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Vivian v. Castro

April 20, 2009

MYRON VANCE VIVIAN, PETITIONER,
v.
WARDEN CASTRO, ET AL., RESPONDENTS.



FINDINGS AND RECOMMENDATIONS

Petitioner is a former state prisoner proceeding pro se with a petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. Petitioner challenges a 2002 judgment of conviction entered against him in the Lassen County Superior Court on one count of committing a lewd or lascivious act on a child under the age of 14 years following his guilty plea to that charge. He seeks relief on the grounds that: (1) his Fourth Amendment right against unreasonable search and seizure was violated when his confession was illegally tape-recorded; (2) his confession was obtained in violation of the decision in Miranda v. Arizona, 384 U.S. 436 (1966) and his rights under the Fifth and Sixth Amendments; (3) prosecutorial misconduct violated his right to due process; and (4) his trial counsel rendered ineffective assistance. Upon careful consideration of the record and the applicable law, the undersigned will recommend that petitioner's application for habeas corpus relief be denied.

PROCEDURAL AND FACTUAL BACKGROUND

Defendant Myron Vance Vivian pleaded guilty to commission of a lewd and lascivious act with a child under age 14. (Pen.Code, § 288, subd. (a).)*fn1 In exchange, three counts of that offense were dismissed with a Harvey waiver,*fn2 and a multiple-victims allegation (§ 667.61, subd. (b)) was dismissed outright. Defendant was sentenced to state prison for six years, awarded 377 days of custody credit and 56 days of conduct credit, and ordered to pay a $1,200 restitution fine (§ 1202.4) and a $1,200 restitution fine suspended unless parole is revoked (§ 1202.45). ("Item 4" filed in support of the Answer (Opinion) at 1.)

On September 6, 2002, petitioner filed a timely notice of appeal, with the issues limited to "sentence only." ("Item 1" filed in support of the Answer, Clerk's Transcript on Appeal (hereinafter CT) at 132.) Petitioner's appellate counsel filed a brief in accordance with the decision in People v. Wende, 25 Cal. 3d 436 (1979), in which counsel set forth the facts of the case and requested that the appellate court review the record and determine whether there were any arguable issues on appeal. ("Item 3" filed in support of the Answer.) The California Court of Appeal for the Third Appellate District found no arguable error that would result in a disposition more favorable to defendant and affirmed petitioner's judgment of conviction. (Opinion at 2.)

On February 10, 2004, petitioner filed a petition for writ of habeas corpus in the Lassen County Superior Court, in which he raised the same claims set forth in the petition pending before this court. ("Item 6" filed in support of the Answer.) The Superior Court denied that petition by order dated February 11, 2004. The court reasoned as follows:

Petitioner, in the custody of the California Department of Corrections at the California Medical Facility, Vacaville, alleges that he is illegally imprisoned because of illegal search and seizure; that he was denied effective assistance of counsel in that his counsel was a buddy of the prosecuting attorney and the sentencing judge; and violation of his Miranda rights. Review of the record reveals that petitioner pleaded guilty in a plea bargain, reserving his right of appeal of the sentence. On appeal, his attorney filed a Wende brief. The petition does not state grounds for relief via habeas corpus (c.f. In re Basham, (1937) 24 Cal.App.2d 285) and is denied. (Petition filed May 16, 2005 (hereinafter Pet.) at page 29 of 40.) Petitioner subsequently filed a petition for writ of habeas corpus in the California Court of Appeal for the Third Appellate District, in which he raised these same claims. ("Item 7" filed in support of the Answer.) That petition was summarily denied by order dated April 22, 2004. (Id.) On May 11, 2004, petitioner filed a petition for writ of habeas corpus in the California Supreme Court, raising the same claims. ("Item 8" filed in support of the Answer.) That petition was summarily denied by order dated March 23, 2005. (Id.)

ANALYSIS

I. Standards of Review

Applicable to Habeas Corpus Claims 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. See Peltier 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. See Estelle 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 de novo. Milton v. Wainwright, 407 U.S. 371, 377 (1972).

This action is governed by the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"). See Lindh 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.

See also Penry 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). If the state court's decision does not meet the criteria set forth in § 2254(d), a reviewing federal court then conducts a de novo review of a habeas petitioner's claims. Delgadillo v. Woodford, 527 F.3d 919, 925 (9th Cir. 2008). See also Frantz v. Hazey, 513 F.3d 1002, 1013 (9th Cir. 2008) (en banc) ("[I]t is now clear both that we may not grant habeas relief simply because of ยง ...


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