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Thompson v. Kernan

July 11, 2008

TRAVIS RAY THOMPSON, PETITIONER,
v.
SCOTT KERNAN AND BILL LOCKYER, RESPONDENTS.



The opinion of the court was delivered by: Irma E. Gonzalez, Chief Judge United States District Court

ORDER: 1) ADOPTING THE REPORT & RECOMMENDATION OF THE MAGISTRATE JUDGE; (Doc. No. 26) (2) REJECTING PETITIONER'S OBJECTIONS; (Doc. No. 33) (3) DENYING THE PETITION; (Doc. No. 6) and (4) DENYING CERTIFICATE OF APPEALABILITY.

Petitioner Travis Ray Thompson ("petitioner"), a state prisoner proceeding pro se, has filed a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254. His petition challenges his July, 2003 convictions for assault by a prisoner and possession of a weapon by a prisoner. Petitioner raises six claims: (1) he received ineffective assistance of appellate counsel; (2) the court denied him due process of law by failing to instruct on his entrapment defense; (3) the prosecutor committed misconduct by failing to turn over material exculpatory information; (4) the political influence of the correction officers' union rendered his trial fundamentally unfair; (5) he is actually innocent; and (6) the trial court violated his right to counsel by forcing him to represent himself.

The Court referred this matter to United States Magistrate Judge Ruben B. Brooks pursuant to 28 U.S.C. § 636(b)(1)(B). On January 25, 2008, Magistrate Judge Brooks issued a Report and Recommendation ("Report") recommending the Court deny the petition. (Doc. No. 26.) After receiving an extension of time, petitioner filed objections to the Report on April 9, 2008. (Doc. No. 33.)

Following de novo review of petitioner's claims, the Court finds Magistrate Judge Brooks's Report to be thorough, complete, and an accurate analysis of the legal issues presented in the petition. For the reasons explained below, the Court: (1) adopts in full Magistrate Judge Brooks's Report; (2) rejects the petitioner's objections; (3) grants respondents' motion to dismiss the petition; and (4) denies a certificate of appealability.

BACKGROUND

Factual Background

The Court hereby incorporates by reference the magistrate judge's accurate recitation of the facts as determined by the California Court of Appeal. (Report at 3-5.) As the magistrate judge correctly noted, the Court presumes state court findings of fact to be correct. In summary, the underlying events took place while petitioner was incarcerated at Centinela State Prison. Petitioner stabbed Correctional Officer Leopoldo Vega from behind with a prisoner-made weapon on August 21, 1999. Petitioner then choked the guard assigned to escort him to administrative segregation, Correctional Officer Nicole Panzer. Petitioner testified at trial and admitted stabbing Vega and choking Panzer. He claimed he was provoked into attacking Vega because Vega was systematically denying him and other African-American inmates showers. He also claimed Panzer struck him first and he acted in self-defense.

State Procedural Background

By information on October 25, 2000, the state charged petitioner with six counts stemming from the Vega and Panzer incidents. After a trial on the question of his competency to stand trial, the jury found him competent. Petitioner moved several times to remove his appointed counsel and represent himself, and on July 11, 2002, the court granted petitioner's motion, but appointed stand-by counsel. The guilt phase of petitioner's jury trial began June 16, 2003. On June 30, 2003, the jury found petitioner guilty on all counts except for one count of battery against Panzer. The jury trial on petitioner's sanity began on June 30, 2003, and on July 3, 2003, the jury found he was sane when he committed the assault on Vega and possessed the weapon. The jury could not reach a verdict as to his sanity during his attack on Panzer, and the court declared a mistrial on those counts. At a bench trial on July 3, 2003, the court found petitioner had two previous convictions for serious felonies. The court applied California's Three Strikes Law and sentenced petitioner to twenty-five years to life with the possibility of parole.

Petitioner appealed his convictions, but his court-appointed attorney did not raise any of the grounds raised in this federal petition. (Lodgment 3.) The California Court of Appeal affirmed petitioner's conviction in an unpublished decision filed January 26, 2005. (Lodgment 6.) Petitioner filed a petition for review in the California Supreme Court, which was denied without citation of authority on April 13, 2005. (Lodgments 7 & 8.)

Petitioner filed a petition for writ of habeas corpus in Superior Court, which the court denied in a brief, unpublished written opinion on March 24, 2005. (Lodgments 9 & 10.) Petitioner then filed a habeas corpus petition in the California Court of Appeal, which the court denied on June 20, 2005. (Lodgments 11 & 12.) The California Supreme Court denied his petition for habeas corpus without comment on August 30, 2006. (Lodgment 14.) Petitioner's state habeas petitions included most of the claims raised in his federal petition, but did not raise his claims of actual innocence or fundamental unfairness of his trial due to the union's political influence.

Federal Procedural Background

Petitioner filed a petition for writ of habeas corpus in this court on October 13, 2006. (Doc. No. 1.) The Court dismissed the petition without prejudice on November 14, 2006 for failure to name a proper respondent. (Doc. No. 4.) Petitioner filed an amended petition on December 26, 2006. (Doc. No. 6.) On April 2, 2007, respondents filed an answer to the petition. (Doc. No. 16.) Petitioner filed a traverse nunc pro tunc to June 8, 2007. (Doc. No. 20.) On January 25, 2008, Magistrate Judge Brooks issued a Report recommending the Court deny the petition. (Doc. No. 26.) Petitioner filed objections on April 9, 2008. (Doc. No. 33.)

DISCUSSION

A. Legal Standards

The magistrate judge set forth the appropriate standard of review with regard to the petition. (Report at 8-10.) Where, as here, the California Supreme Court summarily denied petitioner's habeas corpus petition, the Court "looks through" to the underlying appellate court decision. Ylst v. Nunnemaker, 501 U.S. 797, 803-04 (1991); Medina v. Hornung, 386 F.3d 872, 877 (9th Cir. 2004). Because the dispositive state court order does not "furnish a basis for its reasoning," the court must conduct an independent review of the record to determine whether the state court's decision was either "contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States," or "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); Williams v. Taylor, 529 U.S. 362, 403, 412-13 (2000).

Petitioner has objected to the Report in its entirety. The Court therefore reviews the Report de novo. 28 U.S.C. § 636(b)(1)(C); Holder v. Holder, 392 F.3d 1009, 1022 (9th Cir. 2004).

B. "Political" and Entrapment Defenses

Petitioner argues the trial court violated his due process rights by refusing to instruct the jury on his primary defense of entrapment and/or political motivations behind the charges. Petitioner claims the guards intentionally provoked his assault in order to increase the statistics regarding violence in prison and thus increase the political power of the correction officers' union. The trial court instructed the jury on self-defense, but did not instruct the jury on entrapment or a "political" defense.

1. Magistrate Judge's Report

The magistrate judge identified the clearly-established law regarding failure to instruct the jury on a defense theory. Due process of law requires trial courts to instruct the jury on a defense theory if it is "legally sound and evidence in the case makes it applicable." Beardslee v. Woodford, 358 F.3d 560, 577 (9th Cir. 2004). In California, an entrapment defense requires the defendant to prove governmental involvement in creating the criminal activity and that "the conduct of the law enforcement agents or officers would likely induce a normally law-abiding person to commit the crime." People v. Barraza, 23 Cal. 3d 675, 689-90 (1979). Petitioner, a prison inmate incarcerated for carjacking and assault with a firearm, was not a normally law-abiding citizen.*fn1 Moreover, petitioner claimed his attack was provoked by Vega's discriminatory shower policy, which ...


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