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Hill v. Hartley

December 23, 2008

WAYNE E. HILL, PETITIONER,
v.
JAMES D. HARTLEY, ET AL., RESPONDENTS.



The opinion of the court was delivered by: Gregory G. Hollows United States Magistrate Judge

ORDER

I. Introduction

Petitioner is a state prisoner proceeding pro se with a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254. Petitioner challenges his 2006 conviction for two counts of second degree burglary (Cal. Penal Code § 459), two counts of forgery (Cal. Penal Code § 475(c)), and two counts of identity theft (Cal. Penal Code § 530.5(a)). The jury also found true allegations that petitioner had suffered four prior convictions within the meaning of Cal. Penal Code § 667.5(b) and one prior conviction within the meaning of Cal. Penal Code § 667(b)-(I). Petitioner is serving a sentence of 9 years and 4 months.

This action is proceeding on the original petition filed June 2, 2008, which raises the following claims: 1) the trial court erred in admitting hearsay to prove prior felony convictions; 2) insufficient evidence of the prior conviction; 3) trial court erred in refusing to allow defense to introduce hearsay to prove that petitioner had not personally inflicted great bodily injury in commission of his prior conviction.

In his October 3, 2008, reply to respondent's answer, petitioner raised two claims that were not raised in the original petition: ineffective assistance of counsel and error pursuant to Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348 (2000). On November 20, 2008, the court issued an order stating that it did not appear that these two claims were exhausted. The court ordered petitioner to inform the court whether he wished to proceed with the claims or abandon the claims. The court advised petitioner that if he chose to proceed with the unexhausted claims, he must file an amended petition containing all of his claims and a motion for abeyance pending exhaustion addressing the factors set forth in Rhines v. Weber, 544 U.S. 269, 125 S.Ct. 1528 (2005).

On December 10, 2008, petitioner filed a letter with the court stating that he wanted to abandon his unexhausted claims. Accordingly, the court will consider only the exhausted claims raised in the petition.

After carefully considering the record, the court orders that the petition is granted in part and denied in part.

II. Anti-Terrorism and Effective Death Penalty Act (AEDPA)

The Antiterrorism and Effective Death Penalty Act (AEDPA) applies to this petition for habeas corpus which was filed after the AEDPA became effective. Neelley v. Nagle, 138 F.3d 917 (11th Cir.), citing Lindh v. Murphy, 521 U.S. 320, 117 S.Ct. 2059 (1997). The AEDPA "worked substantial changes to the law of habeas corpus," establishing more deferential standards of review to be used by a federal habeas court in assessing a state court's adjudication of a criminal defendant's claims of constitutional error. Moore v. Calderon, 108 F.3d 261, 263 (9th Cir. 1997).

In Williams (Terry) v. Taylor, 529 U.S. 362, 120 S.Ct. 1495 (2000), the Supreme Court defined the operative review standard set forth in § 2254(d). Justice O'Connor's opinion for Section II of the opinion constitutes the majority opinion of the court. There is a dichotomy between "contrary to" clearly established law as enunciated by the Supreme Court, and an "unreasonable application of" that law. Id. at 1519. "Contrary to" clearly established law applies to two situations: (1) where the state court legal conclusion is opposite that of the Supreme Court on a point of law, or (2) if the state court case is materially indistinguishable from a Supreme Court case, i.e., on point factually, yet the legal result is opposite.

"Unreasonable application" of established law, on the other hand, applies to mixed questions of law and fact, that is, the application of law to fact where there are no factually on point Supreme Court cases which mandate the result for the precise factual scenario at issue. Williams (Terry), 529 U.S. at 407-08, 120 S.Ct. at 1520-1521 (2000). It is this prong of the AEDPA standard of review which directs deference to be paid to state court decisions. While the deference is not blindly automatic, "the most important point is that an unreasonable application of federal law is different from an incorrect application of law....[A] federal habeas court may not issue the writ simply because that court concludes in its independent judgment that the relevant state-court decision applied clearly established federal law erroneously or incorrectly. Rather, that application must also be unreasonable." Williams (Terry), 529 U.S. at 410-11, 120 S.Ct. at 1522 (emphasis in original). The habeas corpus petitioner bears the burden of demonstrating the objectively unreasonable nature of the state court decision in light of controlling Supreme Court authority. Woodford v. Viscotti, 537 U.S. 19, 123 S.Ct. 357 (2002).

The state courts need not have cited to federal authority, or even have indicated awareness of federal authority in arriving at their decision. Early v. Packer, 537 U.S. 3, 123 S.Ct. 362 (2002). Nevertheless, the state decision cannot be rejected unless the decision itself is contrary to, or an unreasonable application of, established Supreme Court authority. Id. An unreasonable error is one in excess of even a reviewing court's perception that "clear error" has occurred. Lockyer v. Andrade, 538 U.S. 63, 75-76, 123 S.Ct. 1166, 1175 (2003). Moreover, the established Supreme Court authority reviewed must be a pronouncement on constitutional principles, or other controlling federal law, as opposed to a pronouncement of statutes or rules binding only on federal courts. Early v. Packer, 537 U.S. at 9, 123 S.Ct. at 366.

However, where the state courts have not addressed the constitutional issue in dispute in any reasoned opinion, the federal court will independently review the record in adjudication of that issue. "Independent review of the record is not de novo review of the constitutional issue, but rather, the only method by which we can determine whether a silent state court decision is objectively unreasonable." Himes v. Thompson, 336 F.3d 848, 853 (9th Cir. 2003).

The California Court of Appeal was the last state court to issue a reasoned opinion addressing the claims. See Respondent's Lodged Documents 1 and 3. Accordingly, the court considers whether the denial of the claims by the California Court of Appeal was an unreasonable application of clearly established Supreme Court authority.

III. Discussion

A. Background

The California Court of Appeal denied petitioner's claims as follows: Defendant's prior conviction was for assault by means of force likely to cause great bodily injury. (Pen.Code, § 245, subd. (a)(1); further section references are to the Penal Code unless otherwise specified.) In order for the crime to have been a serious felony (strike) within the meaning of the three strikes law, defendant must have personally inflicted great bodily injury on the victim or used a deadly weapon. (§ 1192.7, subds.(c)(8), (c)(23); People v. Banuelos (2005) 130 Cal.App.4th 601, 605.)

To prove the strike allegation, the People introduced the transcript of defendant's plea of guilty to violating section 245, subdivision (a)(1) in 1988. The transcript shows that as the factual basis for the plea, the prosecutor stated, and defense counsel in the 1988 proceeding agreed: "[O]n the date specified in the Information in the County of Sacramento, the defendant had an altercation with the victim in this case, one Cynthia D[.] During that altercation, Mr. Hill flipped the victim over his back causing her to break her leg." Defendant made no objection to this factual basis before pleading guilty to assault by means of force likely to cause great bodily injury.

The transcript of defendant's plea in 1988 was allowed into evidence over the objection of his defense counsel in this case, which occurred in 2006. According to defense counsel, the factual basis stated for the plea in 1988 was inadmissible hearsay and its introduction violated defendant's right to confront evidence against him. Overruling the objection, the trial court found that defendant's plea of guilty after recitation of the factual basis for the plea constituted an adoptive admission of that factual basis.

As he did in the trial court, defendant argues the factual basis stated for his plea in 1988 should have been excluded as inadmissible hearsay. We disagree.

Evidence Code section 1221 provides that "[e]vidence of a statement offered against a party is not made inadmissible by the hearsay rule if the statement is one of which the party, with knowledge of the content thereof, has by words or other conduct manifested his adoption or his belief in its truth."

Thus, in People v. Sohal (1997) 53 Cal.App.4th 911 (hereafter Sohal ), this court held that when a defendant enters a plea of guilty following a recitation of "the factual basis for the plea as stated by the prosecutor with which defense counsel agree[s]," the defendant makes "an adoptive ...


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