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Miani v. Ollison

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF CALIFORNIA


March 12, 2007

ANTHONY JOHN MIANI, PETITIONER,
v.
D.L. OLLISON, WARDEN RESPONDENT.

The opinion of the court was delivered by: Hon. Anthony J. Battaglia Magistrate Judge United States District Court

Report and Recommendation Denying Petitioner's Habeas Corpus Petition [Doc. No. 19]

Petitioner Anthony John Miani (hereinafter "Petitioner"), a state prisoner proceeding pro se, filed a Petition for Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254 challenging his April 29, 2004 conviction in San Diego Superior Court Case No. SCN 160845. On September 7, 2006, Respondent filed an answer. [Doc. No. 9]. On October 16, 2006, Petitioner filed a traverse. [Doc. No. 17]. Based upon a review of the record and for the reasons set forth herein, it is recommended that the Petition for Writ of Habeas Corpus be DENIED.

Procedural History

Petitioner was charged in counts 1, 2 and 3 with committing attempted murder (Cal. Penal Code § 189). California Penal Code section 12022.53, subdivision (c) gun discharge enhancements were alleged as to each count. Section 12022.53, subdivision (c) provides for an additional and consecutive prison term of 20 years if a person discharges a gun during the commission or attempted commission of one of the enumerated felonies. One of the enumerated felonies is murder (Cal. Penal Code § 12022.53, subdivision (a)(1)). However, voluntary manslaughter is not included among the enumerated felonies. The court here instructed the jury on the lesser included offense of voluntary manslaughter and an enhancement of personally using a firearm during a felony as provided by Cal. Penal Code § 12022.5, subdivision (a). [Lodgment 7 at *2]. Petitioner was also charged with aggravated mayhem in count 4 (Cal. Penal Code § 205), shooting at an inhabited structure or vehicle in counts 5-6 (Cal. Penal Code § 246), mayhem in count 7 (Cal. Penal Code § 203), residential burglary in count 8 (Cal. Penal Code §§ 459/460), and felon in possession of a firearm in count 9 (Cal. Penal Code § 12021, subdivision (a)(1)). The information also alleged Petitioner personally used a firearm during the commission of the crimes charged in counts 1-6 and 8 within the meaning of California Penal Code sections 12022.53, subdivision (b), 1203.075, subdivision (a), 1203.6, subdivision (a)(1) or 1192.7, subdivision (c)(8). [Lodgment 1 at 1-7].

On April 29, 2004, a jury convicted Petitioner of three counts of attempted voluntary manslaughter (Cal. Penal Code §§ 664/192, subdivision (a)) in San Diego Superior Court Case No. SCN 160845. The jury also found the attendant great bodily injury enhancement allegations to be true, including the firearm enhancements under California Penal Code section 12022.5, subdivision (a). [Lodgment 1 at 19-21]. The jury also found Petitioner guilty of counts 5-8, and found all attendant allegations to be true. The jury found Petitioner guilty of simple mayhem for count 4 and found all attendant allegations to be true. [Lodgment 1 at 247-264].

On September 14, 2004, Petitioner received a total prison term of sixteen years, which included a term of five years and eight months for the section 12022.5, subdivision (a) enhancements. [Lodgment 7 at *2].

Petitioner appealed his conviction to the California Court of Appeal. [Lodgment 4]. Petitioner raised two claims (which correspond to the claims Petitioner has presented in the current federal Petition): 1) the trial court erred when it instructed the jury on firearm use during the commission of attempted voluntary manslaughter when the charges in the information alleged firearm use during the commission of attempted murder and, 2) the trial court violated California Penal Code section 654 when it imposed a separate term of punishment for mayhem. [Lodgment 4 at 20-34].

On October 5, 2005, the California Court of Appeal denied both of Petitioner's claims and affirmed the judgment in an unpublished opinion. [Lodgment 7].

Petitioner then filed a Petition for Rehearing in the California Court of Appeal. [Lodgment 8]. The court denied rehearing on October 19, 2005. [Lodgment 9].

On November 10, 2005, Petitioner sought a petitioner for review in the California Supreme Court. Petitioner raised the same two claims. [Lodgment 10]. On December 14, 2005, the California Supreme Court denied the petition without comment. [Lodgment 11].

Factual Background*fn1

Petitioner divorced Lisa Miani (Lisa) because he suspected Lisa was having an affair with David Preschern (Preschern). Petitioner and Lisa remained in contact and continued to have a sexual relationship. She repeatedly denied having an affair with Preschern until the night of the shooting.

After she admitted the affair and argued with Petitioner, Lisa went to Preschern's home. Petitioner then went to Preschern's house, waited until Lisa and Preschern were in bed and then fired a rifle several times through the window, wounding Preschern. Lisa ran from the room while Preschern struggled with Petitioner. Preschern and his mother Dorris Preschern (Dorris) ran out of the house toward a truck to go to the hospital. As they were getting into the truck, Petitioner fired, hitting Dorris. Preschern stood up at the passenger side of the truck and looked over the top of the truck at which point Petitioner from a distance of 10 yards shot Preschern in the face. When Petitioner ran out of ammunition, he went to the truck and beat Preschern in the head with the butt of his rifle, and struck Dorris three or four times with the butt of the rifle as she was trying to protect Preschern.

A blood test conducted about four hours after the shooting revealed Petitioner had a blood alcohol level of .05 and 75 nanograms of methamphetamine in his blood. [Lodgment 7 at *1].

Legal Standard

Standard of Review

The instant petition is governed by 28 U.S.C. § 2254(d) which provides as follows:

An application for a writ of habeas corpus on behalf of a person in custody pursuant to the judgment of a State court shall not be granted with respect to any claim that was adjudicated on the merits in State court proceedings unless the adjudication of the claim --

(1) resulted in a decision that was contrary to, or 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.

Under 28 U.S.C. § 2254(a):

The Supreme Court, a Justice thereof, a circuit judge, or a district court shall entertain an application 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 of the United States.

A. Contrary To or Unreasonable Application of Clearly Established Federal Law

In interpreting the provisions of 28 U.S.C. § 2254(d)(1), the Supreme Court has held that the terms "contrary to" and "unreasonable application of" have distinct meanings. A state court's decision is "contrary to" clearly established federal law if it fails to apply the correct controlling authority, or if it applies the correct controlling authority to a case involving facts that are materially indistinguishable from those in a controlling case, but reaches a different result. Williams v. Taylor, 529 U.S. 362, 404 (2000).

A state court's decision is an "unreasonable application" of clearly established federal law if the state court identifies the correct governing legal principle but unreasonably applies that principle to the facts of that case. Williams, 529 U.S. at 413. The "unreasonable application" clause requires the state court decision be objectively unreasonable, not just incorrect or erroneous. Lockyer v. Andrade, 538 U.S. 63, 65 (2003) (citing Williams v. Taylor, 529 U.S. at 409-10, 412).

B. Unreasonable Determination of Facts

Alternatively, a federal court may grant habeas relief where the state court's decision "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)(2). In federal habeas proceedings, a state court's factual determinations are presumptively correct. 28 U.S.C. § 2254(e)(1); Patton v. Yount, 467 U.S. 1025, 1037 n.12 (1984). The petitioner must prove the state court's factual findings were erroneous by clear and convincing evidence. 28 U.S.C. § 2254(e)(1). See also Taylor v. Maddox, 366 F.3d 992, 999 (9th Cir. 2004). Mixed questions of fact and law are reviewed under the "contrary to" and "unreasonable application" clauses in 28 U.S.C. § 2254(d)(1). Lambert v. Blodgett, 393 F.3d 943, 976 (9th Cir. 2004). A state court's factual findings underlying its conclusion on mixed issues are accorded a presumption of correctness. Id.

Discussion

Petitioner raised two grounds in the petition for habeas relief: both relating to improper sentencing by the trial court. In order to obtain federal habeas relief, Petitioner must establish that he is in custody in violation of the laws, treaties, or Constitution of the United States. 28 U.S.C. § 2254(a); Estelle v. McGuire, 502 U.S. 62, 68 (1991). A federal court may not issue a writ based on perceived errors of state law. Pulley v. Harris, 465 U.S. 37, 41 (1984). Furthermore, "errors of state law cannot be repackaged as federal errors simply by citing the Due Process clause." Carson v. Director of Iowa Dep't of Correctional Serv., 150 F.2d 973, 975 (8th Cir. 1998). A federal court is bound by the state court's interpretation of state law. Bains v. Cambra, 204 F.3d 364 (9th Cir. 2000).

Petitioner's argument is that the trial court erred when it sentenced him using firearm enhancements for attempted voluntary manslaughter, which were not charged in the information because the information only alleged firearm use during the commission of attempted murder. Petitioner argues that the firearm enhancement for the attempted manslaughter must have been specifically charged in the information in order for his sentence to be valid. Petitioner relies on a California state case Ex parte , 45 Cal.2d 171, 175 (1955), for the proposition that due process of law requires that the accused be advised of the charges against him in order to have a reasonable opportunity to adequately prepare and present his defense at trial.

Petitioner's argument is flawed. While it is a fundamental notion of due process that the accused be given notice of the charges against him, here the Petitioner was advised of the charges against him. Furthermore, Petitioner fails to realize that his convictions for attempted voluntary manslaughter were a necessarily included offense for the charges of attempted murder and Hess recognized that a person could be convicted of a necessarily included offense even if it was not explicitly charged in the information. Hess, 45 Cal.2d at 175. Here, Petitioner did have adequate notice and a reasonable opportunity to present a full defense at trial. The information did allege firearm enhancements for attempted murder and the jury was instructed and convicted Petitioner of the lesser included offense of attempted manslaughter and made true findings as to the firearm enhancements.

Petitioner's second argument is that the court's imposition of a consecutive term for the mayhem count violated California Penal Code § 654. This claim is grounded solely on an alleged violation of California state law. While Petitioner attempts to characterize the alleged violation of Section 654 as a due process issue, the argument fails because it focuses on the Petitioner's right to notice of the charges against him. Petitioner misconstrues the issue because California Penal Code § 654 deals with a prohibition on multiple punishments for the same act. Because Petitioner's argument is based on state law and state law claims are not cognizable in federal habeas proceedings, it fails to present a question capable of review by this Court.

Because Petitioner has not demonstrated that the issues he raises violate a federal law, treaty or the U.S. Constitution, his Petitioner should be DENIED.

Conclusion

For the reasons set forth above, the Court recommends that the Petition for Writ of Habeas Corpus be DENIED. This report and recommendation will be submitted to the United States District Judge assigned to this case, pursuant to the provisions of 28 U.S.C. § 636(b)(1) (1988). Any written objections to this Report and Recommendation must be filed with the Court and a copy served on all parties on or before March 29, 2007. The document should be captioned "Objections to Report and Recommendation." Any reply to the objections shall be served and filed on or before April 13, 2007. The parties are advised that failure to file objections within the specified time may waive the right to raise those objections on appeal of this Court's order. Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991).

IT IS SO ORDERED.


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