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March 31, 2003


The opinion of the court was delivered by: Charles R. Breyer, United States District Judge.


Petitioner was convicted by a jury in the Superior Court of the State of California in and for the County of Alameda of felony failure to register as a sex offender after previously having been convicted of failure to register as a sex offender (Cal. Penal Code § 290(g)(2)). He also admitted two prior convictions (including a prior "strike" conviction for bank robbery) and, on October 6, 2000, was sentenced to four years in state prison.

Petitioner waived his right to appeal in return for the dismissal of trailing criminal charges in another case. He nonetheless collaterally challenged his conviction and sentence in the state courts. On August 29, 2001, the Supreme Court of California denied his final petition for state habeas relief.

Petitioner then filed the instant federal petition for a writ of habeas corpus under 28 U.S.C. § 2254. Per order filed on December 21, 2001, the court found that the petition, liberally construed, stated cognizable claims under § 2254 and ordered respondent to show cause why a writ of habeas corpus should not be granted. Respondent has filed an answer to the order to show cause and petitioner has filed a traverse.


The parties stipulated that on November 3, 1992, petitioner was convicted of misdemeanor annoying or molesting a child (Cal. Penal Code § 647.6) and was ordered to register as a sex offender for life. They also stipulated that on October 21, 1997, petitioner was convicted of failing to register as a sex offender (Cal. Penal Code § 290(g)(1)). The issue at trial was whether petitioner again willfully and unlawfully failed to comply with the registration requirements of California Penal Code section 290 after October 21, 1997, a felony under section 290(g)(2).

Alameda Detective Rick Cocanour, a member of the Alameda County sexual assault unit in charge of enforcing sexual offender registration requirements, testified that he was "flagged to [petitioner's] attention" by September 1998 DMV records showing that petitioner had changed his address from Oakland to Alameda and that he now lived at 1627 Santa Clara Avenue, Apartment A. Detective Cocanour ran a police record check and found that Alameda Police Officer Gee had contacted petitioner at 1627 Santa Clara Avenue, Apartment A to investigate an unrelated complaint of petitioner's. Detective Cocanour went to that address and, after speaking with the landlord, Geraldine Robinson, concluded that petitioner lived there. Detective Cocanour contacted the Bureau of Electricity and found that petitioner's name was on the application for electricity at 1627 Santa Clara Avenue, Apartment A. On November 30, 1998, Detective Cocanour set up surveillance at 1627 Santa Clara Avenue and arrested petitioner. There was no indication that petitioner lived elsewhere and the local United States Post Office confirmed that petitioner was receiving mail at 1627 Santa Clara Avenue, Apartment A.

Detective Cocanour obtained records from the California Department of Justice showing that on October 29, 1997 petitioner registered his address as 1618 61st Street in Oakland. Petitioner again registered the same address on March 31, 1998 and on June 1, 1998. Petitioner told Detective Cocanour at the time of the arrest that he had changed his address with DMV to obtain cheaper insurance, but that he lived in Oakland, where he was registered, and only occasionally stayed in Alameda with his girlfriend, Donella Collins.

James Palmieri, a United States Postal Service letter carrier, testified that he delivered mail in Alameda starting in late 1997 and that his route included 1627 Santa Clara Avenue. Mr. Palmieri saw petitioner at that address once or twice a week and had conversations with him. Mr. Palmieri placed petitioner's name inside the mailbox at Aparment A. Petitioner's name remained on the box until January 1999, when Ms. Robinson informed Mr. Palmieri that petitioner had moved. (Mr. Palmieri filled out a change of address card on January 28, 1999, indicating that petitioner had moved and had left no forwarding address.)

Bruce Maxwell testified that he moved into 1627 Santa Clara Avenue, Apartment C in September 1996. At that time, petitioner, a woman Mr. Maxwell knew as "Donella," and two children were living in Apartment A. Mr. Maxwell saw petitioner at the apartment two or three times a week, occasionally in the morning when it looked like petitioner was going to work. Between September 1996 and January 1999, Mr. Maxwell heard petitioner's voice in the apartment below "essentially every day that [Mr. Maxwell] was there."

Geraldine Robinson testified that she owned and managed the four-plex apartments at 1627 Santa Clara Avenue, and lived on a residence in front of the complex. In June 1996, Apartment A became available for rent and a woman who identified herself as Donella Collins contacted Ms. Robinson about the apartment. Ms. Collins and petitioner met with Ms. Robins to discuss renting the apartment. Petitioner inspected the apartment and "approved it." Both petitioner and Ms. Collins signed the rental application. Ms. Collins then executed the rental agreement and told Ms. Robinson that she signed the lease for petitioner. Ms. Collins also presented Ms. Robinson with documentation of petitioner's credit. Petitioner and Ms. Collins moved in the next day. They lived there from June 16, 1996 until January 13, 1999. During that time, Ms. Robinson saw petitioner at the apartment almost every day. (At some point after petitioner and Ms. Collins moved out, Ms. Collins called Ms. Robinson and asked her to take petitioner's name off the lease.)

Alameda Police Officer Wayland Gee testified that he was dispatched to 1627 Santa Clara Avenue, Apartment A on June 19, 1998. Officer Gee met with petitioner inside the apartment. Petitioner explained that he was receiving annoying telephone calls. Officer Gee suggested placing a "trap" on the telephone or changing the number. He then filled out an "incident card" and petitioner gave 1627 Santa Clara Avenue, Apartment A as his home address.

Joan Gregory, an employee of the Alameda Bureau of Electricity, testified that in June 1996 a person identifying herself as Donella Williams called her regarding an application for services at 1627 Santa Clara Avenue, Apartment A. Ms. Williams asked Ms. Gregory to open the account in the name Clayton Collins, and provided petitioner's background information, including his social security number and place of employment. Ms. Williams called back that same day and asked to have the account in her name, but indicated that petitioner would be living at that address as her "roommate." After the account was closed in January 1999, petitioner came into the Bureau of Electricity and asked to have his name removed from the Bureau records. Petitioner called again in March 2000 and asked to have his name removed from their records, claiming that he never lived there.

Petitioner chose not to testify. In his defense, however, Donella Williams (aka Donella Collins) testified that because she had credit problems, she asked petitioner is she could use his credit on the lease application for the apartment at 1627 Santa Clara Avenue in Alameda. Petitioner, who was living with his mother in Oakland, agreed to help. Ms. Williams represented that petitioner was her husband, when in fact they were just friends. When Ms. Robinson insisted on meeting petitioner, he went along to look at the apartment and participated in Ms. Williams' scheme. Petitioner did not move any of his personal items into the apartment, and he did not live there. (The exercise equipment in the apartment belonged to Ms. Williams' brother, not petitioner.)

About two years later, petitioner needed a place to work and Ms. Williams agreed to let him use the apartment. They started having a romantic relationship and he spent the night two or three times a week. She allowed him to receive personal mail there for his "business." Petitioner did not contribute to the rent.

Kennitta Vaughn, petitioner's niece, testified that she and her mother, Janice Collins, lived with petitioner at 1618 61st Street in Oakland from sometime in 1996 through 1998. Petitioner's mother also lived in that residence. Petitioner stayed in a small separate unit behind the main house, which had the same mailing address. He kept his personal belongings there. Ms. Vaughn did not know where petitioner slept because she stayed in the front unit and had to take care of her children. Petitioner moved out after his mother died in July 1999.

On cross examination, Ms. Vaughn explained that she could not remember where petitioner was living in 1994 through 1996. He "probably" was living at the 61st Street address in Oakland in 1996 and 1997. Her best recollection was that he lived there "a few years back" before moving out when his mother died. She saw petitioner, "on average," three or four times a week and had no idea where he was staying when she did not see him around the house.


A. Standard of Review

A writ of habeas corpus may not be granted with respect to any claim that was adjudicated 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).

"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 [the Supreme] 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 v. Taylor, 529 U.S. 362, 412-13 (2000). "Under the `reasonable application clause,' a federal habeas court may grant the writ if the state court identifies the correct governing legal principle from [the] Court's decisions but unreasonably applies that principle to the facts of the prisoner's case." Id. at 413.

"[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. Rather, that application must also be unreasonable." Id. at 411. A federal habeas court making the "unreasonable application" inquiry should ask whether the state court's application of clearly established federal law was "objectively unreasonable." Id. at 409.

The only definitive source of clearly established federal law under 28 U.S.C. § 2254(d) is in the holdings (as opposed to the dicta) of the Supreme Court as of the time of the state court decision. Williams, 529 U.S. at 412; Clark v. Murphy, 317 F.3d 1038, 1044 (9th Cir. 2003). While circuit law may be "persuasive authority" for purposes of determining whether a state court decision is an unreasonable application of Supreme Court precedent, only the Supreme Court's holdings are binding on the state courts and only those holdings need be "reasonably" applied. Id.

B. Claims

Petitioner raises seven claims for relief under ยง 2254: (1) denial of due process at the sentencing hearing; (2) imposition of an "excessive and unjust" sentence; (3) unknowing and involuntary admission of priors; (4) improper denial of motion to substitute counsel; (5) improper exercise of ...

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