Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Simonton v. Evans

November 10, 2008

JAMES ALLEN SIMONTON, PETITIONER,
v.
M. EVANS, RESPONDENT.



The opinion of the court was delivered by: Hon. Napoleon A. Jones, Jr. United States District Judge

ORDER:

1) ADOPTING MAGISTRATE JUDGE PAPAS' REPORT AND RECOMMENDATION;

2) DENYING PETITION FOR WRIT OF HABEAS CORPUS

Before the Court is Petitioner James Allen Simonton's ("Petitioner") Petition for Writ of Habeas Corpus (the "Petition") pursuant to 28 U.S.C. § 2254. [Doc. No. 1.] Magistrate Judge Leo S. Papas filed a Report and Recommendation ("R&R") recommending that the Court deny the Petition. [Doc. No. 15.] For the reasons set forth below, this Court ADOPTS the R&R and DENIES the Petition in its entirety.

I. Introduction

Petitioner, a California prisoner proceeding pro se, filed the Petition on March 8, 2007. [Doc. No. 1.] Petitioner raises eight grounds for relief: (1) his due process rights were violated when the trial court improperly instructed the jury; (2) his due process rights were violated by the admission of certain expert testimony; (3) his due process rights were violated because there was insufficient evidence to support convictions on counts 8 and 9; (4) his due process rights were violated because he was tried before a biased judge; (5) his due process rights were violated by the prosecutor's misconduct; (6) his Sixth Amendment right to effective assistance of counsel was violated by both trial and appellate counsel; (7) his due process rights were violated because his convictions for counts 6 and 7, and his convictions for counts 8 and 9, were multiplicitous; and (8) his due process rights were violated by the admission of evidence of uncharged acts and the testimony of one of the victims. [See Petition at 6-8.]*fn1

Magistrate Judge Leo S. Papas filed an R&R recommending that Grounds One, Five, Seven and Eight be dismissed as procedurally barred from federal habeas review. [Doc. No. 17.] The R&R further recommended that Grounds Two, Three, Four and Six be denied on the merits. [Id.] Petitioner timely filed an Objection to the R&R. [Doc. No. 23.] Respondent has not filed a Reply.

The Court has considered all the supporting documents submitted by the parties. Based upon the documents and the evidence presented in this case, and for the reasons set forth below, the Court DENIES the petition.

II. Background

On June 14, 2001, the San Diego County District Attorney's Office filed an Information charging Petitioner with six counts of lewd act upon a child (Cal. Penal Code § 288(a)), one count of attempted lewd act upon a child (Cal. Penal Code §§ 288(a) and 664), and two counts of annoying or molesting a child (Cal. Penal Code § 667.6(a)). It was further alleged that Petitioner had previously been convicted of two serious felony priors (Cal. Penal Code §§ 667(a)-(I), 668 and 1192(c)) and had suffered two prior strike convictions (Cal. Penal Code §§ 667(b)-(I), 1170.12 and 668.) [Lodgment No. 1 at 1-5].

On November 7, 2001, a jury found Petitioner guilty of six counts of lewd act upon a child, and two counts of annoying or molesting a child. Petitioner was acquitted of Count Five, attempted lewd act upon a child. [See id. at 136-44.] The court found true one serious felony prior conviction (Cal. Penal Code §§ 647.6(a), 1192.7(c)), and two prior strike convictions (Cal. Penal Code §§ 667(b)-(i), 1170.2, 668.) The court struck the strikes and sentenced Petitioner to 36 years to life in prison. [Lodgment No. 1 at 184-87.]

Petitioner appealed to the California Court of Appeal, Fourth Appellate District, Division One. Lodgment No. 3.] On appeal, Petitioner argued that (1) the trial court violated his right to due process by permitting the admission of two prior bad acts; (2) the trial court violated his constitutional right to a defense by allowing irrelevant expert testimony; (3) evidence was insufficient to support his convictions for annoying or molesting a child (counts Eight and Nine, in violation of his due process rights; and (4) the cumulative effect of the errors required reversal. [See generally Lodgment No. 3.] On June 10, 2003, the appellate court affirmed Petitioner's conviction in an unpublished opinion. [Lodgment No. 6.]

On July 14, 2003, Petitioner filed a petition for review in the California Supreme Court. [Lodgment No. 7.] The court denied the petition without comment on August 13, 2003. [Lodgment No.

On August 2, 2004, Petition filed a petition for habeas corpus in the San Diego Superior Court, raising eleven claims. [Lodgment No. 9.] The court denied the petition in a reasoned decision on September 14, 2004. [Lodgment No. 10.] On October 17, 2004, Petitioner filed a petition for rehearing of the denial of his Superior Court habeas petition. [Lodgment Nos. 12, 13.] The petition was denied on December 1, 2004. [Lodgment No. 14.] On December 27, 2004, Petitioner filed a petition for writ of mandate with the California Court of Appeal, raising the same arguments presented in his petition for rehearing. [Lodgment No. 14.] The petition was denied without comment on February 9, 2005. [Lodgment No. 16.] The petition was denied without comment on February 9, 2005. [Lodgment No.

On March 7, 2005, Petitioner filed a petition for habeas corpus with the California Court of Appeal. [Lodgment No. 17.] In his petition, Petitioner raised ten claims: (1) his right to due process was violated because newly discovered evidence showed that the victim had given false testimony; (2) the trial court improperly instructed the jury; (3) the trial court admitted improper expert testimony; (4) the court of appeal improperly assigned sexual intent to the conduct in order to affirm the convictions under California Penal Code section 647.6(a); (5) the prosecutor committed misconduct throughout the trial, depriving him of his right to a fair trial; (6) the trial court improperly admitted evidence of prior bad acts; (7) trial counsel was ineffective; (8) appellate counsel was ineffective; (9) counts Six and Seven and counts Eight and Nine were multiplicitous; and (10) the trial judge was biased. [See Lodgment No. 17.]

On June 23, 2005, Respondent filed an informal response to the petition. [Lodgment No. 18.] Petitioner filed a reply on July 19, 2005. [Lodgment No. 19.] On July 20, 2005, the Court of Appeal issued an Order to Show Cause. [Lodgment No. 20.] Respondent filed a Return on September 29, 2005. [Lodgment No. 21.] Petitioner filed a Traverse on December 16, 2005. [Lodgment No. 22.] On December 16, the Court of Appeal ordered an evidentiary hearing. [Lodgment No. 23.] Specifically, the appellate court ordered the superior court to make findings of fact regarding Petitioner's judicial bias claim. [Id.]

The evidentiary hearing was held on May 16 and 17, 2006. [See Lodgment No. 24.] The referee issued a report of the proceedings on May 30, 2005. [Lodgment No. 25.] On October 4, 2005, the California Court of Appeal denied Petitioner's habeas petition in a reasoned decision. [Lodgment No.

On November 13, 2006, Petitioner filed a petition for review in the California Supreme Court. In the petition, Petitioner raised the same basic claims as those contained in his petition before the court of appeal. However, in the petition for review, each claim raised a constitutional violation. [See Lodgment No. 28.] The California Supreme Court denied the petition without comment or citation on January 3, 2007. [Lodgment No. 29.]

On March 8, 2007, Petitioner filed the instant Petition [Doc. No. 1], Respondent filed an Answer on July 6, 2007 [Doc. No. 9], and Petitioner filed a Traverse on August 30, 2007 [Doc. No. 15.]

III. Legal Standard

State Prisoner Habeas Corpus Standard A federal court may grant a habeas petition if the applicant is in custody "in violation of the Constitution or other laws or treaties of the United States." 28 U.S.C. § 2254(a). State interpretation of state laws and rules cannot serve as the basis for a federal habeas petition, as no federal or constitutional questions would be implicated. Estelle v. McGuire, 502 U.S. 62, 68 (1991). Habeas petitions are governed by the provisions of the 1996 Antiterrorism and Effective Death Penalty Act ("AEDPA"). Pursuant to AEDPA, a federal court may grant habeas corpus relief from a state court judgment only if the adjudication was (1) contrary to, or involved an unreasonable application of, clearly established federal law, or (2) was based on an unreasonable determination of the facts in light of the evidence presented in the state court proceedings. 28 U.S.C. § 2254(d); Early v. Packer, 537 U.S. 3, 7-8 (2002).

A state-court decision is "contrary to clearly established federal law" if it (1) applies a rule that contradicts the governing law set forth in Supreme Court cases, or (2) confronts a set of facts that are materially indistinguishable from a decision of the Supreme Court and nevertheless arrives at the opposite result. Williams v. Taylor, 529 U.S. 362, 405 (2000). A state-court decision is an unreasonable application of the facts "if the state court identifies the correct governing legal principle from [the Supreme Court's] decisions but unreasonably applies that principle to the facts of the prisoner's case." at 413.

Reviewing a Magistrate Judge's R&R

The duties of the district court in connection with a magistrate judge's R&R are set forth in Rule 72(b) of the Federal Rules of Civil Procedure and 28 U.S.C. § 636(b)(1) (2005). The district court must "make a de novo determination of those portions of the report . . . to which objection is made," and "may accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate judge." 28 U.S.C. § 636(b)(1) (2005); see also United States v. Raddatz, 447 U.S. 667, 676 (1980). "When no objections are filed, the district court may assume the correctness of the magistrate judge's findings of fact and decide the motion on the applicable law." Johnson v. Nelson, 142 F. Supp. 2d 1215, 1217 (S.D. Cal. 2001). "Under such circumstances, the Ninth Circuit has held that 'a failure to file objections only relieves the trial court of its burden to give de novo review to factual findings; conclusions of law must still be reviewed de novo.'" Id. (quoting Barilla v. Ervin, 886 F.2d 1514, 1518 (9th Cir. 1989)). In this case, Petitioner filed an objection to the R&R. [Doc. No. 23.] Accordingly, this Court will make de novo determinations of factual findings as to those portions of the R&R to which objections have been made.

IV. Petitioner's Objections

Because Petitioner has filed objections to the R&R, the Court must conduct a de novo review of the portions of the R&R to which objections were made. Here, Petitioner first objects to the Magistrate's finding that Grounds One (his due process rights were violated when the trial court improperly instructed the jury), Five (his due process rights were violated by the prosecutor's misconduct), Seven (his due process rights were violated because his convictions for counts 6 and 7, and his convictions for counts 8 and 9, were multiplicitous), and Eight (his due process rights were violated by the admission of evidence of uncharged acts and the testimony of one of the victims) are procedurally barred. [Doc. No. 23.] Second, Petitioner objects to the Magistrate's finding that Grounds Two (his due process rights were violated by the admission of certain expert testimony), Three (his due process rights were violated because there was insufficient evidence to support convictions on counts 8 and 9), Four (his due process rights were violated because he was tried before a biased judge), and Six (his Sixth Amendment right to effective assistance of counsel was violated by both trial and appellate counsel) should be denied on the merits. [Id.]

V. Discussion

In his Traverse, Petitioner "admits Grounds One, Five and Seven are procedurally barred." [Answer at 14-18.] However, Petitioner asserts that Grounds Two, Three, Four, Six and Eight are not barred. [Id.] Specifically, Petitioner argues that his due process rights were violated when the trial court improperly permitted certain expert testimony. [Pet. at 7.] Petitioner also claims that there was insufficient evidence to support his conviction under counts eight and nine for annoying or molesting a child under California Penal Code section 647.6(a). [Lodgment No. 6.] In his next claim, Petitioner argues his due process rights were violated by judicial bias. [Pet. at 9.] In his objection to the R&R, Petitioner contends that Grounds One, Five, Seven and Eight are not procedurally barred, and argues against the magistrate's recommendation that Grounds Two, Three, Four and Six be denied on the merits. [Doc. No. 23.]

Respondent argues that Grounds One, Three, Five, Seven and Eight are procedurally barred. [Answer at 10-18.] Respondent also argues that each claim should be denied on the merits because the state court's decision was neither contrary to, nor an unreasonable application of, clearly established law, and did not involve an unreasonable application of the facts. [See Answer at 19-39.]

Petitioner first raised these claims on direct appeal before the California Court of Appeal, which affirmed the judgment of the state trial court in an unpublished written opinion. [Lodgment No. 6.] The California Supreme Court denied review without citation of authority. [Lodgment No. 8.] Thus, the Court must "look through" to the decision of the California Court of Appeal as the basis for its analysis. See Ylst v. Nunnemaker, 501 U.S. 797, 801-06 (1991).

Procedural Defaults

Respondent argues that Grounds One, Three, Five, Seven and Eight are procedurally barred under the contemporaneous objection rule and the Dixon rule, and that Claim Three is barred under the Waltreus rule. [Answer at 11-18.] Though he "admits that Grounds One, Five and Seven are procedurally barred," Petitioner asserts that Grounds Three and Eight are not barred. [Traverse at 13.]

"The procedural default doctrine 'bar[s] federal habeas when a state court declines to address a prisoner's federal claims because the prisoner has failed to meet a state procedural requirement.'" Calderon v. United States District Court (Bean), 96 F.3d 1126, 1129 (9th Cir. 1996) (quoting Colemen v. Thompson, 501 U.S. 722, 729 (1991)). The doctrine "'is a specific application of the general adequate and independent state grounds doctrine.'" Bean, 96 F.3d at 1129 (quoting Wells v. Maass, 28 F.3d 1005, 1008 (9th Cir. 1994)). Under the adequate and independent state grounds doctrine, federal courts "'will not review a question of federal law decided by a state court if the decision of that court rests on a state law ground that is independent of the federal question and adequate to support the judgment." Bean, 96 F.3d at 1129 (quoting Coleman, 501 U.S. at 729); see also Hill v. Roe, 298 F.3d 796, 798 (9th Cir. 2002); LaCrosse v. Kernan, 244 F.3d 702, 704 (9th Cir. 2001); Park v. California, 202 F.3d 1146, 1151 (9th Cir. 2000). The state procedural rule must be clear and "well established at the time of the petitioner's purported default." Bean, 96 F.3d at 1129 (quoting Wells, 28 F.3d at 1010).

The burden of proving procedural default belongs to the state. Bennett v. Mueller, 322 F.3d 573, 586 (9th Cir. 2003). If the state meets this burden, federal review of the claim is foreclosed unless the petitioner can "demonstrate cause for the default and actual prejudice as a result of the alleged violation of federal law, or demonstrate that failure to ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.