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Goddard v. Kernan

February 2, 2009

ROBERT GODDARD, PETITIONER,
v.
SCOTT K. KERNAN, WARDEN, ET AL., RESPONDENTS.



The opinion of the court was delivered by: James P. Hutton United States Magistrate Judge

REPORT AND RECOMMENDATION TO DENY WRIT OF HABEAS CORPUS

BEFORE THE COURT is a Petition under 28 U.S.C. § 2254 for Writ of Habeas Corpus by a person in state custody (Ct. Rec. 1), Respondent's Answer (Ct. Rec. 13), Petitioner's Traverse (Ct. Rec 18), Respondent's Amended Answer (Ct. Rec. 21), and Petitioner's Amended Traverse (Ct. Rec. 23). Petitioner is represented by counsel Scott L. Tedmon and Respondent is represented by Deputy Attorney General Justain P. Riley. This matter was heard without oral argument. After careful review and consideration of the pleadings submitted, it is recommended that the Petition for Writ of Habeas Corpus be denied.

At the time his petition was filed, Petitioner was in custody in Vacaville, California, pursuant to his 2004 Yolo County conviction for inflicting corporal injury on a former cohabitant, with an enhancement for causing great bodily injury. (Ct. Rec. 1, attachment 12(a) at 3, Lodged Document 1.) Petitioner, represented by counsel, pleaded no contest to the charge and admitted the great bodily injury enhancement on August 30, 2004. (Lodged Document 18.) On October 18, 2004, the court accepted the parties' plea agreement and imposed a sentence consistent with the agreement. Petitioner challenges the effectiveness of trial counsel. (Ct. Rec. 1.)

I. BACKGROUND

A. Factual History

The parties stipulated that the transcript of the preliminary hearing could serve as the factual basis for Mr. Goddard's plea. (Lodged Document 18 at 7-8.) At the hearing, victim Heather Johnson testified that she lived with Mr. Goddard on and off for about a year. (Lodged Document 14 at 5.)

Her mother, Karen Johnson, testified to the events that occurred on September 25, 2003:

Q: About how many times did Heather try and get in the middle and Mr. Goddard threw her to the side?

A: About three or four times.

Q: Did Mr. Goddard do anything else to Heather?

A: He struck her in the jaw and broke it.

Q: How did that happen?

A: They were towards the sidewalk and the lawn, and she was facing him, and he struck her, and she fell straight down to the ground. (Lodged Document 14 at 44-45.)

Woodland Police Department Officer Darren Imus testified: Q: Okay, did you observe Heather Johnson?

A: Yes. I did.

Q: What was she doing?

A: She was seated in a vehicle in the driveway holding a towel or a shirt up to her lip.

Q: Okay. Did Karen Johnson tell you what had happened?

A: She briefly stated that Mr. Goddard had punched or slapped Heather in the face, and that he had left on his motorized scooter.

A: I [Officer Imus] came back. And I was attempting to speak with Karen and Heather further, but [a neighbor] Mr. Ryhall was standing in the front yard of 1516. He said that "Karen had taken Heather to the hospital." So I asked him if he had been a witness or seen anything that transpired. And he said he had. . . .

Q: What did he tell you?

A: Well, he lives two houses south of 1516 Ashley. He said about 15 minutes, maybe 20 minutes, prior to my arrival, he heard loud arguing coming from the front yard of that residence. He looked -- at one point he saw Mr. Goddard cock his hand back. He doesn't recall which. And slapped Heather in the jaw. It made a loud pop. And that she had fallen to the ground.

A: Mr. Ryhall said that Mr. Goddard pushed him in the chest and the face. At which time Mr. Ryhall pushed Mr. Goddard back in the chest, said "You don't hit a lady." Mr. Goddard replied back, "that wasn't a lady that I hit. That was a dude."

A: I spoke to her [a nurse] that evening, nurse Franchi, she said "yes, her [Heather's] jaw was in fact broken." Officer Imus spoke with the victim's younger sister, Aubrey:

A: And I believe Aubrey had seen Mr. Goddard throw her [Heather] two or three separate times. And she {Aubrey] said each time was about five to six feet.

Maybe seven feet out onto the law[n]. She [Heather] would jump on his shoulder . . . She also said at the end of it, that Mr. Goddard had come out onto the front grass area, cocked his hand back -- she couldn't remember which. And punched Heather in the jaw. And she wasn't sure which side. It made a loud pop noise, and Heather immediately collapsed on the grass. (Lodged Document 15 at 4-6, 8-10.)

B. Procedural History

On August 30, 2004, petitioner withdrew his not guilty plea and entered a counseled plea of no contest to inflicting corporal injury on a former cohabitant, and admitted the great bodily injury enhancement. (Lodged Doc. 1, 18.) At the conclusion of the hearing Mr. Goddard was found guilty of the charge and the enhancement was found true. (Lodged Document 18 at 8.) Sentence was imposed on October 18, 2004. (Lodged Document 2.)

Prior to accepting the change of plea, the trial court advised Mr. Goddard that if the court followed the plea agreement, he would be sentenced to seven years imprisonment, suspended, on the condition that he perform under a grant of probation. The court advised Mr. Goddard that if he violated any terms or conditions of probation, the court "would lift the suspension and impose it and can send you to prison for seven years." (Lodged Document. 18 at 3.) As part of the plea agreement, the People dismissed five additional counts relating to incidents that occurred on a different date but involved the same victim. (Lodged Document. 18 at 8-9, Ct. Rec. 1, attachment 11(a)(8).)

On October 18, 2004, the court followed the terms of the plea agreement and sentenced Mr. Goddard to a suspended state prison aggregate term of seven years, comprised of the mid-term of three years for the Penal Code §273.5(a) violation and the mid-term of four years for the Penal Code §12022.7(e) enhancement. He was sentenced to five years of probation. No jail time was imposed. (Lodged Document. 2; Ct. Rec. 1, attachment 11(a)(8).) Mr. Goddard's conditions of probation required that he commit no further violations of the law and refrain from using alcohol. (Lodged Document. 2 at 2.) Less than three weeks later, on November 3, 2004, Mr. Goddard was arrested for driving while under the influence of alcohol.

On December 17, 2004, Mr. Goddard pleaded guilty to driving with a blood alcohol level of .08 or higher, in violation of Vehicle Code §23152(b). As a result of this conviction, he admitted violating probation in the domestic violence case. (Ct. Rec. 1, attachment 12(a) at 2.) Sentencing on the domestic violence felony probation violation was continued to January 21, 2005 at Mr. Goddard's counsel's request. (Id.)

At hearings held on January 21, 28, and 31, 2005, the court heard and considered the testimony of three witnesses who appeared on Mr. Goddard's behalf: Mark Corey, Ph.D., Heather Johnson Goddard, the victim of the underlying domestic violence offense and (at the time of the violation hearings) Mr. Goddard's spouse; and Mr. Goddard on his own behalf. (Ct. Rec. 1, attachment 12(a) at 2-3).) At the end of the hearing on January 31, 2005, the court imposed the previously suspended seven year state prison sentence. (Lodged Document 1, Ct. Rec. 1, attachment 12(a) at 3.)

Mr. Goddard did not appeal from his judgment of conviction. (Ct. Rec. 1 at 3.) On November 7, 2005, he filed a petition for writ of habeas corpus in Yolo County Superior Court alleging ineffective assistance of trial counsel. (Lodged Document 5.) The superior court denied the ...


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