GONZALO P. CURIEL, District Judge.
Petitioner Paul Hupp ("Petitioner"), proceeding pro se, filed a Petition for Writ of Habeas Corpus ("Petition") pursuant to 28 U.S.C. § 2254, challenging his 2013 state court conviction ("2013 Conviction"). On June 19, 2018, the Magistrate Judge filed a Report and Recommendation denying the Petition. (ECF No. 25.) On August 24, 2018, Petitioner filed Objections and a supplemental Objection on October 31, 2018. (ECF Nos. 31, 32, 34.) On November 29, 2018, Petitioner filed a request for judicial notice in support of his Objections. (ECF No. 36.) On December 10, 2018, Petitioner filed another request for judicial notice in support of his Objections. (ECF. No. 38.) For the reasons stated below, this Court
On January 13, 2012, the Riverside County District Attorney's Office charged Petitioner with one count of simple stalking in violation of California Penal Code ("Penal Code") section 646.9(a); one count of stalking in violation of a court order in violation of Penal Code section 646.9(a); one count of making a criminal threat in violation of Penal Code section 422, and one count of misdemeanor disobeying a court order in violation of Penal Code section 166(a)(4). (Lodgment No. 8, ECF No. 6-29 at 8, 10-11
A jury trial was held from January 28, 2013 to February 19, 2013. (Lodgment No. 3, ECF No. 6-21 at 96-124.) The jury found Petitioner guilty of all charges. (Id. at 125.) On March 20, 2013, the trial court sentenced Petitioner to a three-year prison term, but suspended execution of the sentence, and granted him a one year jail sentence with five years of probation. (Id. at 127-28.)
On March 12, 2014, Petitioner filed a direct appeal of his conviction in the California Court of Appeal, Fourth Appellate District, Division One. (Lodgment No. 5, ECF No. 6-26.) Petitioner requested reversal of his convictions based on (1) ineffective assistance of counsel for failing to object to the admission of Petitioner's contempt conviction; (2) repeated acts of prosecutorial misconduct; (3) due process violations in permitting impeachment with collateral matters. (Id.) Petitioner alternatively requested reversal of his simple stalking conviction as a lesser included offense of stalking in violation of a court order. On January 8, 2015, the state appellate court modified the judgment to dismiss Petitioner's simple stalking conviction, but otherwise found no error. (Lodgment 8, ECF No. 6-29.) Petitioner then filed a petition for review in the California Supreme Court in February 2015, which was denied on April 1, 2015. (Lodgment No. 9, ECF No. 6-30; Lodgment 10, ECF No. 6-31.)
On March 31, 2016, Petitioner filed the instant petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254. (Petition, ECF No. 1.) Petitioner asserts six grounds challenging his conviction:
(Petition, ECF No. 1 at 5, 7, 8, 10, 16.) On April 8, 2016, Respondent filed an Answer. (Answer, ECF No. 5-1.) On June 19, 2018, Magistrate Judge Jill L. Burkhart filed a Report and Recommendation Denying Petition for Writ of Habeas Corpus ("R&R"). (R&R, ECF No. 25.) On August 24, 2018, Petitioner filed Objections to Report and Recommendation. (Objection, ECF Nos. 31, 32.) On October 31, 2018, Petitioner filed a supplemental Objection. (ECF No. 34.) On November 29, 2018, Petitioner filed a request for judicial notice in support of his Objections. (ECF No. 36.) On December 10, 2018, Petitioner filed another request for judicial notice in support of his Objections. (ECF No. 38.) In both requests for judicial notice, he asks the Court to consider additional California state court cases and federal cases in support of his petition. The Court construes the requests for judicial notice as a notice of supplemental authority.
The Court gives deference to state court findings of fact and presumes them to be correct. See 28 U.S.C. § 2254(e)(1); see also Parke v. Raley, 506 U.S. 29, 35 (1992) (state court findings are entitled to statutory presumption of correctness). A habeas petitioner bears the burden of rebutting these facts by clear and convincing evidence.
(Lodgment 8, ECF No. 6-29 at 2-11.)
The Court "may accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate judge." 28 U.S.C. § 636(b)(1). Because objections were made, the Court reviews the magistrate judge's findings and recommendations de novo. 28 U.S.C. § 636(b)(1)(C); United States v. Reyna-Tapia, 328 F.3d 1114, 1121 (9th Cir. 2003) (en banc).
Under the Antiterrorism and Effective Death Penalty Act ("AEDPA"), a court will not grant a habeas petition with respect to any claim adjudicated on the merits by the state court unless that adjudication: "(1) resulted in a decision that was contrary to, or involved an unreasonable application of clearly established federal law; or (2) resulted in a decision based on an unreasonable determination of the facts in light of the evidence presented at the state court proceeding." 28 U.S.C. § 2254(d); Early v. Packer, 537 U.S. 3, 8 (2002).
A federal court may grant habeas relief under the "contrary to" clause if the state court applied a different rule than the governing law established by the Supreme Court, or if it decided a case differently than the Supreme Court on a set of materially indistinguishable facts. Bell v. Cone, 535 U.S. 685, 694 (2002). The court may grant relief under the "unreasonable application" prong if the state court correctly identified the governing Supreme Court principle but unreasonably applied it to the facts of the case. Id. Additionally, the "unreasonable application" prong requires the state court's application of clearly established federal law to be "objectively unreasonable." Lockyer v. Andrade, 538 U.S. 63, 75 (2003).
A federal court uses the decision of the highest state court to make its habeas determination. Ylst v. Nunnemaker, 501 U.S. 797, 803-04 (1991). However, if no reasoned decision from the highest state court exists, the Court "looks through" to the last reasoned state court decision and presumes it provides the basis for the higher court's denial of a claim or claims. Id. at 805-06. A state court need not cite Supreme Court precedent when resolving a habeas corpus claim, "[s]o long as neither the reasoning nor the result of the state-court action contradicts [Supreme Court precedent]." Early, 537 U.S. at 8.
Petitioner raises six grounds for relief in his 2013 Conviction. These six grounds fall within two broader claims of ineffective assistance of counsel and prosecutorial misconduct relating to the use of Petitioner's 1982 Conviction and 2011 Conviction (collectively "Prior Convictions") that he claims are invalid, void or illegal. All six grounds ask the Court to presume that Petitioner's Prior Convictions are invalid, void or illegal.
Because the Petition is challenging his Prior Convictions as void, the Court must first determine whether it has the subject matter jurisdiction to review Petitioner's claims for relief. If the Court has subject matter jurisdiction over the Prior Convictions, the Court must also determine whether the challenges are cognizable.
Neither party raised the issue of subject matter jurisdiction; instead, the Magistrate Judge sua sponte properly raised the issue of whether this Court has subject matter jurisdiction over the Petition. (ECF No 25 at 13.) The Magistrate Judge noted that Petitioner's challenge to his 2013 Conviction "rest[s] on his ability to launch successful collateral attacks either on his 1982 misdemeanor conviction for contributing to the delinquency of a minor, or on his 2011 civil contempt of court conviction for sending Mr. Freedmen letters in violation of a November 2010 restraining order." (Id. at 13:11-15.) After a thoughtful analysis, the Magistrate Judge found that Petitioner was not "in custody" as to Petitioner's 1982 and 2011 Convictions and the Court lacks jurisdiction to consider the Petition. (ECF No. 25 at 14:12-16.)
In his Objections, Petitioner does not address the "in custody" requirement and whether the Court has subject matter jurisdiction over the case. Therefore, the Court may accept the recommendations of the Magistrate Judge. See 28 U.S.C. § 636(b)(1).
The requirement that a petitioner seeking habeas relief must be "in custody in violation of the Constitution or laws or treaties of the United States" is jurisdictional. Maleng v. Cook, 490 U.S. 488, 490 (1989) (quoting 28 U.S.C. § 2254(a)). Thus, federal courts have subject matter jurisdiction to consider habeas petitions by individuals challenging state court criminal judgments only if, at the time the petition is filed, the petitioner is "in custody" under the conviction challenged in the petition. Id. at 492. When a petitioner's sentence has fully expired, he is precluded from challenging that conviction because he is no longer "in custody" for purposes of federal habeas review. Id.
In Lackawanna, the Court held that the petitioner satisfied the "in custody" requirement because the petition could be construed as asserting a challenge to his current sentence as enhanced by an allegedly invalid prior conviction. Lackawanna Cnty. Dist. Attorney v. Coss, 532 U.S. 394, 401-02 (2001) (challenge to constitutionality of 1958 expired conviction construed as challenge to current 1978 sentences enhanced by 1958 conviction); see also Brock v. Weston, 31 F.3d 887, 889-91 (9th Cir. 1994) (challenge to expired 1974 assault conviction must be construed as challenge to current civil confinement predicated upon an enhancement due to the prior conviction); Allen v. Oregon, 153 F.3d 1046, 1048-49 (9th Cir. 1998) (challenge to prior state convictions must be construed as collateral attack on current federal sentence enhanced by prior state convictions). The Ninth Circuit, in Zichko v. Idaho, 247 F.3d 1015, 1019-20 (9th Cir. 2001), also held that the "in custody" requirement is met where a prior conviction was a necessary predicate to his current conviction or sentence. In Zichko, the Ninth Circuit explained that "a habeas petitioner is in custody for the purposes of challenging an earlier, expired rape conviction, when he is incarcerated for failing to comply with a state sex offender registration law [,] because the earlier rape conviction is a necessary predicate to the failure to register charge". Id. at 1019. The Supreme Court clarified, however, that a petitioner satisfying the requirement is "in custody" for the purpose of the current conviction and not for the prior conviction. See Lackawanna, 532 U.S. at 401.
Here, Petitioner has not demonstrated that the "in custody" requirement has been met as to his 1982 and 2011 Convictions. Petitioner's 1982 Conviction was expunged in 1997 and he cannot be deemed to be in custody for that conviction. Moreover, he was never imprisoned for the 1982 Conviction. Petitioner is also no longer serving the sentence imposed pursuant to the 2011 conviction.
Petitioner also does not claim the Prior Convictions were used to enhance his current sentence but instead challenges them because they were introduced as evidence that was used against him that resulted in his current conviction. He also does not claim that his Prior Convictions were necessary predicates to his current conviction. Accordingly, the Court concludes that it does not have subject matter jurisdiction over the claims challenging the Prior Convictions. Alternatively, even if the Court had subject matter jurisdiction, the Court concludes that his claims based on challenges to his Prior Convictions are not cognizable under Lackawanna.
Next, the R&R raised the issue sua sponte regarding whether Petitioner's challenges would be cognizable under Lackawanna. (ECF No. 25 at 16-18.) The Magistrate Judge again found that Petitioner could not meet the requirements and recommended denying the Petition. (Id. at 18:24-27.)
In his Objections, Petitioner contends that Lackawanna is inapplicable because it dealt with "convictions" and because his Prior Convictions were invalid or void, they cannot be considered "convictions." (ECF No. 31 at 10:8-15.) Petitioner also asserts that the government is required to prove the validity of the prior convictions. (Id. at 7:1-3.)
Even where a petitioner is "in custody" for the purpose of § 2254 review, the Supreme Court recognizes a general bar on challenging a current conviction on the basis that the prior conviction was unconstitutionally obtained. See Lackawanna, 532 U.S. at 403-04. In Lackawanna, the United States Supreme Court held:
Id. (internal citation omitted). The Court noted three exceptions. First, the general bar does not apply if the "prior conviction . . . was obtained where there was a failure to appoint counsel in violation of the Sixth Amendment, as set forth in Gideon v. Wainwright, 372 U.S. 335, 83 S.Ct. 792, 9 L.Ed. 2d 799 (1963)." Id. at 404. Second, the plurality in Lackawanna suggested another exception to the general bar where a petitioner obtains "compelling evidence that he is actually innocent of the crime for which he was convicted, and which he could not have uncovered in a timely manner." Id. at 405. The third exception is where state courts had "`without justification, refuse[d] to rule on a constitutional claim that has been properly presented' to them." Id.; Dubrin v. California, 720 F.3d 1095, 1099 (9th Cir. 2013) (recognizing exception to Lackawanna where state courts had, "`without justification, refuse[d] to rule on a constitutional claim that ha[d] been properly presented' to them").
Here, Petitioner does not specifically argue that any of the exceptions to Lackawanna apply and the R&R correctly explains why the exceptions do not apply. (ECF No. 25 at 17-18.) The R&R explained that the Prior Convictions were not uncounseled in violation of Gideon v. Wainwright, 372 U.S. 335 (1963). Even though Petitioner claims that his 1982 Conviction was uncounseled, an uncounseled misdemeanor conviction for which the defendant was not imprisoned
The R&R also concluded that Petitioner was not deprived of an opportunity for review. (ECF No. 25 at 17-18.) As noted in the R&R, Petitioner, while he argued that his 2011 Conviction was not appealable, he filed habeas corpus petitions in state and federal court. This is noted in the Petition. (ECF No. 1 at 12.) On December 14, 2011, Petitioner filed a petition for writ of habeas corpus contesting his 2011 conviction. (Hupp v. Harris, Case No. 11-cv-02909-IEG-RBB, ECF No. 1.) On December 16, 2011, the district court dismissed the habeas petition without prejudice after finding that Petitioner did not meet the "in custody" requirement and had failed to exhaust his state court remedies. (11-cv-02909, ECF No.7.) The court acknowledged Petitioner's claims that the judgment of contempt of court was not appealable, but notified Petitioner that habeas review was available in the state court system. (Id. at 3:8-16.)
On January 3, 2012, Petitioner filed an Amended Petition for Writ of Habeas Corpus ("Amended Petition"). (11-cv-02909, ECF No. 11.) In his Amended Petition, Petitioner conceded that the California Supreme Court had not yet reviewed his petition, but asserted that they had sufficient time to rule.
In sum, the Court concludes that Petitioner's challenges to his Prior Convictions are not cognizable under Lackawanna and they are presumptively valid. See Lackawanna, 532 U.S. at 403-04. Therefore, because Ground Four, alleging prosecutorial misconduct due to a failure to turn over exculpatory evidence in his 2011 contempt of court case that was then used as evidence to support his 2013 Conviction, rises or falls based on the validity of the underlying 2011 Conviction, the Court DENIES the claim in Ground Four. Similarly, the Court also DENIES Ground Three claiming prosecutorial misconduct for the prosecution to use the unconstitutionally obtained 1982 Conviction to support his 2013 Conviction because the claim rises or falls based on the validity of the underlying 1982 Conviction.
However, the Court considers the First, Second, Fifth and Sixth Grounds based on prosecutorial misconduct arising from the prosecutors use of his Prior Convictions to "vouch for and bolster" his 2013 conviction and claim of ineffective assistance of counsel in allowing the 1982 conviction to be used at trial. In liberally construing Petitioner's challenges, even if the Prior Convictions are presumed valid, the Petition plausibly alleges claims under § 2254.
The Court considers the merits of Petitioner's challenge to his 2013 Conviction with the presumption that both of his Prior Convictions are valid. The Court considers the extent to which the Prior Convictions were used in determining whether any prosecutorial misconduct or ineffective assistance of counsel occurred.
Grounds One, Five and Six relate to the prosecutor's use of the evidence of Petitioner's Prior Convictions. Petitioner claims that the use of his Prior Convictions and the eight hours spent during closing arguments discussing his 1982 Conviction constituted prosecutorial misconduct. (ECF No. 1.)
"On habeas review of a prosecutorial misconduct claim, [a court] may grant relief only if the misconduct rises to the level of a due process violation—not merely because [the court] might disapprove of the prosecutor's behavior." Towery v. Schriro, 641 F.3d 300, 306 (9th Cir. 2010). A criminal defendant's due process rights are violated when a prosecutor's misconduct renders a trial "fundamentally unfair." Darden v. Wainwright, 477 U.S. 168, 193 (1986). Petitioner has the burden to prove the prosecutor's comments "`infected the trial with unfairness as to make the resulting conviction a denial of due process.'" Id. at 181 (quoting Donnelly v. DeChristoforo, 416 U.S. 637 (1974)). Furthermore, the alleged misconduct must be reviewed in the context of the entire trial. Donnelly, 416 U.S. at 643.
On Grounds One and Five, Petitioner contends that his Prior Convictions were impermissibly used to "vouch for and bolster" his 2013 Conviction. (ECF No. 1.)
Respondent countered that facts relating to the 1982 Conviction were only introduced by the prosecutor on cross-examination after Petitioner testified about the 1982 Conviction. (ECF No. 5-1 at 10-12.) As to both Prior Convictions as well as all legal proceedings offered into evidence, Respondent contends that the jury was instructed to consider the evidence only to determine the existence or absence of a motive. (Id. at 25:13-19.)
The Court of Appeal found that the prosecution's cross-examination of Petitioner regarding the 1982 Conviction, though lengthy, "stayed within the bounds of permissible cross-examination on matters raised by [Petitioner] in direct examination." (Lodgment 8 at 21, ECF No. 6-29.) The court explained that the prosecutor's questioning and arguments regarding the 1982 Conviction were in response to Petitioner's direct testimony about the facts giving rise to the 1982 Conviction. (
The Magistrate Judge noted that it was Petitioner who initially testified at length on direct examination about the facts surrounding his arrest and conviction in 1982 in an attempt to explain his reasons for sending letters to Mr. Freedman in 2000 and 2006. (ECF No. 25 at 28:10-20.) The Magistrate Judge consequently found that the Court of Appeal had reasonably found there was no prosecutorial misconduct because the prosecutor's questioning on cross-examination was within the scope of Petitioner's direct examination. (ECF No. 25 at 30:10-20.)
In his Supplemental Brief, Petitioner counters that in the absence of valid convictions, there was no lawful authority to use the evidence surrounding his Prior Convictions. (ECF No. 31 at 13:21-22.) Petitioner also asserts that there were no limiting jury instructions as to his Prior Convictions. (ECF No. 34 at 7:13-14.)
"Evidence of a crime, wrong, or other act is not admissible to prove a person's character in order to show that on a particular occasion the person acted in accordance with the character." Fed. R. Evid. 404(b)(1); see also Cal Evid. Code § 1101(a). However, "[t]his evidence may be admissible for another purpose, such as proving motive, opportunity, intent, preparation, plan, knowledge, identity, absence of mistake, or lack of accident." Fed. R. Evid. 404(b)(2); see also Cal. Evid. Code § 1101(b). Where evidence of the facts and circumstances of a prior crime are admissible to show motive, the evidence is not rendered inadmissible merely because the conviction is vacated. See Morris v. Mathews, 475 U.S. 237, 256-57 (1986) (no reason to believe vacating robbery conviction would have precluded evidence of robbery to show motive and opportunity for murder). Moreover, a prosecutor may cross examine on anything "reasonably suggested" by the direct examination. United States v. Martinez, 967 F.3d 1343, 1347 (9th Cir. 1992) (quoting United States v. Havens, 446 U.S. 620, 627 (1980)); Michelson v. United States, 335 U.S. 469, 485 (1948) ("we think defendants in general and this defendant in particular have no valid complaint at the latitude which existing law allows to the prosecution to meet by cross-examination an issue voluntarily tendered by the defense.").
Here, the prosecution's use of the 1982 Conviction during cross examination and use of the 2011 Conviction to establish motive was not a violation of U.S. Supreme Court precedent.
Moreover, despite Petitioner's assertion that no limiting instructions were given as to his Prior Convictions, the record demonstrates the contrary. The first instruction addresses Petitioner's past legal proceedings generally:
(Lodgment 4, Part 4, ECF No. 6-25 at 195.) The second specifically addresses Petitioner's 2011 contempt conviction:
(Lodgment 4, Part 4, ECF No. 6-25 at 196.) Jurors are presumed to follow their instructions. Weeks v. Angelone, 528 U.S. 225, 234 (2000). Petitioner offers no evidence that these instructions were not followed.
It was reasonable for the Court of Appeal to conclude that the evidence of Petitioner's Prior Convictions were admissible to cross examine Petitioner and establish motive, and Petitioner has failed to demonstrate that the prosecutor's comments about his Prior Convictions rendered the trial "fundamentally unfair." See Darden, 477 U.S. at 193. Thus, the state court's decision was not contrary to nor an unreasonable application of Supreme Court law. See Bell, 535 U.S. at 694. For the reasons stated above, this Court
On Ground Six, Petitioner claims that the prosecutor spent over eight hours in closing argument referring to the 1982 Conviction. The record reveals the contrary. The trial transcripts show that the prosecution's closing argument and rebuttal argument took, at most, four hours total. (Lodgment No. 3 at 119-22, ECF No. 6-21.) Further, the prosecution spent little time discussing the 1982 conviction, and instead spent a significant amount of time highlighting the similarity of the threatening letters. (Lodgment 1, Part 14 and Part 15; ECF Nos. 6-14 and 6-15.)
Because Petitioner's claim is premised on a misstatement of the record, the Court finds that Petitioner does not meet his burden of proving that the prosecutor's discussion of Petitioner's 1982 Conviction "`infected the trial with unfairness as to make the resulting conviction a denial of due process.'" See Darden, 477 U.S. at 181. Therefore, this Court
Ground Two of the Petition claims ineffective assistance of counsel in allowing Petitioner's 1982 misdemeanor conviction to be used at trial.
The state court did not review this issue because Petitioner did not raise an ineffective assistance of counsel claim as to the use of his 1982 Conviction in his appeal to the state court. Instead, Petitioner's only claim of ineffective assistance of counsel before the state court related to the use of his 2011 Conviction. (Lodgment 5 at 16.) On this basis, the Magistrate Judge found that Petitioner did not meet the exhaustion requirement with respect to this issue. Nonetheless, the Court may deny a petition on the merits "notwithstanding the failure of the applicant to exhaust the remedies available in the courts of the State." 28 U.S.C. § 2254(b)(2). The Ninth Circuit has explained that a "federal court may deny an unexhausted petition on the merits only when it is perfectly clear that the applicant does not raise even a colorable federal claim." Cassett v. Stewart, 406 F.3d 614, 623-24 (9th Cir. 2005).
A defendant claiming ineffective assistance of counsel ("IAC") must show both (1) deficient performance under an objective standard of reasonableness and (2) prejudice. Strickland v. Washington, 466 U.S. 668, 687 (1984). To demonstrate deficient performance, "[t]he challenger's burden is to show `that counsel made errors so serious that counsel was not functioning as the "counsel" guaranteed the defendant by the Sixth Amendment.'" Harrington v. Richter, 131 S.Ct. 770, 787 (2011) (quoting Strickland, 466 U.S. at 687). To demonstrate prejudice, the petitioner must show that "but for counsel's unprofessional errors," there is a reasonable probability "the result of the proceeding would have been different." Strickland, 466 U.S. at 694 ("A reasonable probability is a probability sufficient to undermine confidence in the outcome"); see Richter, 131 S. Ct. at 792 ("The likelihood of a different result must be substantial, not just conceivable").
Ground Two is not only procedurally barred for Petitioner's failure to raise it on direct appeal, but also fails on the merits. As discussed above, evidence of Petitioner's 1982 Conviction was permissibly raised because on direct examination, he first raised the facts surrounding the 1982 Conviction to explain his version of the facts. Therefore, Petitioner has not demonstrated that his counsel was deficient for failing to object, and the Court ADOPTS the Magistrate Judge's R&R and DENIES habeas relief on Ground Two of the Petition.
Under Rule 11 of the Federal Rules Governing section 2254 cases, this Court must "issue or deny a certificate of appealability when it enters a final order adverse to the applicant." If this Court does not issue a certificate of appealability, this decision may not be appealed, 28 U.S.C. § 2253(c)(1)(A), and this Court may not issue a certificate of appealability unless Petitioner makes a "substantial showing of the denial of a constitutional right," 28 U.S.C. § 2253(c)(1)(B)(2). To prove a substantial showing of denial of a constitutional right, Petitioner must demonstrate that "reasonable jurists would find the district court's assessment of the constitutional claims debatable or wrong." Slack v. McDaniel, 529 U.S. 473, 483 (2000). "A petitioner satisfies this standard by demonstrating 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 v. Cockrell, 537 U.S. 322, 327 (2003). Here, Petitioner does not make a substantial showing of the denial of a constitutional right, and it is unlikely that reasonable jurists would find this Court's assessment debatable or wrong. Therefore, the Court DENIES a Certificate of Appealability.
This Court
IT IS SO ORDERED.
