FINDINGS AND RECOMMENDATIONS
Petitioner Willie Penilton is a state prisoner proceeding pro se with a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254. Mr. Penilton attacks his conviction in the Sacramento County Superior Court, case no. 03F06117, entered on November 21, 2003.
Mr. Penilton makes the following claims:
A. The prosecutor engaged in vindictive prosecution;
B. The prosecutor withheld evidence;
C. The prosecutor violated Mr. Penilton's right to a speedy trial;
D. The prosecutor intimidated witnesses;
E. The prosecutor influenced testimony;
F. Lack of access to legal material;
G. The trial court failed to grant a continuance;
H. Destruction of evidence;
I. Jury Instruction Error;
J. Mr. Penilton recieved ineffective assistance of appellate counsel; and
K. Mr. Penilton's probation report was fabricated.
Upon careful consideration of the record and the applicable law, the undersigned will recommend that Mr. Penilton's petition for habeas corpus relief be denied.
III. FACTUAL AND PROCEDURAL BACKGROUND
Prosecution case-in-chief In early July 2003, J.J. lived with her sister in Sacramento. Defendant also stayed there.
In July 2003, J.J. went to the U.C. Davis Medical Center with a broken jaw. She told a nurse that her boyfriend had punched her in the jaw three days previously. She told a Sacramento police officer that she had hung up on her boyfriend, Will, during a telephone call. Then he came to the house, said he was going to kill her, and choked her until she was unconscious. He subsequently punched her in the jaw to wake her up. She went to the hospital a few days later because her jaw still hurt.
After J.J. was released from the hospital, her sister obtained a restraining order to remove J.J. from the residence. J.J. then went to live with defendant and his uncle at a motel on Stockton Boulevard.
Ten days after her prior visit, J.J. returned to the medical center because her jaw had been broken again. She told a Sacramento police officer that two nights previously, defendant had hit her on the side of her head with his open hand, causing her to fall and hit her head on the bathtub. He continued to hit her and again broke her jaw. Then he choked her until she lost consciousness. Defendant, who was in the medical center waiting room, was detained and later arrested. After being advised of and waiving his rights, defendant said he did not know how J.J. had first hurt her jaw.
J.J. initially testified at trial that she could not remember how she had been injured because she had been drinking and taking drugs. She said friends had told her that defendant had hit her. She thought defendant had broken her jaw the first time because he was on top of her when she regained consciousness. She admitted that she was violent at times. She had suffered convictions for prostitution and receiving stolen property. She testified on direct examination that she was in love with defendant. However, on cross-examination by defendant in propria persona, she testified that she was not in love with him.*fn1
When she was recalled two days later, J.J. testified that she had agreed to testify that she did not remember what had happened to her. In one of 40 to 50 letters defendant had sent her, he admonished her, "whatever you do, don't flip the script...." He told her to "follow his leads" when he cross-examined her. But when he tried during trial to make it appear that she was lying, she became concerned that the prosecutor would file a perjury charge against her. She then testified that defendant had strangled, hit and threatened her. On cross-examination, she told defendant that when she first testified, she "wanted [him] to be out" of custody and she "tried to change [her] story to help [him] out." She insisted that defendant had hit and strangled her. When he asked, "So you feel I was trying to have you lie yesterday?" she replied, "Yeah. It's in the letters, Willie."
Defense Defendant testified that he had prior convictions for car theft, second-degree burglary, and attempted kidnapping with the use of a gun. Defendant testified that he did not hit J.J., although she repeatedly told him that he had. On July 15, she cut the wires holding her jaw shut because she was hungry.
On cross-examination, an employee of the Budget Inn acknowledged having heard J.J. yelling at defendant that he had broken her jaw.
November 9, 2005 opinion of the California Court of Appeal, Third Appellate District, case no. C046462, 2005 WL 3032639, *1-2.
On October 20, 2003 a jury found Mr. Penilton guilty of inflicting corporal injury on a spouse with great bodily injury, battery with serious injury, and two counts of simple assault. CT at 457-461. On February 27, 2004 the trial judge sentenced him to 18 years in prison. CT at 10.
B. State Appellate Proceedings
After receiving his sentence Mr. Penilton filed an appeal with the California Court of Appeal. On November 9, 2005 that court affirmed Mr. Penilton's conviction and sentence. On December 15, 2005 Mr. Penilton filed a petition for review with the California Supreme Court. Answer, Ex. 5. That petition was denied on January 18, 2006.
C. State Habeas Corpus Proceedings
While his appeal was still pending, Mr. Penilton filed a petition for writ of habeas corpus in the Sacramento County Superior Court. That petition was denied on March 7, 2005. On March 21, 2005 Mr. Penilton filed a habeas petition in the California Court of Appeal. That petition was denied on March 24, 2005. Answer, Ex. 9 at 2. On June 1, 2005, he filed a habeas petition with the California Supreme Court. Answer, Ex. 10. That petition was denied on May 17, 2006.
On January 24, 2006 Mr. Penilton filed a petition for review in the California Supreme Court. That petition was denied on May 7, 2006. Mr. Penilton also filed a petition for review in the Sacramento County Superior Court on January 27, 2006. Answer, Ex. 11. That petition was denied on April 17, 2006. Answer Ex. 11 at 3.
Mr. Penilton then filed another petition in the California Court of Appeal on May 10, 2006. Answer, Ex 12. That petition was denied on May 18, 2006. Mr. Penilton filed another petition with the California Supreme Court on June 2, 2006, which was denied on January 17, 2007. Answer, Ex. 13. Mr. Penilton finally filed this federal petition on July 12, 2006 and an amended petition on April 9, 2007.
IV. APPLICABLE STANDARD OF HABEAS CORPUS REVIEW
A writ of habeas corpus is available under 28 U.S.C. § 2254 only on the basis of some transgression of federal law binding on the state courts. SeePeltier v. Wright, 15 F.3d 860, 861 (9th Cir. 1993); Middleton v. Cupp, 768 F.2d 1083, 1085 (9th Cir. 1985) (citing Engle v. Isaac, 456 U.S. 107, 119 (1982)). A federal writ is not available for alleged error in the interpretation or application of state law. SeeEstelle v. McGuire, 502 U.S. 62, 67-68 (1991); Park v. California, 202 F.3d 1146, 1149 (9th Cir. 2000); Middleton, 768 F.2d at 1085. Habeas corpus cannot be utilized to try state issues denovo. Milton v. Wainwright, 407 U.S. 371, 377 (1972).
This action is governed by the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"). SeeLindh v. Murphy, 521 U.S. 320, 336 (1997); Clark v. Murphy, 331 F.3d 1062, 1067 (9th Cir. 2003). Section 2254(d) sets forth the following standards for granting habeas corpus relief:
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.
28 U.S.C. § 2254(d). SeealsoPenry v. Johnson, 532 U.S. 782, 792-93 (2001); Williams v. Taylor, 529 U.S. 362 (2000); Lockhart v. Terhune, 250 F.3d 1223, 1229 (9th Cir. 2001). The court looks to the last reasoned state court decision as the basis for the state court judgment. Robinson v. Ignacio, 360 F.3d 1044, 1055 (9th Cir. 2004).
V. PETITIONER'S CLAIMS*fn2
A. Vindictive Prosecution
Mr. Penilton claims his conviction was the result of vindictive prosecution. Petition at 23. Specifically he claims that the prosecutor committed prosecutorial misconduct by charging him with two counts of attempted murder. Id. He argues that the prosecution had no evidence to support these charges and that the victim's testimony refuted them. Id.6 at 26-29.
"In our system, so long as the prosecutor has probable cause to believe that the accused committed an offense defined by statute, the decision whether or not to prosecute, and what charge to file ... generally rests entirely in his discretion." Bordenkircher v. Hayes, 434 U.S. 357, 364 (1978). " '[T]he conscious exercise of some selectivity in enforcement is not in itself a federal constitutional violation' so long as 'the selection was not deliberately based upon an unjustifiable standard such as race, religion, or other arbitrary classification.' " Id. (quoting Oyler v. Boles, 368 U.S. 448, 456 (1962)) (alteration in the original).
Such discretion is not however without limitations. The Supreme Court prohibits punishing "a person because he has done what the law plainly allows him to do." United States v. Goodwin, 457 U.S. 368, 372 (1982) (internal quotation marks and citation omitted), though the Court demands "exceptionally clear proof" before inferring an abuse of prosecutorial discretion. McCleskey v. Kemp, 481 U.S. 279, 297 (1987). Specifically, a "prosecutor violates due process when he seeks additional charges solely to punish a defendant for exercising a constitutional or statutory right." United States v. Hernandez-Herrera, 273 F.3d 1213, 1217 (9th Cir. 2001) (citation omitted).
Nevertheless, "[o]rdinarily, [courts] presume that public officials have properly discharged their official duties." Banks v. Dretke, 540 U.S. 668, 696 (2004) (citations omitted). Therefore where a defendant claims that a prosecutor's charging decision was based on a violation of the Constitution, the defendant's "standard [of proof] is a demanding one." United States v. Armstrong, 517 U.S. 456, 463 (1996).
"To establish a prima facie case of prosecutorial vindictiveness, a defendant must show either direct evidence of actual vindictiveness or facts that warrant an appearance of such." United States v. Montoya, 45 F.3d 1286, 1299 (9th Cir. 1995) (internal quotation marks and citation omitted); seeGoodwin, 457 U.S. at 380 n. 12 (suggesting that "a defendant might prove through objective evidence an improper prosecutorial motive" in order to establish a prosecutorial vindictiveness claim); Blackledge v. Perry, 417 U.S. 21, 27-29 (1974) (holding that vindictiveness could be presumed when prosecutor brings additional charges after defendant appeals his conviction). If the defendant provides "[e]vidence indicating a realistic or reasonable likelihood of vindictiveness" this "give[s] rise to a presumption of vindictiveness on the government's part." United States v. Garza-Juarez, 992 F.2d 896, 906 (9th Cir. 1993) (citation omitted); seeBlackledge, 417 U.S. at 27.
The burden then shifts to the prosecution to show that " 'independent reasons or intervening circumstances dispel the appearance of vindictiveness and justify its decisions.' " Montoya, 45 F.3d at 1299 (quoting United States v. Hooton, 662 F.2d 628, 633 (9th Cir. 1981)); seeGoodwin, 457 U.S. at 374 (suggesting that a presumption of vindictiveness "may be overcome only by objective information in the record justifying" an official's conduct).
While Mr. Penilton gives a detailed recount of the facts his sole argument appears to be that the prosecution had "no proof of any attempted murders" to support the charges. Petition at 26. Even if that claim were true, Mr. Penilton has not attempted to show "either direct evidence of actual vindictiveness or facts that warrant an appearance of such." Montoya, 45 F.3d at 1299. Further, review of the record finds ample support for these charges.
At the preliminary hearing an officer testified that the victim stated that during the July 3 assault Mr. Penilton choked her to the point she lost consciousness and required CPR. CT at 159-160. According to the victim, Mr. Penilton claimed he killed her and brought her back to life. Id. at 160. The officer further testified that the victim informed him that Mr. Penilton also choked her to the point she lost consciousness during the July 14 assault. CT at 171.
On direct examination after being recalled the victim testified that on July 3 Mr. Penilton choked her until she lost consciousness. RT at 429. After the victim regained consciousness, Mr. Penilton again choked her until she lost consciousness. Id. During the incident Mr. Penilton told the victim "you're gonna die." Id. at 429-30. The victim described the July 14 assault as occurring in a similar manner with Mr. Penilton ...