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Johnson v. Kane

April 10, 2009

JAY JOHNSON, PETITIONER,
v.
A.P. KANE, WARDEN, RESPONDENT.



The opinion of the court was delivered by: Robert J Bryan United States District Judge

ORDER ON PETITION FOR WRIT OF HABEAS CORPUS

This matter comes before the court on petitioner's petition for writ of habeas corpus. Dkt. 1. The court has considered the relevant documents and the remainder of the file herein.

INTRODUCTION

Petitioner is a state prisoner currently incarcerated at the California Training Facility in Soledad, California. He filed this petition for writ of habeas corpus to challenge his 2002 Placer County, California, conviction. Respondent filed an answer and relevant portions of the record. Dkt. 13 and 14. Petitioner filed a traverse. Dkt. 15. At the court's request, respondent filed supplemental briefing (Dkt. 20); petitioner filed a motion requesting appointment of counsel as well as an extension of time to file supplemental briefing (Dkt. 21). A review of the record shows that the claims do not warrant habeas relief. Accordingly, the petition should be denied and the case dismissed with prejudice.

PROCEDURAL AND FACTUAL HISTORY

On November 19, 2002, petitioner was convicted by jury trial of first degree murder (Pen. Code § 187(a))(Count 1); attempted murder (Pen. Code §§ 664/187(a))(Count 2); and two counts of assault with a deadly weapon (Pen. Code. § 245)(Counts 5 and 6). The jury found allegations of personal use of a deadly weapon (Pen. Code. § 12022(b)), and personal infliction of great bodily injury (Pen. Code § 12022.7) to be true. Petitioner was acquitted on charges of attempted robbery and burglary.

On December 19, 2002, the court sentenced petitioner to an indeterminate term of 25 years to life on Count 1 (first degree murder) as well as a one-year enhancement for the personal use of a deadly weapon. The court imposed a consecutive term of 13 years on Count 2 (attempted murder), and stayed sentences for Counts 5 and 6 (assault with a deadly weapon). Petitioner was on probation at the time of these crimes.

The California Court of Appeal summarized the facts of the case as follows:

FACTS

Ronald Booker and his wife Laurie Niami lived in an isolated area of Colfax. On April 16, 2001, Booker was recovering from surgery on the quadriceps of his right leg. About 5:15 a.m. that morning, Booker was having coffee and changing the dressing on his leg when defendant entered the home through unlocked French doors in the back of the house. Defendant was carrying a plastic bag and a tree branch. Booker called to his wife to call the police.

Defendant began striking Booker in the head and body with the branch. Unable to defend himself, Booker called to his wife for help. As Niami ran at defendant, he struck her in the face, knocking her unconscious. Defendant returned to striking Booker with the branch until it broke. Hoping defendant would take what he wanted and leave, Booker feigned unconsciousness. However, defendant continued to strike Booker, poured hot coffee down Booker's neck, and pulled an electric cord from the wall and held it like a rope. Booker pushed himself to his knees and defendant dropped the cord, picked up a cane and struck Booker with it, breaking it over Booker's head. Defendant, who was wearing climbing boots, then kicked Booker two or three times in the chest.

Booker managed to hit defendant once in the head and grab defendant's jacket. Defendant got out of the jacket, smiled at Booker and kicked Niami twice in the head. Still on his knees, Booker pushed back his scalp which was now hanging over his face. Defendant picked up a solid oak television tray and struck Booker over the head with it. Defendant then slammed the tray down on Niami's throat with "crushing" force.

Booker asked defendant why he was doing this and defendant replied that Jesus had sent him and his brother to kill everybody in the house. Booker said, "Not today, Charlie," and defendant turned and ran out of the house.

Niami died as a result of defendant's assault on her.

Defendant was arrested later that morning in a café by Sergeant Holguin. Defendant had fresh cuts on his head and hands. Defendant said he had fallen on rocks while gold mining. Defendant told Captain Armstrong that a big man had hit him with a rock while on a trail, and had stolen defendant's Denver Bronco's baseball cap, his upper dentures, jacket, and shirt. A Denver Bronco's baseball cap and dentures were found at Booker's residence. Defendant told Armstrong that he had been fasting, loved Jesus, and wanted to call his mother.

Defendant testified he left a mining camp where he was working an hour before dark and was walking to Colfax when he was struck by a pickup and knocked cold. When he regained consciousness he was wet with sweat and had chills. Defendant believed he was struck by Booker because he was hit in Booker's driveway.

Defendant went to Booker's house where he was attacked by Booker and Niami and some of his property was taken. The struggle was violent, with Booker atop defendant trying to strangle him and also breaking a television tray over defendant's head. Defendant fought back in self-defense and may have inadvertently kicked Niami in the face when he was being strangled by Booker. Defendant denied ever having a weapon or intentionally kicking anyone.

People v. Johnson, 2005 WL 318583 * 1-2 (Cal.App.3 Dist.)(Dkt. 29, Exh. F, at 2).

Petitioner filed a direct appeal with the California Court of Appeal, Third Appellate District, which affirmed his conviction on February 9, 2005. On May 11, 2005, the California Supreme Court denied petitioner's petition for review without prejudice, stating as follows:

Petition for review denied without prejudice to any relief to which defendant might be entitled after this court determines in People v. Black, S126182, and People v. Towne, S125677, the effect of Blakely v. Washington (2004) __U.S. __ 124 S.Ct. 2531, on California law.

Dkt. 1, at 11.

On March 3, 2006, petitioner filed this petition for writ of habeas corpus. Dkt. 1. The court has carefully reviewed the entire record in this case.

CLAIMS

Petitioner raises three claims in his petition, which are quoted as follows:

1. Petitioner contends the trial court's refusal to permit petitioner from entering a plea of not guilty by reason of insanity vitiated his "Substantive" rights under the Fifth, Sixth, and Fourteenth Amendments to the United States Constitution.

2. Petitioner avers there is a dichotomy between the state and federal standards for determining competency, contumacious to Due Process of law.

3. Petitioner contends the trial court's decision to impose upper and consecutive terms were based on factors which violated the Sixth Amendment right to jury trial.

Docket 1

EXHAUSTION

Before claims may be raised in a federal habeas corpus petition, state remedies must be exhausted; or an applicant must show there is either an absence of available state corrective process or that circumstances exist that render such process ineffective to protect the rights of the applicant. 28 U.S.C. § 2254(b)(1); see also, Rose v. Lundy, 455 U.S. 509 (1982). A claim has been exhausted once it has been fairly presented to the state's highest court and the court has had the opportunity to rule on the merits of the claim. See O'Sullivan v. Boerckel, 119 S.Ct. 1728, 1733-34 (1999); Picard v. Connor, 404 U.S. 270, 275-276 (1971); Batchelor v. Cupp, 693 F.2d 859, 862(9th Cir. 1982), cert. denied, 463 U.S. 1212 (1983).

A petitioner must present the claims to the state's highest court based upon the same federal legal theory and factual basis as the claims are subsequently asserted in the habeas petition. Hudson v. Rushen, 686 F.2d 826, 829-830 (9th Cir. 1982), cert denied 461 U.S. 916 (1983); Schiers v. California, 333 F.2d 173, 176 (9th Cir. 1964). Specifically, a petitioner must apprise the state courts that an alleged error is not only a violation of state law, but a violation of the Constitution. Duncan v. Henry, 513 U.S. 364, 365-66 (1995). Vague references to broad constitutional principles such as due process, equal protection, or a fair trial do not satisfy the exhaustion requirement. Gray v. Netherland, 518 U.S. 152, 162 (1996); Hiivala v. Wood, 195 F.3d 1098, 1106 (9th Cir. 1999); Gatlin v. Madding, 189 F.3d 882, 888 (9th Cir. 1999), cert. denied, 120 S.Ct. 815 (2000). A petitioner must include reference to a specific federal constitutional guarantee as well as a statement of the facts that entitle the petitioner to relief. Gray v. Netherland, 518 U.S., at 162-163.

A petitioner who has not exhausted state court remedies may be excluded from presenting the issues to the state's highest court when the petitioner has not complied with a state procedural rule. Harris v. Reed, 489 U.S. 255, 260 (1989).

When a state prisoner defaults on federal habeas claims in state court pursuant to an independent and adequate state procedural rule, federal habeas review of the claims is barred unless the prisoner can demonstrate cause for the default and actual prejudice as a result of the alleged violation of federal law, or show that failure to consider the claims will result in a fundamental miscarriage of justice. Coleman v. Thompson, 501 U.S. 722, 750-751 (1991).

Cause and Prejudice: To satisfy the "cause" prong of the cause and prejudice standard, petitioner must show that some objective factor external to the defense prevented him from complying with the state's procedural rule. Coleman, 501 U.S. at 752-753 (citing Murray v. Carrier, 477 U.S. 478, 488 (1986)). Prejudice exists if the alleged errors were of constitutional dimensions and worked to the defendant's actual and substantial disadvantage. United States v. Frady, 456 U.S. 152, 170 (1982). Petitioner has not shown any facts to establish that an objective factor external to the defense prevented him from complying with the state requirements for appeal or other post-conviction relief. Because petitioner has not established cause for the default, it is unnecessary to consider whether he was actually prejudiced.

Fundamental Miscarriage of Justice: The court may grant the writ to correct a fundamental miscarriage of justice if petitioner can show that his conviction is the result of a constitutional violation and that he is actually innocent. Murray, 477 U.S. at 495-96.

In this case, petitioner exhausted Claims 1 and 2 before the California Supreme Court; these claims will be addressed on the merits. The exhaustion issue with regard to Claim 3 will be addressed in connection with the analysis of Claim 3 below.

STANDARD OF REVIEW

A habeas corpus petition shall not be granted with respect to any claim adjudicated on the merits in the state courts unless the adjudication either (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; or (2) resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented to the state courts. 28 U.S.C. §2254(d). Under the "contrary to" clause, a federal habeas court may grant the writ if the state court arrives at a conclusion opposite to that reached by the Supreme Court on a question of law or if the state court decides a case differently than the Supreme Court has on a set of materially indistinguishable facts. Williams v. Taylor, 120 S.Ct. 1495, 1523 (2000). Under the "unreasonable application" clause, a federal habeas court may grant the writ if the state court identifies the correct governing legal principle from this Court's decisions but unreasonably applies that principle to the facts of the prisoner's case. Id.

A determination of a factual issue by a state court shall be presumed correct, and the applicant has the burden of rebutting the presumption of correctness by clear and ...


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