Searching over 5,500,000 cases.

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.

Franck v. Hubbard

April 17, 2009


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


Before the Court is Magistrate Judge Nita L. Stormes' Report and Recommendation ("R&R") recommending that the Court deny the First Amended Petition for Writ of Habeas Corpus pursuant to

28.U.S.C. § 2254 of Petitioner James Harry Franck ("Petitioner"). [Doc. No. 16.] The Court has considered all the supporting documents that the parties have submitted. Having considered these documents, this Courtnow ADOPTS the R&R and DENIES the petition for the reasons stated below.


This Court gives deference to State court findings and presumes their correctness. To rebut this presumption, the Petitioner bears the burden of proving the State court's error by clear and convincing evidence. 28 U.S.C. §2254(e)(1); see also Parke v. Raley, 506 U.S. 20, 35-36 (1992) (holding that findings of historical fact, including inferences properly drawn form such facts, are entitled to a statutory presumption of correctness). Petitioner has not provided the Court with clear and convincing evidence that the State court erred in its findings of fact.

The following facts are taken from the appellate court opinion denying the Petitioner, Mr. Franck, his direct appeal. On June 3, 2004, Petitioner broke into the victim's, Mr. Bradley, apartment and stole a VCR, DVD player, and VHS cassettes. Petitioner had broken through a sliding glass door to gain entry. A brick from Mr. Bradley's yard was found on the floor in the apartment. Mr. Bradley's neighbor heard breaking glass and saw Mr. Franck leave the apartment with two plastic trash bags at which point she summoned the police. Before the police arrived, Petitioner showed the stolen items in the bags to a man in a truck. When the police arrived, they observed Petitioner leave the items on the tailgate of the truck and walk away slowly. The police called out to Petitioner to stop and return for questioning. Initially, Petitioner ignored their commands, but eventually he turned and walked back to the police where he was arrested.

Petitioner's blood tested positive for cocaine and methamphetamine use. The police ascertained that he was under the influence of drugs and alcohol based on his alcoholic smell, bloodshot eyes, dilated pupils, fluttering eyelids, dry mouth, rapid pulse, and profuse sweating. Petitioner was initially cooperative with the police, but after he was arrested his behavior became out of control and irrational. While in the police car, he began yelling and cursing, hitting the protective cage with his shoulder or head and kicking the car door, windows, and roof. Because Petitioner told police to kill him, the police eventually took him to a county mental health facility. After a county mental health evaluation, Petitioner was released back into prison custody and eventually tried.


A jury found Petitioner guilty of residential burglary (Cal. Penal Code § 459, 460), being under the influence of cocaine (Cal. Health and Safety Code § 11550(a)), and resisting an officer (Cal. Penal Code § 148 (a)(1)), after which the trial court sentenced him to a thirteen-year term of incarceration. [Lodgment No. 1.] Petitioner filed a direct appeal in the California Court of Appeal, Fourth Appellate District, Division One. [Lodgment No. 8.] Petitioner raised two claims before the appellate court. First, Petitioner challenged the sufficiency of the evidence to support his burglary conviction, arguing that because of his intoxication he lacked the specific intent to commit theft. Petitioner also claimed that the trial court abused its discretion during sentencing in refusing to dismiss his prior strike under the Three Strikes law. On October 14, 2005, the appellate court rejected his claims and affirmed Petitioner's convictions and sentence. [Lodgment No. 11.] Petitioner did not seek direct review by the California Supreme Court. On March 15, 2006, Petitioner, proceeding pro se, filed a Petition For Writ of Habeas Corpus in the San Diego Superior Court. [Lodgment No. 12.] Petitioner raised four claims for relief: (1) ineffective assistance of trial counsel for failing to raise a defense of alcohol and drug-induced temporary insanity or psychosis; (2) violation of his First Amendment right to free speech when the trial judge did not allow him to address the court directly after the completion of closing arguments; (3) diminished capacity at the time of the offense because he was not taking his psychiatric medication and therefore was cognitively impaired; and (4) violation of his Eighth Amendment right to be free from cruel and unusual punishment based on the trial court's refusal to dismiss his prior strike conviction. [Id.] On May 4, 2006, the Superior Court denied the Petition in a written order. [Lodgment No. 13.] On April 14, 2006, Petitioner filed an identical habeas petition in the California Supreme Court, alleging the same four claims. On December 20, 2006, the California Supreme Court denied the Petition without comment. [Lodgment No. 15.]

On May 9, 2007, Petitioner filed a federal habeas petition alleging four grounds for relief: (1) violation of his Sixth Amendment right to counsel of his choice based on the trial court denying his motion for a Marsden hearing; (2) violation of his First and Sixth Amendment rights when the trial court denied him the opportunity to address the jury directly at the completion of closing arguments; (3) violation of his Fourteenth Amendment due process rights based on prosecutorial vindictiveness; and (4) trial court sentencing error under Cunningham v. California, 549 U.S. 270 (2007). [Lodgment No. 16.] Petitioner filed a motion to proceed in forma pauperis concurrently with his federal petition. The Court granted the motion, but stated that Petitioner failed to allege exhaustion for his Cunningham claim. [Doc. No. 3.] The Court instructed Petitioner regarding his options to proceed, given his failure to exhaust at least one of his four claims, and set a July 5, 2007, deadline for Petitioner to choose an option and file an appropriate pleading. [Id.]

On July 5, 2007, Petitioner filed a "Petition to Motion to Procede [sic] in Forma Pauperis to Staying in Federal District and Getting a Favorable Decision in Supreme or Exhausting Remaining Claims Simultaneously" [doc. no. 4], as well as a Notice of Lodgment in Support [Doc. No. 7]. The Court construed the motion as a request by Petitioner to stay and abey his petition in order to return to state court to exhaust his Cunningham claim, and ordered Respondent to file a response to the motion [Doc. No. 5]. Respondent filed a Motion to Dismiss [doc. no. 8], arguing that Petitioner failed to exhaust all four of his claims properly, and thus his petition should be dismissed in its entirety.

Magistrate Judge Nita Stormes prepared a Report and Recommendation finding that Petitioner properly exhausted only his First Amendment free speech claim. [Doc. No. 9.] In both of his state habeas petitions, the petitioner specifically pled his First Amendment violation claim regarding the court's refusal to allow him to address the jury directly during trial. Thus he "fairly presented" the issue to the California Supreme Court and the claim was properly exhausted. The magistrate judge further recommended his motion for a stay be denied based on his failure to demonstrate good cause for not exhausting his other three claims. Finally, the magistrate judge recommended that Respondent's motion to dismiss be granted, but that Petitioner be given an opportunity to file an amended petition deleting the unexhausted claims and presenting only his exhausted First Amendment claim.

On March 18, 2008, this Court adopted the Report and Recommendation in its entirety, granting Respondent's motion to dismiss and denying Petitioner's motion for stay and abeyance. [Doc. No. 11.] On May 1, 2008, Petitioner filed his first amended petition, in which he states only one ground for relief, his First Amendment claim, as directed by the Court's prior order. [Doc. No. 12.] Respondent filed an answer on May 29, 2008, arguing that Petitioner had no constitutional right to address the court personally after his trial counsel's closing argument, and thus his claim should be denied. [Doc. No. 14.] Magistrate Judge Stormes issued an R&R recommending denial of the petition. [Doc. No. 16.]

On October 3, 2008, Petitioner filed objections to the R&R raising many of the unexhausted claims that were removed from Petitioner's First Amended complaint following the Court's directions. [Doc. No. 20.] Petitioner requests that the Court "not deny this case and to dismiss or modify and remove both strikes." [Id.] Specifically, the Petitioner states the "Superior Court denied [him] a temporary insanity defence [sic]. Denied me private conflict counsel from the Marsden hearing. Denied me my right to speech at closing argument of trial imposed a cruel & unusual punishment in sentencing." [Id.] Furthermore, the Petitioner argues that the Superior Court also improperly denied him a defense of temporary insanity, explaining that he was suicidal at the time the crime was committed but is now under a steady medication regimen. [Id.]


I. 28 U.S.C. § 2254 - State Habeas Corpus Petitions

A federal court must grant habeas relief to a petitioner in state prison if the petitioner is in custody "in violation of the Constitution or other laws or treaties of the United States." 28 U.S.C. § 2254(a). A federal court's duty in examining a state prisoner's habeas petition is governed by 28 U.S.C. § 2254 as amended by the 1996 Antiterrorism and Effective Death Penalty Act ("AEDPA"). Pursuant to § 2254, 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 as determined by the Supreme Court of the United States," or (2) "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). State interpretation of state laws and rules cannot serve as the basis for a federal habeas petition, as no federal or ...

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.