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,
Petitioner filed a direct appeal in the Court of Appeals for the Fifth Appellate District on May 20, 2010, presenting the following issues:
The Court of Appeals affirmed the conviction, but modified the sentence, in a written opinion filed October 30, 2010. The Supreme Court denied the petition for review on February 13, 2013.
On August 22, 2011, Petitioner filed a petition for writ of habeas corpus in the California Superior Court for Kings County. He stated the following grounds for relief:
The Superior Court denied the petition on October 19, 2011. On January 9, 2012, Petitioner filed another petition for writ of habeas corpus in Kings County Superior Court. In this petition, he pleaded a single ground for relief: "Due process of Penal Code 2932 and 5058 in accordance with the Calif. Rules and Regulations Title 15." The Superior Court denied the petition on March 6, 2012.
On August 21, 2013, in this Court, Petitioner filed a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254.
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 the Antiterrorism and Effective Death Penalty ACT OF 1996 ("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.
Petitioner contends that his right to due process was violated because the evidence presented was insufficient to prove each element of California Penal Code § 442.
California Penal Code § 442(a) provides:
To prove violation of § 422, the prosecution must establish five elements: "(1) the defendant willfully threaten[ed] to commit a crime which will result in death or great bodily injury to another person, (2) the defendant made the threat with the specific intent that the statement . . . [wa]s to be taken as a threat, even if there [wa]s no intent of actually carrying it out, (3) the threat—which may be made verbally, in writing, or by means of an electronic communication device—was on its face and under the circumstances in which it [was] made, . . . so unequivocal, unconditional, immediate, and specific as to convey to the person threatened, a gravity of purpose and an immediate prospect of execution of the threat, (4) the threat actually caused the person threatened to be in sustained fear for his or her own safety or his or her immediate family's safety, and (5) the threatened person's fear was reasonabl[e] under the circumstances." People v. Toledo, 26 Cal.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 v. Virginia, 443 U.S. 307, 319 (1979); Windham v. Merkle, 163 F.3d 1092, 1101 (9
The federal petition, prepared by Petitioner himself, presents a confused account of his argument that all five elements of § 422 were not supported by sufficient evidence. As supporting facts, Petitioner writes:
Petitioner concedes that he did not raise this issue (the first ground of the federal habeas petition) in state court, explaining "Counsel at the time was unresponsive to the defendant[`]s opinions or advice." Doc. 1 at 6. To the extent that Petitioner contends that his due process rights were violated because the written records did not corroborate Dr. Crawley's testimony, this claim is unexhausted.
A petitioner who is in state custody and wishes to collaterally challenge his conviction by a petition for writ of habeas corpus must exhaust state judicial remedies. 28 U.S.C. § 2254(b)(1). The exhaustion doctrine is based on comity to the state court and gives the state court the initial opportunity to correct the state's alleged constitutional deprivations. Coleman v. Thompson, 501 U.S. 722, 731 (1991); Rose v. Lundy, 455 U.S. 509, 518 (1982); Buffalo v. Sunn, 854 F.2d 1158, 1163 (9
A petitioner can satisfy the exhaustion requirement by providing the highest state court with a full and fair opportunity to consider each claim before presenting it to the federal court. Duncan v. Henry, 513 U.S. 364, 365 (1995); Picard v. Connor, 404 U.S. 270, 276 (1971); Johnson v. Zenon, 88 F.3d 828, 829 (9
To the extent that the first claim presented is unexhausted, the Court must dismiss it. 28 U.S.C. § 2254(b)(1); Rose, 455 U.S. at 521-22. In the second, third, and fourth grounds set forth in the federal petition, however, Petitioner addresses the due process grounds advanced in his direct appeal to the state courts.
Even if the Court considers the due process claim as it was argued in state court, Petitioner cannot prevail. On direct appeal, Petitioner's counsel presented three grounds in support of the argument that Petitioner's conviction violated his due process rights: (1) the warning that Crawley gave to Lucas could not constitute a violation of § 422 because the purpose of the communication was to warn Lucas of possible danger; (2) public policy prohibits a statement communicated through a therapist from being used to establish a violation of § 422; and (3) § 422 violates Petitioner's right to due process if communications between a patient and therapist form the ground for a criminal prosecution. The Court of Appeals rejected all three grounds. Petitioner repeats these three grounds as grounds two, three, and four of his federal petition.
In the federal petition, Petitioner contends only that the sole communication to Lucas was Crawley's Tarasoff warning—Petitioner never communicated directly with Lucas. This argument is unavailing under California law, which holds that § 422 does not require direct communication.
In his more nuanced argument to the state Appellate Court (written by counsel), Petitioner reasoned that "a person who expresses a threat to a psychotherapist, only, and makes no other effort to communicate the threat, would and should have the expectation that precaution will be taken so that the threat is not carried out." Petition for Review by Fifth District Court of Appeal, LD 4 at 8. Put another way, knowing the therapist's duty to give a Tarasoff warning, a patient in therapy should confidently be able to express to his therapist his concern that he might hurt the target of his anger, knowing that precautions would be taken to prevent the threat from reaching fruition. Petition for Review by Fifth District Court of Appeal, LD 4 at 8.
The Court of Appeal rejected this argument for two reasons. The first is factual: Petitioner did not testify that he had an expectation that any harm from his statement would be negligible because the Tarasoff warning would protect Sgt. Lucas. Instead, Petitioner testified that he never made any threats against Lucas. The record supports this portion of the Court of Appeal's analysis.
In the course of his direct examination, Petitioner denied threatening Sergeant Lucas:
The prosecutor probed further on cross-examination:
Petitioner reinforces the Appellate Court's conclusion in the traverse, reasserting his testimony that he never made a threat against Lucas and accusing Dr. Crawley of falsifying the therapy records. See Doc. 22 at 11-12 ("Petitioner presented exculpatory evidence that there was no threat communicated to the psychotherapist." All other documents in the prosecution[`s] possession were made March 12, 2010 . . . There was a few words changed in the record to falsify the doctor's report . . . There was no corroboration in these documents.")
Nothing in the record supports Petitioner's assertion that he threatened Lucas knowing that Dr. Crawley would issue a Tarasoff warning and prevent Petitioner's threats from reaching fruition. In short, the Court of Appeals reasonably reached the conclusion that Petitioner's argument lacked factual support.
Second, the Court of Appeals stated that even if it accepted Petitioner's argument and concluded that he lacked intent to carry out the threat, it would still affirm Petitioner's conviction of violating § 422, which penalizes the making of the threat "even if there is no intent of actually carrying it out." Cal. Penal Code § 422(a). The Court of Appeals factually distinguished Petitioner's situation from that addressed in People v. Felix (92 Cal.App.4
Petitioner argued that Felix held that a defendant's communication of a threat in the context of therapy was outside the type of communication reached by § 422. The court rejected Petitioner's interpretation. It first distinguished Petitioner's case, in which the evidence showed that Petitioner's threat was reported to Lucas, from Felix, in which witness accounts of the therapist's communication of the threat to the intended victim was not admitted into evidence:
The Court of Appeals also distinguished this case from Felix based on the absence of any evidence that Felix was aware that his psychologist was required to convey his threats, in contrast to Petitioner, whom Crawley warned of her responsibility under Tarasoff:
In his petition for Supreme Court review and his federal habeas petition, however, Petitioner did no more that reassert his argument, relying on Felix. The Court disagrees and finds reasonable both the Court of Appeals' distinction of this case from Felix and its determination that Petitioner intended his statement to be taken as a threat.
As his third ground for relief, Petitioner contends that "[i]t is consistent with public policy to read Section 422 as not criminalizing a communication that occurs through a therapist's duty to warn." Doc. 1 at 8. In support of this claim, Petitioner argues that he never told Dr. Crawley to convey his threat to Sgt. Lucas and that Crawley conveyed the threat solely because California law required her to do so.
Characterizing Petitioner's claim as "meritless," the Court of Appeals opined that (1) by creating an exception to the psychotherapist-patient privilege in Evidence Code § 1024, the Legislature determined that, as a matter of public policy, the privilege must yield when a therapist concludes that the patient is a danger to himself or others, and (2) by imposing on psychotherapists a duty to warn of a patient's danger to another, the California Supreme Court, in Tarasoff, determined that the necessity to avert danger to others outweighed the psychotherapist-patient privilege. Doc. 18-1 at 10-11. Acknowledging that its concern was not with a psychotherapist's duty to warn, the Court of Appeals explained that these actions of the California Legislature and the Supreme Court are evidence of their determination that a patient's right to confidentiality in therapy did not extend to situations in which a patient presents a danger to others. In the absence of privilege, the evidence can be used in any proceedings subject to the rules of evidence, including the criminal prosecution of the declarant. See Menendez v. Superior Court, 3 Cal.4
As discussed above, under the applicable standard of review, Petitioner bears the burden of establishing that the state court's decision is contrary to, or involves an unreasonable application of, United States Supreme Court precedent. See Baylor, 94 F.3d at 1325. Petitioner offers no explanation as to how his federal due process rights are violated by the California court's interpretation of the California Legislature's intent in enacting applicable California law (Tarasoff, California Civil Code § 43.92, and California Evidence Code § 1024). Petitioner's direct appeal, which addressed this issue as a matter of California state law, does not resolve the federal petition's deficiency.
"[F]ederal habeas corpus relief does not lie for errors of state law." Estelle v. McGuire, 502 U.S. 62, 67 (1991) (citations omitted). See also, e.g., Randolph v. California, 380 F.3d 1133, 1147 (9
The Court declines to address this state-law question.
For his fourth ground, Petitioner contends that construing § 422 to criminalize communication disclosed in a Tarasoff warning is unconstitutional. Petitioner neither explains the nature of the constitutional violation nor sets forth any applicable United States Supreme Court precedent. In support of this ground, Petitioner states simply, "[Petitioner] testified and denied giving a threat to the victim Sgt. Lucas. [Petitioner] did not incriminate himself in any illegal activity." Doc. 1 at 10. Petitioner does not address ground four in his traverse.
As set forth in the federal petition, ground four is so vague and conclusory as to prevent meaningful examination by this Court. A federal court may summarily dismiss allegations in a petition that are vague, conclusory, patently frivolous or false, or palpably incredible. Hendricks v. Vasquez, 908 F.2d 490, 491 (9th Cir. 1990).
Attempts to salvage Petitioner's contentions by resort to the state appeal prepared by his appellate counsel are not helpful. In arguing this ground before the California court, Petitioner, through his attorney, contended that Petitioner's 14
As discussed in ground two above, the California Court of Appeals distinguished Felix from Petitioner's case on its facts. In Chase, the federal prosecution of an individual who threatened FBI agents, the circuit court declined to create a federal dangerous patient exception to the testimonial privilege, such as that set forth in California Evidence Code § 1024. 340 F.3d at 979. Because the court did not analyze the constitutionality of a dangerous patient exception under either federal or state law, Chase is not helpful to Petitioner's federal habeas claim.
The balance of Petitioner's argument in his direct appeal merely argued the cruelty and absurdity of prosecuting Petitioner for a threat made in the course of a therapy session. Although the argument refers to a First Amendment right to voice a threat that is not communicated to the intended victim, no federal or California authority is offered to support the claim.
As was the case with ground three above, Petitioner has failed to bear his burden of demonstrating that the state court's decision is contrary to, or involves an unreasonable application of, United States Supreme Court precedent. See Baylor, 94 F.3d at 1325. As a result, the Court must deny this ground for a writ of habeas corpus.
For the first time in his traverse, Petitioner asserts that the trial court's determination that Petitioner waived the psychotherapist-patient privilege violated the Fifth Amendment to the U.S. Constitution. Petitioner also contends that (1) Dr. Crawley's testimony regarding the confidential disclosure form (1030 form) was false; (2) the prosecution failed to establish probable cause for Petitioner's conviction as required by Illinois v. Gates, 462 U.S. 213 (1983); (3) due process proscribes Petitioner's conviction based on perjured testimony; (4) the Court failed to determine whether Petitioner posed a serious danger of violence to the victims, as required by Mavroudis v. Superior Court, 102 Cal.App.3d 594 (1980); and (5) the police and prosecutor concealed significant exculpatory or impeaching evidence in the state's possession.
Petitioner raised these claims in his first state habeas petition, which the Kings County Superior Court denied on October 19, 2011. Petitioner never presented these claims to the California Court of Appeals or Supreme Court. As a result, the claims are not exhausted.
It is also improper to raise substantively new issues or claims in a traverse, and a court may decline to consider such matters. To raise new issues, a petitioner must obtain leave to file an amended petition or additional statement of grounds. Cacoperdo v. Demosthenes, 37 F.3d 504, 507 (9th Cir. 1994). Petitioner never sought such amendment.
Even if Petitioner had exhausted these claims, the Court would decline to address them based on the lack of support for them in the record.
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 petitioner's petition, a certificate of appealability may issue only if the petitioner has made a substantial showing of the denial of a constitutional right." 28 U.S.C. § 2253(c)(2). The petitioner must demonstrate "that 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 or her part." Miller-El, 537 U.S. at 338.
In the present case, the Court finds that 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. Petitioner has not made the required substantive showing of the denial of a constitutional right. Accordingly, the Court declines to issue a certificate of appealability.
Accordingly, the Court hereby ORDERS that:
IT IS SO ORDERED.
