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Smith v. Tilton

July 10, 2007

SCOTT WADE SMITH, PETITIONER,
v.
JAMES E. TILTON,*FN1 SECRETARY, RESPONDENT.



The opinion of the court was delivered by: Marilyn L. Huff, District Judge United States District Court

ORDER ADOPTING REPORT AND RECOMMENDATION AND DENYING PETITION

Petitioner Scott Wade Smith is a state prisoner proceeding pro se. He filed a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254 on October 26, 2005. (Doc. No. 1.) Following an order of dismissal because Petitioner had named the improper defendant, Petitioner filed a first amended petition on December 21, 2005. (Doc. No. 5.) In his petition, Petitioner challenges his conviction in the San Diego Superior Court for committing a lewd act upon a child under the age of 14 following a guilty plea. Respondent filed an answer to the petition on April 4, 2006. (Doc. No. 10.) On May 22, 2006, Petitioner filed a traverse. (Doc. No. 17.) Magistrate Judge Porter issued a Report and Recommendation on October 17, 2006 recommending that the Court deny Petitioner's writ for habeas corpus relief. (Doc No. 18.) Petitioner filed objections to the Report and Recommendation on November 28, 2006. (Doc. No. 21.) Respondent has not filed a reply to Petitioner's objections.

After careful consideration, the Court ADOPTS the Report and Recommendation and DENIES the petition with prejudice.

Background

On September 4, 2002, the San Diego County District Attorney filed a third amended information charging Petitioner with 12 counts. (Lodgment 1 at 21-29.) In counts 1 through 9, Petitioner was charged with committing a lewd act upon a child under the age of fourteen in violation of California Penal Code § 288(a). The victim in those counts was Heather O, the eleven year old daughter of Petitioner's girlfriend. Similarly, counts 11 and 12 charged Petitioner with committing a lewd act upon a child under the age of fourteen in violation of § 288(a). The victim in those two counts was Sierra O., the nine year old daughter of Petitioner's girlfriend. Finally, count 10 charged Petitioner with providing harmful matter with the intent of seducing a minor in violation of California Penal Code § 288.2(a).

With regard to each of the lewd act counts, the information also alleged that: (1) Petitioner had previously been convicted of a violation of Penal Code § 288(b) within the meaning of Penal Code § 667.61(a)(c)(d); (2) Petitioner's crimes involved more than one victim within the meaning of Penal Code § 667.61(b)(c)(e); and (3) Petitioner had previously been convicted of a violation of Penal Code § 288(a) making him a habitual sexual offender within the meaning of Penal Code § 667.71(a). The information also alleged that: (1) Petitioner was previously convicted of a violent felony within the meaning of Penal Code § 667.5(a); (2) Petitioner was previously convicted of two serious felonies within the meaning of Penal Code §§ 667(a)(1), 668, and 1192.7(c); and (3) Petitioner had two "strike priors" pursuant to Penal Code § 667(b) through (i), § 1170.12, and § 668.

On September 5, 2002, Smith pleaded guilty to count one of the information and admitted two prior convictions in return for a dismissal of the remaining counts and a stipulated sentence of 25 years to life. (Lodgment 1 at 65-67 (guilty plea initialed and signed by Petitioner); Lodgment 2 at 33-39 (plea colloquy).)

Petitioner appealed his conviction to the California Court of Appeal. His appointed attorney filed a brief in accord with the procedures set forth in People v. Wende, 25 Cal. 3d 436 (1979). (Lodgment 3.) In the brief, appellate counsel provided the procedural and factual background but raised no specific issues. (Id.) Further, appellate counsel indicated under oath that he had corresponded with Petitioner and advised him that, after reviewing the record, no appealable issues were present in his case. (Id.) He also indicated that he was not requesting to be relieved as counsel, but that he would withdraw upon request by Petitioner. (Id.) Upon receipt of appellate counsel's Wende brief, the Court of Appeal notified Petitioner that he could file any supplemental brief deemed necessary. (Lodgment 4.) Petitioner filed a response in which he stated that he was waiving his right to file a supplemental brief, but wanted to make a record as to why he was waiving his right. (Lodgment 5.) Petitioner claimed that his appellate counsel had the only copy of the trial record, and further, that California's prohibition on raising issues on collateral review that had previously been raised in a direct appeal violated his due process rights. (Id.) Additionally, Petitioner asserted that his appellate counsel was ineffective for filing a Wende brief because he had failed to argue that: (1) Petitioner's guilty plea was coerced; (2) trial counsel was incompetent; (3) the trial court failed to hold an evidentiary hearing or Marsden*fn2 hearing regarding Petitioner's request to withdraw his guilty plea; (4) the guilty plea was not knowing, voluntary, and intelligent; and (5) the factual basis for his plea was insufficient. (Id.) Finally, Petitioner asserted that appellate counsel should have filed a habeas corpus petition in conjunction with the appeal. (Id.) On February 25, 2004, the California Court of Appeal affirmed Petitioner's conviction in a written decision.

(Lodgment 6.) Petitioner did not file a direct appeal in the California Supreme Court.

On March 25, 2004, Petitioner filed a habeas petition in the San Diego Superior Court. (Lodgment 7.) The Superior Court denied the petition in a written opinion on May 26, 2004. (Lodgment 8.) On August 24, 2004, Petitioner filed a habeas corpus petition and request for evidentiary hearing in the California Court of Appeal. (Lodgment 9.) That petition raised the same claims Petitioner raises in his federal habeas corpus petition. (Id.) On September 21, 2004, the Court of Appeal denied the petition in a written decision. (Lodgment 10.) Finally, on October 24, 2004, Petitioner filed a petition seeking habeas corpus in the California Supreme Court raising the same issues he does in his federal petition. (Lodgment 11.) On September 21, 2005, the California Supreme Court denied the petition without citation of authority. (Lodgment 12.)

Petitioner filed his first amended petition in this Court on December 21, 2005.

Standards of Review

A. Standard of Review of Magistrate Judge's Report and Recommendation

The district court "may accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate." 28 U.S.C. § 636(b)(1). If a party objects to any portion of the report, the district court "shall make a de novo determination of those portions of the report . . . to which objection is made." Id. The Court reviews de novo the magistrate judge's conclusions of law. Britt v. Simi Valley Unified School Dist., 708 F.2d 452, 454 (9th Cir. 1983) overruled on other grounds by United States v. Reyna-Tapia, 328 F.3d 1114, 1121-22 (9th Cir. 2003).

B. Scope of Review for 28 U.S.C. § 2254 Petitions

28 U.S.C. § 2254(a) sets forth the following scope of review for federal habeas corpus petitions:

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.

Moreover, this action is governed by the Anti-Terrorism and Effective Death Penalty Act of 1996 ("AEDPA"), Pub. L. No. 104-132, 110 Stat. 1214. Under 28 U.S.C. § 2254(d), as amended by the AEDPA:

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 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.

A state court's decision may be found "contrary to" clearly established Supreme Court precedent: "(1) if the state court applies a rule that contradicts the governing law set forth in [the Court's] cases or (2) if the state court confronts a set of facts that are materially indistinguishable from a decision of [the] Court and nevertheless arrives at a result different from [the Court's] precedent." Williams v. Taylor, 529 U.S. 362, 405-06 (2000). A state court decision may involve an "unreasonable application" of clearly established federal law, "if the state court identifies the correct governing legal rule from [the Supreme] Court's cases but unreasonably applies it to the facts of the particular state prisoner's case." Id. at 407. Alternatively, an unreasonable application may be found "if the state court either unreasonably extends a legal principle from [Supreme Court] precedent to a new context where it should not apply or unreasonably refuses to extend that principle to a new context where it should apply." Id.

"[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 be objectively unreasonable." Lockyer v. Andrade, 538 U.S. 63, 75-76 (2003) (internal quotation marks and citations omitted). "[S]o long as neither the reasoning nor the result of the state-court decision contradicts [Supreme Court precedent,]" the state court decision will not be "contrary to" clearly established federal law. Id.

Habeas relief is also available if the state court's adjudication of a claim "resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in state court." 28 U.S.C. § 2254(d)(2). In order to satisfy this provision, Petitioner must demonstrate that the factual finding upon which the state court's adjudication of his claim rests, assuming it rests on a factual determination, is objectively unreasonable. Miller-El, 537 U.S. at 340 (2003).

Where the state's highest court did not provide a reasoned decision, the district court "looks through" to the underlying appellate court decision. Ylst v. Nunnemaker, 501 U.S. 797, 801-06 (1991). If the dispositive state court order does not "furnish a basis for its reasoning," federal habeas courts must conduct an independent review of the record to determine whether the state court's decision is contrary to, or an unreasonable application of, clearly established Supreme Court law. See Delgado v. Lewis, 223 F.3d 976, 982 (9th Cir. 2000) (overruled on other grounds by Lockyear, 538 U.S. at 75-76); Himes v. Thompson, 336 F.3d 848, 853 (9th Cir. 2003). A state court need not cite to Supreme Court precedent in ruling on a habeas corpus petition. Early v. Packer, 537 U.S. 3, 8 (2002). Indeed, the state court need not even be aware "of [Supreme Court] cases, so long as neither the reasoning nor the result of the state-court decision contradicts them." Id.

Analysis

In his Petition, Smith makes three contentions. First, he alleges that his trial counsel rendered ineffective assistance, which violated his Sixth Amendment right to counsel. Second, Petitioner alleges that the trial court violated his Fourteenth Amendment right to due process and his Sixth Amendment right to a fair trial by failing to ensure that his guilty plea was entered knowingly, voluntarily, and intelligently, by failing to ensure that his guilty plea was supported by a factual basis, by admitting facts of his prior conviction under California Penal Code § 1108, and by failing to address properly his motion to withdraw his guilty plea. Third, Petitioner asserts that his appellate counsel provided ineffective assistance, which violated his Sixth Amendment right to counsel. In response, Respondent contends that the state courts' resolution of Petitioner's claims was neither contrary to, nor an unreasonably application of, clearly established Supreme Court law. Further, Respondent argues that Petitioner's challenge to the validity of his prior conviction is barred.

A. Ineffective Assistance of Trial Counsel Petitioner Challenges his Trial Counsel's Performance on Several Grounds

He raised all of these same arguments in his habeas petition to the California Supreme Court, which denied the claims without citing to authority. (See Lodgments 11, 12.) Accordingly, this Court must look through to the last reasoned state court decision on these issues. Ylst, 501 U.S. at 801-06. Examining the California appellate court opinion, however, that court only addressed Petitioner's claims that his trial counsel was ineffective because he did not challenge the validity of the prior sexual misconduct conviction or the evidentiary ruling finding evidence of the earlier crimes admissible. (Lodgment 10 at 1-2.) As to Petitioner's other claims, the Court must look through to the Superior Court's opinion denying the claims or itself conduct a de novo review of the claims. See Ylst, 501 U.S. at 801-06; Pirtle v. Morgan, 313 F.3d 1160, 1167 (9th Cir. 2002) (holding that "when it is clear that a state court has not reached the merits of a properly raised issue," the federal habeas court must review it de novo.), cert. denied, 539 U.S. 916 (2003).

Pursuant to the Sixth Amendment and the Fourteenth Amendment Due Process Clause, a person accused of a state or federal crime has the right to the assistance of counsel to ensure a fair trial, and "the right to counsel is the right to the effective assistance of counsel." Strickland v. Washington, 466 U.S. 668, 686 (1984) (quoting McMann v. Richardson, 397 U.S. 759, 771 n.14 (1970)). In Strickland, the Supreme Court set forth a two-part test for evaluating ineffective assistance of counsel claims. First, "the defendant must show that counsel's representation fell below an objective standard of reasonableness." Id. at 688. Second, "any deficiencies in counsel's performance must be prejudicial to the defense in order to constitute ineffective assistance under the Constitution." Id. at 692. "Even if a defendant shows that particular errors of counsel were unreasonable, therefore, the defendant must show that they actually had an adverse effect on the defense." Id. at 693.

When assessing counsel's performance pursuant to the first prong of the Strickland test, courts must be "highly deferential" and "indulge a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance." Id. at 689. Courts must not second-guess counsel's trial strategy, as "[e]ven the best criminal defense attorneys would not defend a particular client in the same way." Strickland, 466 U.S. at 689. When challenging counsel's performance in the context of a guilty plea, a petitioner can only establish prejudice by showing "a reasonable probability that, but for counsels' errors, he would not have pleaded guilty and would have insisted on going to trial." Hill v. Lockhart, 474 U.S. 52, 59 (1985).

1. Failure to Challenge the Prior Molestation Conviction

Petitioner argues that his trial counsel should have challenged the validity and admissibility in his later trial of Petitioner's prior sexual misconduct conviction. Petitioner was convicted in 1987 on one count of committing a lewd act upon a child under the age of fourteen in violation of California Penal Code § 288(a) and on one count of committing a forcible lewd act upon a child younger than fourteen years old in violation of California Penal Code § 288(b). (Lodgment 1 at 80.) The victim in the 1987 case was Sarah O., the seven year old daughter of Petitioner's girlfriend at the time. (Id. at 55.) The prosecutor in Petitioner's current case intended to introduce the facts surrounding the prior conviction through the testimony of Sarah O. pursuant to California Evidence Code § 1108(a), which allows the prosecution to introduce evidence of prior sexual offenses as long as the evidence is more probative than prejudicial under California Evidence Code § 352. (Lodgment 2 at 1-2.)

Petitioner's attorney objected to the admissibility of this evidence on several grounds, including that he could not cross examine Mary Staples, the detective to whom Sarah O. first made the abuse allegations. (Lodgment 2 at 5-8.) Sarah O. initially denied that Petitioner molested her, but after Staples visited her in foster care, took her out to lunch, and bought her a toy tea set in an attempt to gain her confidence, Sarah O. told Staples that Petitioner had molested her. (Id.) Sarah O. also later disclosed the molestation to a Child Protective Services employee, Terry Cavanaugh, during videotaped interviews. (Id. at 8.) Petitioner's trial counsel attempted to obtain the videotapes, but they could not be located. (Id. at 7.) Petitioner's counsel also tried to subpoena Staples, but she could not testify because she suffered a stroke or similar medical condition that left her unable to speak. (Id. at 7-8.) Petitioner's counsel argued that the evidence was inadmissible because it was more prejudicial than probative and because he would not be able to effectively cross examine on these issues. (Id. at 8.)

The prosecutor argued that Petitioner had suffered no prejudice from the absence of Staples and the videotape because the defense would be able to present the impeachment evidence to the jury through the testimony of Cavanaugh, who also interviewed Sarah O. and was aware that she denied the molestation at first. (Id. at 8-9.) Further, Cavanaugh would be subject to cross examination regarding his interview of Sarah O., and the prosecution agreed to stipulate to everything contained in Staples' report and to Staples' purchase of the tea set for Sarah O. (Id.)

The trial judge ruled that the evidence was admissible. (Id. at 10-11.) The judge noted that the prosecutor agreed to accept everything contained in Staples' report, that Sarah O.'s proposed testimony was less severe than that to be presented by other witnesses regarding Petitioner's present case, and that the prior acts were not too remote in time, especially given that Petitioner spent a large portion of the time since his last conviction in prison. (Id.) Petitioner alleges that his trial counsel was ineffective in several ways.

a. Failure to File Discovery Motions Regarding Exculpatory or Impeachment Evidence

Petitioner argues that his trial counsel should have filed a motion pursuant to Pitchess v. Superior Court, 11 Cal. 3d 531 (1974), and Brady v. Maryland, 373 U.S. 83, 87 (1963), to discover any exculpatory or impeachment evidence that "reasonably may exist" showing that Staples previously bribed or coerced victims to falsely claim sexual abuse. Petitioner asserts that this evidence would have allowed him to cast doubt on the validity of his prior conviction for molesting Sarah O., which consequently would have provided a stronger defense to the current charges. The state appellate court did not address this claim in its opinion denying habeas relief. (See Lodgment 10.) Accordingly, looking through to the Superior Court's decision, that court denied the claim, citing Garcia v. Superior Court, 14 ...


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