner had not registered in Kern County but was currently registered in Torrance, California.
Petitioner's mother, Barbara Smith, testified that Petitioner had resided in Torrance for the prior 2 ½ years, either with her, his former wife, or his sister Theresa. She picked Petitioner up in Rosamond at least three times in January and February 2009. (A friend with a truck had initially driven Petitioner and the dogs there since the dogs were too big for her car.) On another occasion, Smith saw Petitioner in Theresa's home. Petitioner had taken the motorhome out of storage in January 2009, and she assumed he was living in it while he worked at the kennels.
Theresa Crouch testified that in February 2009, Petitioner lived in her home in Torrance. His belongings were there, and he received his mail there. Petitioner was gone for a few days at a time, returning frequently to stay, eat, and do his laundry before going back to continue working off his debt for boarding his dogs.
On July 10, 2009, the Kern County District Attorney charged Petitioner with one count of willful failure to register as a sex offender within five working days of coming into or changing residence within a jurisdiction (Cal. Penal Code § 290(b)) and one count of willful failure to notify the last registering agency of his move (Cal. Penal Code § 290.013(a)). In September 2009, he was tried in a bifurcated trial in Kern County Superior Court. On September 22, 2009, the jury convicted Petitioner on both counts. The parties then submitted Petitioner's prior convictions to the judge for determination of strikes. On December 3, 2009, the court sentenced Petitioner to 25 years to life in prison.
Petitioner filed a direct appeal to the California Court of Appeal, Fifth Appellate District, which affirmed the conviction on July 1, 2011. The California Supreme Court denied review.
On October 10, 2012, Petitioner filed a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254.
On October 25, 2012, Petitioner filed a petition for writ of habeas corpus with the California Supreme Court. The Court summarily denied the petition on December 19, 2012.
A person in custody as a result of the judgment of a state court may secure relief through a petition for habeas corpus if the custody violates the Constitution or laws or treaties of the United States. 28 U.S.C. § 2254(a); Williams v. Taylor, 529 U.S. 362, 375 (2000). On April 24, 1996, Congress enacted the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"), which applies to all petitions for writ of habeas corpus filed thereafter. Lindh v. Murphy, 521 U.S. 320, 322-23 (1997). Under the statutory terms, the petition in this case is governed by AEDPA's provisions because Petitioner filed it after April 24, 1996.
Habeas corpus is neither a substitute for a direct appeal nor a device for federal review of the merits of a guilty verdict rendered in state court. Jackson v. Virginia, 443 U.S. 307, 332 n. 5 (1979) (Stevens, J., concurring). Habeas corpus relief is intended to address only "extreme malfunctions" in state criminal justice proceedings. Id. Under AEDPA, a petitioner can prevail only if he can show that the state court's adjudication of his claim:
"By its terms, § 2254(d) bars relitigation of any claim `adjudicated on the merits' in state court, subject only to the exceptions set forth in §§ 2254(d)(1) and (d)(2)." Harrington v. Richter, 562 U.S. 86, 98 (2011).
As a threshold matter, a federal court must first determine what constitutes "clearly established Federal law, as determined by the Supreme Court of the United States." Lockyer, 538 U.S. at 71. To do so, the Court must look to the holdings, as opposed to the dicta, of the Supreme Court's decisions at the time of the relevant state-court decision. Id. The court must then consider whether the state court's decision was "contrary to, or involved an unreasonable application of, clearly established Federal law." Id. at 72. The state court need not have cited clearly established Supreme Court precedent; it is sufficient that neither the reasoning nor the result of the state court contradicts it. Early v. Packer, 537 U.S. 3, 8 (2002). The federal court must apply the presumption that state courts know and follow the law. Woodford v. Visciotti, 537 U.S. 19, 24 (2002). The petitioner has the burden of establishing that the decision of the state court is contrary to, or involved an unreasonable application of, United States Supreme Court precedent. Baylor v. Estelle, 94 F.3d 1321, 1325 (9
"A federal habeas court may not issue the writ simply because the court concludes in its independent judgment that the relevant state-court decision applied clearly established federal law erroneously or incorrectly." Lockyer, 538 U.S. at 75-76. "A state court's determination that a claim lacks merit precludes federal habeas relief so long as `fairminded jurists could disagree' on the correctness of the state court's decision." Harrington, 562 U.S. at 101 (quoting Yarborough v. Alvarado, 541 U.S. 652, 664 (2004)). Thus, the AEDPA standard is difficult to satisfy since even a strong case for relief does not demonstrate that the state court's determination was unreasonable. Harrington, 562 U.S. at 102.
In his first two claims, Petitioner alleges errors in the jury instructions.
Generally, claims of instructional error are questions of state law and are not cognizable on federal habeas review. "It is not the province of a federal court to reexamine state court determinations of state law questions." Estelle v. McGuire, 502 U.S. 62, 71-72 (1991). "The fact that a jury instruction violates state law is not, by itself, a basis for federal habeas corpus relief." Clark v. Brown, 450 F.3d 898, 904 (9
To prevail in a collateral attack on state court jury instructions, a petitioner must do more that prove that the instruction was erroneous. Henderson v. Kibbe, 431 U.S. 145, 154 (1977). The petitioner must prove that the improper instruction "by itself so infected the entire trial that the resulting conviction violated due process." Estelle, 502 U.S. at 72. Even if there were constitutional error, habeas relief cannot be granted absent a "substantial and injurious effect" on the verdict. Brecht v. Abrahamson, 507 U.S. 619, 637 (1993).
A federal court's review of a claim of instructional error is highly deferential. Masoner v. Thurman, 996 F.2d 1003, 1006 (9
Even when the trial court has made an error in the instruction, a habeas petitioner is only entitled to relief if the error "had a substantial and injurious effect or influence in determining the jury's verdict." Brecht, 507 U.S. at 637 (quoting Kotteakos v. United States, 328 U.S. 750, 776 (1946)). A state prisoner is not entitled to federal habeas relief unless the instructional error resulted in "actual prejudice." Brecht, 507 U.S. at 637. If the court is convinced that the error did not influence the jury, or had little effect, the judgment should stand. O'Neal v. McAninch, 513 U.S. 432, 437 (1995).
Before the trial court, the parties stipulated "that the defendant actually knew that he had a duty to register as a sex offender under Penal Code section 290 wherever he resides." In his first claim, Petitioner contends that his Fifth, Sixth, and Fourteenth Amendment rights were violated because the jury instructions did not specify that Petitioner had to actually know that he had a duty to register as a sex offender in Kern County. Specifically, he argues that the instructions did not require the jury to find that he actually knew that § 290 deemed the motorhome to be a residence triggering the registration requirement.
The trial court instructed the jury:
Noting that the parties had stipulated that Petitioner had knowledge of his duty to register, the state court rejected Petitioner's contention, distinguishing the state precedent on which Petitioner had relied and stating, in pertinent part:
The state court resolved Petitioner's challenge by interpreting the state statute mandating registration of convicted sex offenders—exactly the type of state law analysis to which federal habeas courts are required to defer. It concluded that the statutory element was that to which Petitioner had stipulated at trial and declined to adopt the more tailored instruction of the knowledge requirement that Petitioner first advocated in his direct appeal.
To the extent that Petitioner argues a federal constitutional basis for this claim, he relies on federal cases requiring the prosecution to prove all elements of the crimes beyond a reasonable doubt. See Victor v. Nebraska, 511 U.S. 1, 5 (1994) ("The government must prove beyond a reasonable doubt every element of a charged offense"); Sullivan v. Louisiana, 508 U.S. 275, 277 (1993) ("The government bears the burden of proving all elements of the offense charged"); In re Winship, 397 U.S. 358, 364 (1970) ("[T]he due process clause protects the accused against conviction except upon proof beyond a reasonable doubt of every fact necessary to constitute the crime with which he is charged"). The problem with his argument is that the state court rejected Petitioner's version of how the statute should be interpreted and concluded that the prosecution had proved every element of the statute.
"[F]ederal habeas corpus relief does not lie for errors of state law." Estelle, 502 U.S. at 67. "Federal courts are extraordinarily chary of entertaining habeas corpus violations premised upon asserted deviations from state procedural rules." Hernandez v. Ylst, 930 F.2d 714, 719 (9
As his second ground for habeas relief, Petitioner contends that the trial court erred in giving CALCRIM 207, which instructs the jury that the evidence need not establish the actual date of the offense. Petitioner contends that the date of the crime is necessary since the prosecution had to prove five consecutive days of residence to trigger a duty to register.
The state court rejected Petitioner's contention that the prosecution was required to prove five consecutive days of residence to trigger the duty to register:
As with his first claim, Petitioner contends that the inclusion of CALCRIM 207 relieved the prosecution of its burden of proving all elements of the crime. Once again, Petitioner challenges the state court's construction of state law contrary to the position that Petitioner advocates. As noted above, this Court's habeas jurisdiction does not extend to state courts' construction of state laws.
No trial witness identified with certainty the date on which Petitioner began staying in Kern County to work off his dog-boarding debt. Accordingly, CALCRIM 201 was required to advise the jury that no specific date was necessary under California law so long as the elements of the crimes were proven. The Court also provided the CALCRIM 1170 instruction, which, as read to the jury, set forth all elements of the two charged crimes. As a whole, the instructions were complete, allowing the jury, as factfinders, to determine whether Petitioner's duty to register in Kern County was triggered, and if so, the date on which Petitioner was statutorily required to do so.
The state court's providing CALCRIM 207 did not relieve the prosecution of its duty to prove all elements of the crimes charged.
For the first time in his federal petition, Petitioner contends that if the Court decides claims one and two against him, his trial counsel was ineffective in failing to object to the instructions.
The purpose of the Sixth Amendment right to counsel is to ensure that the defendant receives a fair trial. Strickland v. Washington, 466 U.S. 668, 686 (1984). "[T]he right to counsel is the right to effective assistance of counsel." McMann v. Richardson, 397 U.S. 759, 771 n. 14 (1970). "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 on as having produced a just result." Strickland, 466 U.S. at 686.
To prevail on a claim of ineffective assistance of counsel, a petitioner must demonstrate that his trial counsel's performance "fell below an objective standard of reasonableness" at the time of trial and "that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Id. at 688, 694. The Strickland test requires Petitioner to establish two elements: (1) his attorney's representation was deficient and (2) prejudice. Both elements are mixed questions of law and fact. Id. at 698.
These elements need not be considered in order. Id. at 697. If a court can resolve an ineffectiveness claim by finding a lack of prejudice, it need not consider whether counsel's performance was deficient. Id.
Under 28 U.S.C. §2254(d), a federal habeas court's review is limited to claims that have been "adjudicated on the merits in State court proceedings." See Cullen v. Pinholster, 563 U.S. 170, 181-82 (2011). Under the habeas scheme set forth in AEDPA, state courts have the primary responsibility to address petitioners' claims. Visciotti, 537 U.S. 19, 27. This means that petitioners must exhaust their claims before the state courts before presenting them for federal habeas review. 28 U.S.C. §2254(b). Because Petitioner did not advance this argument in state court, it is not cognizable.
In any event, since Petitioner cannot prevail on either of the first two grounds alleged in the petition, counsel's failure to object using those grounds cannot be said to have prejudiced Petitioner.
In his third claim, Petitioner contends that his 4
To determine whether the evidence supporting a conviction is so insufficient that it violates the constitutional guarantee of due process of law, a court evaluating a habeas petition must carefully review the record to determine whether a rational trier of fact could have found the essential elements of the offense beyond a reasonable doubt. Jackson, 443 U.S. at 319; Windham v. Merkle, 163 F.3d 1092, 1101 (9
Petitioner contends that the prosecution failed to prove he knew that living in a recreational vehicle (motor home) constituted residence in Kern County. The Court of Appeal rejected this argument, citing testimony that Petitioner himself told Deputy Gagnon that he had been living in Rosamond to evade a warrant issued by the City of Torrance. The Court cited City and County of San Francisco v. Givens (85 Cal.App.4
Construing the evidence in the light most favorable to the prosecution, as this Court must do, Petitioner's admission to living in Rosemond to evade the warrant constitutes evidence from which the jury could conclude that Petitioner was aware that living in a residential vehicle constituted residence in Kern County.
Petitioner contends that the evidence adduced at trial was not sufficient to prove that he ever resided in Kern County for five consecutive days. The state court rejected this argument on legal and factual grounds, quoting:
As discussed above, a federal habeas court's jurisdiction does not include the reexamination of state court determinations of state law questions. Estelle, 502 U.S. at 71-72. In any event, the state court added that Diana Daunert's testimony that Petitioner lived on her property continuously from early January to mid-February 2009 was sufficient to support a jury verdict the Petitioner lived in Kern County for five consecutive days, thereby triggering a duty to register. This Court agrees.
The state court also rejected Petitioner's argument that he had not been charged with failure to register at a second address and that sufficient evidence did not support a conclusion that he had moved from his registered address in Torrance. Again, the court's reasoning reflected both legal and factual bases for its conclusion:
Reexamining state court determinations of state law questions is not within this Court's jurisdiction. Estelle, 502 U.S. at 71-72. The jury's finding was supported by sufficient evidence.
Petitioner was sentenced to an extended term under California's Three Strikes Law (Cal. Penal Code § 667). The California Legislature enacted its enhanced sentencing (three strikes) law "to ensure longer prison sentences and greater punishment for those who commit a felony and have been previously convicted of one or more serious and/or violent felony offenses." Cal. Penal Code § 667(b). The law provides that the prison sentence of an individual convicted of a serious felony, who has previously been convicted of a serious felony or its equivalent in another jurisdiction, shall be enhanced by another consecutive five-year term for each such prior conviction. Cal. Penal Code § 667(a)(1).
Petitioner contends that the trial court abused its discretion in refusing to treat the registration offense as a misdemeanor and to set aside the strikes attributable to his prior convictions. Respondent contends that this Court lacks jurisdiction to reach this issue since it concerns only the application of California state law. The Court agrees that it lacks jurisdiction to reconsider the trial court's sentencing analysis.
The state trial court's determination not to strike Petitioner's prior convictions was an exercise of the court's sentencing discretion under California law. See People v. Superior Court (Romero), 13 Cal.4
Petitioner contends that the state court's imposition of a sentence of 25 years to life imprisonment for his failure to register as a sex offender constitutes cruel and unusual punishment in violation of the 8th Amendment to the U.S. Constitution.
"Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted." U.S. Const., amend. VIII. Courts determine whether punishment is cruel or unusual by looking beyond historical conceptions to "the evolving standards of decency that mark the progress of a maturing society." Estelle v. Gamble, 429 U.S. 97, 102 (1976) (quoting Trop v. Dulles, 356 U.S. 86, 101 (1958)).
Whether a sentence violates the Eighth Amendment's prohibition of cruel and unusual punishment requires the court to determine whether the term is grossly disproportionate to the offense. Lockyer, 538 U.S. at 72. What constitutes a grossly disproportionate sentence is unclear. Id. "[T]he only relevant clearly established law amenable to the `contrary to' or `unreasonable application of' framework is the gross disproportionality principle, the precise contours of which are unclear, applicable only in the `exceedingly rare' and `extreme' case." Id. at 73. Successful challenges based on disproportionality are "exceedingly rare." Solem v. Helm, 463 U.S. 277, 289-90 (1983).
In the 1990s, multiple states, including California, responded to public concerns about the threat of career criminals by enacting statutes imposing enhanced sentences on repeat offenders. Ewing v. California, 538 U.S. 11, 24 (2003). California's three strikes law was intended to be "a focused effort to create a sentencing policy that would use the judicial system to reduce serious and violent crime." Id. (quoting Ardaiz, California's Three Strikes Law: History, Expectations, and Consequences, 32 McGeorge L.Rev. 1, 12 (2000)). In addressing the three strikes law and other state enhanced sentencing schemes, the Supreme Court declined to alter its long-time practice of deferring to state legislature's policy-making on sentencing. Ewing, 538 U.S. at 24-25. Nothing in the 8th Amendment prevents California from making a policy decision that "public safety requires incapacitating criminals who have already been convicted of at least one serious or violent crime." Id. at 25.
Ewing challenged a sentence of 25 years to life for "shoplifting three golf clubs." Id. at 28. The Supreme Court rejected that characterization, finding that Ewing had stolen golf clubs valued at $1200 after having previously been convicted of two serious or violent felonies. Id. The Court emphasized that a fair proportionality evaluation appropriately considered not only the current offense, but also Ewing's criminal history, which included "numerous misdemeanor and felony offenses," nine prison terms, commission of crimes while on probation and parole, and prior "strikes" including robbery and three residential burglary counts. Id. at 30. "In imposing a three strikes sentence, the State's interest is not merely punishing the offense of conviction, or the `triggering' offense: `[I]t is in addition the interest . . . in dealing in a harsher manner with those who by repeated criminal acts have shown that they are simply incapable of conforming to the norms of society as established by its criminal law.'" Id. at 29 (quoting Rummel v. Estelle, 445 U.S. 263, 276 (1980)). The Court concluded that a sentence of 25 years to life, imposed under the three strikes law, was not grossly disproportionate and, therefore, did not violate the 8th Amendment's prohibition of cruel and unusual punishment. Ewing, 538 U.S. at 30-31.
Supreme Court determinations on 8th Amendment challenges to enhanced sentences have not been consistent, however. In Rummel, 445 U.S. at 276, the Court held that a life sentence for defrauding the victim of $120.75 was not disproportionate where defendant had two prior felony convictions. In Solem, however, the Court held that a life sentence for passing a $100 bad check was disproportionate under South Dakota recidivist statute where (1) crime was nonviolent and well under the baseline amount for a felonious theft, (2) punishment was the maximum that could be imposed for any crime, and (3) the defendant had six prior nonviolent felonies, none of which involved a crime against a person and all of which were committed when the defendant was under the influence of alcohol. 463 U.S. at 303. Then, in Harmelin v. Michigan (501 U.S. 957, 965 (1991)), the Court observed that "Solem was scarcely the expression of clear and well accepted constitutional law," and rejected the proposition that the proportionality principle applied in an analysis of cruel and unusual punishment. It affirmed Harmelin's sentence of life without possibility of parole for possession of 672 grams of cocaine. Id. at 961, 996. In Lockyer, 538 U.S. at 72, the Court observed that it had not established a "clear or consistent path for courts to follow" in determining "whether a sentence for a term of years can violate the Eighth Amendment." It then upheld a sentence of two consecutive terms of 25 years to life for two separate thefts of videotapes by a defendant with a diverse criminal record and heroin addiction.
Because the contours of the Eighth Amendment's disproportionality principle are not clear, the state court's affirming Petitioner's enhanced sentence was not objectively unreasonable under established federal law. 28 U.S.C. § 2254(d). Accordingly, this Court may not grant a writ of habeas corpus based on the sentence imposed by the state court.
A petitioner seeking a writ of habeas corpus has no absolute entitlement to appeal a district court's denial of his petition, but may only appeal in certain circumstances. Miller-El v. Cockrell, 537 U.S. 322, 335-36 (2003). The controlling statute in determining whether to issue a certificate of appealability is 28 U.S.C. § 2253, which provides:
If a court denies a habeas petition, the court may only issue a certificate of appealability "if jurists of reason could disagree with the district court's resolution of his constitutional claims or that jurists could conclude the issues presented are adequate to deserve encouragement to proceed further." Miller-El, 537 U.S. at 327; Slack v. McDaniel, 529 U.S. 473, 484 (2000). Although the petitioner is not required to prove the merits of his case, he must demonstrate "something more than the absence of frivolity or the existence of mere good faith on his. . . part." Miller-El, 537 U.S. at 338.
Reasonable jurists would not find the Court's determination that Petitioner is not entitled to federal habeas corpus relief debatable, wrong, or deserving of encouragement to proceed further. Accordingly, the Court declines to issue a certificate of appealability.
The Court hereby DENIES the petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254. The Court declines to issue a certificate of appealability. The Clerk of Court is directed to enter judgment for the Respondent.
IT IS SO ORDERED.
