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ROSENBERG v. LEWIS

May 27, 2003

EDWIN ROSENBERG, PETITIONER,
v.
GAIL LEWIS, WARDEN, RESPONDENT.



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

ORDER.

Petitioner Edwin Rosenberg seeks a writ of habeas corpus under 28 U.S.C. § 2254 challenging a judgment of conviction and sentence from the Superior Court of the State of California in and for the County of Santa Clara and affirmed by the California court of appeal. For the reasons set forth below, the petition is DENIED.

I

On May 21, 1997, petitioner was convicted by a jury of assault with a deadly weapon, Cal Penal Code § 245(a)(1), with personal infliction of great bodily injury, id § 12022.7(a), and attempted burglary, id §§ 459/460. The trial court found petitioner had six prior "strike" convictions, id § 1170.12(c) (2), and two prior serious felony convictions, id § 667(a). In the interest of justice, the court dismissed five of the prior "strike" convictions and sentenced petitioner to prison for 19 years.

The court of appeal upheld petitioner's convictions in an unpublished opinion filed on December 20, 1999. On March 1, 2000, the California Supreme Court denied petitioner's request for review.

Petitioner's request for a writ of habeas corpus from the state courts was denied by the superior court and the court of appeal, and on September 26, 2000, by the Supreme Court of California. He has exhausted his remedies in state court.

Petitioner filed his federal petition for writ of habeas corpus on December 12, 2001, alleging that he was denied his right to the effective assistance of appellate counsel. An order to show cause issued on March 11, 2002. Respondent has filed an answer. Petitioner did not file a traverse.

II

The court of appeal summarized the facts of the case as follows:

Sometime in the morning of August 10, 1996, Allison Richard and her two sons were in their apartment in San Jose, when defendant, an acquaintance of Richard's, knocked on the door. She told her sons to tell defendant she was in the shower. Around noon that day, Richard was standing in front of her apartment with her neighbor Helen Welch when defendant drove up in his truck and called out something to the two women. Richard thought his comment was rude, so she said, "This is what I do to niggers like you," and turned and walked to her apartment with Welch. She noticed defendant had parked his truck and was approaching her apartment at a fast pace. As soon as she and her friend were inside, Richard tried to close the front door, but defendant had put his foot in the doorway and pushed on the door so she could not close it. They struggled over the door. Defendant yelled at her to let him in and she yelled at him to go away or she would call the police. Defendant said he wanted the $40 Richard owed him for marijuana he had provided her; she believed that marijuana was a gift and she did not owe him money.
Defendant then took a pocket knife from his waist band and thrust the blade into the doorway opening. Ultimately, part of the door trim came apart or fell off. Richard's friend, Helen Welch, yelled at defendant and Richard to stop, and they eventually stopped struggling and Richard allowed defendant to enter her apartment. At trial, Richard could not recall defendant making any threats on her life, although she previously had testified in the preliminary hearing that defendant had threatened to kill her. When defendant entered, Richard was holding a large black vase or statue that she had grabbed, but Welch took it from her and put it on the entertainment center. Defendant put his knife back in his pocket.
Richard then told defendant she did not feel like dealing with him that day because she had just learned that someone had touched her son inappropriately. Defendant asked for his $40, and she told him to leave. He also offered to hire someone to get the person who had touched her son, but she assured him she did not need his help. Defendant refused to leave, and the two began screaming at each other. When defendant demanded she give him the money, she told him she did not owe him anything. She told him: "You are not putting any fear in my heart." Defendant then picked Richard up by her legs and she crashed into the wall behind her. She remembered nothing after that, until she came to with the paramedics and the police present. Defendant was not there. Richard's sons were under the stairs. One heard defendant say, "Do you want some more?" and then saw defendant kick his mother after she was laying on the floor.
Richard had blood all over her clothing. Her mouth and nose were broken, her eyes and face were swollen. At the hospital, she received about 30 shots of novocaine for her nose, which had to be pushed back in to place and covered with a nose brace.
Diego Marcial, a security guard, saw part of the confrontation, from his post outside in the swimming pool area. He first saw defendant approach Richard by her door and heard the two yelling. Richard asked defendant to leave, he would not, and she pushed him. Defendant said if she touched him, he would hurt her. Marcial saw defendant punch and kick the door trying to get it open after Richard and her friend went inside. He saw defendant then enter the apartment, but eventually heard more yelling and then heard the friend tell defendant she was going to call the police. After the friend left, Marcial heard something in the apartment break, then a couple of thuds, and a big crash. He could see Richard's hair and her hand against the window pulling down the blinds. Marcial then was able to see into the apartment and saw defendant cock his arm, then swing something on the floor where Richard had fallen. He heard children crying, but no female voice. Marcial then saw defendant walk calmly out the front door, look around, get in his truck and drive away.
Police Officer Richard Zehring was one of the responding officers. Based on information from Richard, the officers were able to locate defendant's address. While approaching that address, Officer Zehring received a dispatch concerning a 911 call made from defendant's residence. Defendant was then taken into custody and a knife was retrieved from his pocket. Police Officer Reed Biersdorff also responded to Richard's apartment and found her bleeding profusely from her nose and lips. She identified her assailant and his vehicle. She told the officer defendant had threatened her with a large black knife and pushed and punched her after she refused to pay him money he said she owed. Richard described defendant's threats, including "I'm going to kill you." She said she grabbed a black vase to defend herself, but defendant pushed it out of her hand and punched her in the face.
Officer Biersdorff also interviewed defendant after his arrest. Defendant said he went to Richard's residence to collect a $40 debt. They exchanged words and she slammed the door on him, breaking off some wood. He said he tried to talk to her through the door. When he looked through the window in the door, he saw her go into the kitchen, pick up a knife and walk back to the door, so he grabbed the door from the outside to hold it shut. Eventually Richard calmed down and let him come in. She said she was upset about her son being inappropriately touched. He said he only came for his money, and turned to leave. She continued to yell at him and eventually picked up a black vase and pointed it at his face. She said, "You don't put no fear in my heart." Defendant said he tried to push the vase away, but she swung it and hit him in the head. He then grabbed her and shoved her against the wall. He said she had a knife in her hand and swung it at him, so he began punching her. He said he then left the apartment, went to his uncle's house nearby to wash off the blood from his hands, and finally went back to his fiancee's house and called the police. Officer Biersdorff found no injury on defendant's head. Defendant never mentioned Helen Welch to him nor said anything about another person being present.
Defendant testified at trial, insisting he was acting in self-defense. He said soon after he met Richard, she asked him for some "weed" and he called his friend who provided her with some. Defendant said Richard wanted to be sexually involved with him, but he already had a woman. He said on August 10 he was in Richard's neighborhood and dropped by to get $40 he had loaned her. When he first went to her house, she turned him away, yelling that her sons were supposed to tell him she was in the shower. When he returned, Richard was outside and he commented on her hair. She stuck her hand out, went into her house and slammed the door. He knocked on her door, and saw her in the kitchen grabbing a knife and then running to the door. He couldn't run because of a bad leg, so he pulled on the door handle to keep the door shut. Defendant said they struggled over the door and she pushed the knife though the door opening and cut his hand. A piece of lattice work on the door broke off after Richard stabbed the knife in the door, and Helen Welch, who was present inside, tried to pull it out. Welch kept telling Richard she was "tripping." Finally, the door opened, the knife fell to the ground and Welch picked it up and put it on the entertainment center.
According to defendant, Richard began to cry and told him about her son being molested. She said she had called the police who were on their way to arrest the perpetrator. She rejected defendant's offer to help. When defendant pulled his car key out of his pocket, his knife also came out. He asked Richard for his money and she said she did not have time for "this shit." She then ran to the entertainment center, grabbed a statue and hit him over the head with it. Defendant testified Welch tried to calm him, saying, "You know she's not all here." Then Richard said, "Mother fucker, you don't put no fear in my heart," and waived the statue in his face. As he tried to push it away, she hit him in the head with it twice. He ran at her and both hit the wall. Richard tried to head-butt him. As he tried to hold her off, he noticed a knife in her right hand. He testified, "She left me no choice other than [] to defend myself. I'm a gentleman. I don't believe in a man striking a woman, . . ." He said he then hit her three or four times, and she hit him once before falling. He saw blood coming out of her nose and mouth, and she apologized to him. When he saw her getting up, he ran to his truck and left, because he thought she might pick up the knife again. He then went to his uncle's house nearby to wash the blood off his hands. When he called his mother from his fiancee's mother's house, she told him to call the police and he did. Two police officers arrived immediately and barged through the door. They did not want to know what had happened, even though he tried to tell them and offered to take them to the scene to see the statue and knife. Although he asked them to take pictures of his injuries, they never did. In cross-examination, defendant was questioned about his juvenile battery conviction. He admitted pushing a teacher, but denied ever hitting anyone in his life.
Defendant presented two witnesses: Tomika Broussard, his sister's best friend, and Thomas George, a man who had dated Richard briefly in 1993. Broussard testified that when she was at Richard's apartment having her hair done, Richard bragged about fighting with a man in August 1996, and putting him in jail. According to Broussard, Richard said she had a sexual relationship with the man. She gave Broussard the impression that she hit him first with a statue or grabbed a knife. George testified that after Richard got out of jail, she was upset because he just wanted to be friends. She threatened to destroy his property or have him beaten up. She once threw a vase at him and hit him with her fists and feet. In May 1996, his car was vandalized. Richard later drove by, waived a knife and threatened him.
People v. Rosenberg, No H018143, slip op at 2-6 (Cal Ct App. Dec 22, 1999).

III

This court may entertain a petition for a 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 or the United States." 28 U.S.C. § 2254(d). The writ 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.
Id.

In a recent elaboration of this language, the Supreme Court held:

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. 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.
Williams v. Taylor, 529 U.S. 362, 412-13 (2000). "[A] federal habeas court may not issue the writ simply because the court concludes in its independent judgement that the relevant state-court decision applied clearly established federal law erroneously or incorrectly." Id at 411. "Rather, that application must also be unreasonable." Id. 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.

Petitioner claims he received ineffective assistance of appellate counsel under ยง 2254 because his attorney did not raise the following issues on direct appeal in state court: (1) the trial court erred in finding it did not have the discretion to dismiss petitioner's prior serious felony convictions; (2) the consideration of petitioner's 1985 burglary conviction during sentencing violated the Ex Post Facto Clause; (3) the prosecution's ...


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