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Bowens v. Horel

August 17, 2009

WILLIAM BOWENS, PETITIONER,
v.
ROBERT A. HOREL, RESPONDENT.



The opinion of the court was delivered by: Ronald B. Leighton United States District Judge

ORDER

I. Introduction

Petitioner William Bowens is serving a three-strike enhanced sentence of 40-years to life for conviction of robbery in violation of California Penal Code §211, and receipt of stolen property in violation of California Penal Code §496. Having exhausted his appellate avenues and having been denied habeas corpus relief in state court, Petitioner filed a Petition for a Writ of Habeas Corpus in this Court. Petitioner makes three claims for habeas review. First, petitioner claims his 14th Amendment Due Process Rights were violated when the state court ruled that the erroneous jury instruction regarding "fear" was harmless. Second, petitioner claims violation of his 14th Amendment right to effective assistance of appellate counsel because his counsel did not review the voir dire proceedings transcripts. Lastly, petitioner claims ineffective assistance of trial counsel in violation of his Sixth Amendment right because his counsel failed to advise Petitioner to seek and accept a plea agreement, or inform him of a plea agreement if the prosecutor had offered one.

II. Prior Proceedings

On August 27, 2004, a jury convicted Petitioner William Bowens of robbery in violation of California Penal Code §211, and receipt of stolen property in violation of California Penal Code §496, in the California Superior Court, Sacramento County. Petitioner admitted enhancements for four previous convictions which resulted in previous prison terms, three of which had qualified as "strike" offenses under California Penal Code §§ 667.5(b), 667(a)-(I), 1170.12. The court imposed a sentence of forty years to life, twenty-five years to life for robbery, plus a consecutive fifteen years to life on the enhancement for his three prior felonies. A concurrent sentence of twenty-five years to life was imposed on the receipt of stolen property count.

On February 17, 2005, Bowens filed an appeal with the California Court of Appeal, Third Appellate District, contending that the jury was erroneously instructed that the taking element of robbery could be accomplished by fear. The California Court of Appeal found the instruction erroneous, but found the error harmless, and affirmed the Petitioner's conviction.

On April 25, 2005, Bowens filed a petition for rehearing with the California Court of Appeal, Third Appellate District, which was subsequently denied on August 4, 2005.

On August 16, 2005, Bowens petitioned the California Supreme Court for review. Review was denied on September 21, 2005 without comment.

Bowens filed a writ of habeas corpus petition with the Sacramento County Superior Court on May 24, 2006 based on two grounds: 1) ineffective assistance of appellate counsel because transcripts of voir dire proceedings were not obtained; and 2) ineffective assistance by trial counsel for failing to obtain or advise Petitioner to request a plea offer from the prosecutor. The petition was denied on July 12, 2006.

Bowens filed petitions with the California Court of Appeal, Third Appellate District on August 7, 2006, and the California Supreme Court on September 11, 2006, alleging the same as he did in his initial habeas petition. Both petitions were denied, on August 24, 2006, and March 21, 2007, respectively, without comment or citation.

On May 25, 2007, Bowens filed a federal habeas petition in the United States District Court, Eastern District of California. The petition was transferred to the Western District of Washington for consideration.

III. Factual History

Petitioner has not challenged the following factual findings which support his conviction:

As Jennifer Mitchell walked from her car in the parking lot of a Sacramento area Wal-Mart, she felt a 'very startling' tug from her shoulder, like a 'jolt.' Before that, she had neither heard nor seen anyone from behind approach her. Mitchell realized immediately [that] the shoulder strap on her purse had broken and her purse was gone. Turning, she saw defendant running away with her purse.

Although she felt afraid and a little disoriented, she ran after him, screaming for help. When passerby and an off-duty probation officer caught the defendant, Mitchell's purse was in his possession. Defendant said he had taken the purse "because I was hurting" from drug withdrawal.

When the defendant was arrested, he had checks belonging to a second victim, Patricia Rangel, whose checkbook had been stolen with her purse from a shopping cart in the same Wal-Mart parking lot the month before. The thief was an African-American man, like defendant, but Rangel could not identify him.

Defendant was charged with robbery in the theft of Mitchell's purse (Cal. Pen. Code §211), and with receiving stolen property by virtue of having Rangel's checks in his possession (Cal. Pen. Code §496, subd. (a)).

Defendant testified and admitted at trial he ran up behind Mitchell and snatched her purse so that he could get a little money to buy some cocaine, as he had been addicted to drugs for many years. He denied intending to scare or injure Mitchell.

But he denied having taken Rangel's purse in the same parking lot. Rather he testified, a sometime housemate had given him Rangel's checks a few day before his arrest and he knew they were stolen.

The jury found defendant guilty of both charges.

Opinion of the California Court of Appeal, Third Appellate District Affirming the Judgment, William Bowens v. Robert A. Horel, Case No. C047792 (July 18, 2005).

IV. Discussion

A federal court may grant a habeas corpus application arising from a state-court adjudication on the merits if the state court's decision "was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States." 28 U.S.C. § 2254(d)(1); Knowles v. Mirzayance, 129 S.Ct. 1411, 1414 (2009). Having reviewed each of petitioner's claims, the Court DENIES Bowens' Petition for a Writ of Habeas Corpus on all claims.

A. Federal Habeas Corpus Standards

The Antiterrorism and Effective Death Penalty Act ("AEDPA"), at 28 U.S.C. § 2254(d), provides the legal standard for the Court's consideration of this habeas petition. A state court decision is contrary to clearly established Supreme Court precedent, within the meaning of 28 U.S.C. § 2254, "if the state court applies a rule that contradicts the governing law set forth in [the Supreme Court's] cases" or "if the state court confronts a set of facts that are materially indistinguishable from a decision of [the Supreme Court] and nevertheless arrives at a result different from [the Supreme Court's] precedent." Lockyer v. Andrade, 538 U.S. 63, 73 (2003) (quoting Williams v. Taylor, 529 U.S. 362, 405-406 (2000) and citing Bell v. Cone, 535 U.S. 685, 694 (2002)).

A state court decision is an unreasonable application of clearly established Supreme Court precedent, within the meaning of 28 U.S.C. § 2254(d), "if the state court identifies the correct governing legal principle from [the Supreme Court's] decisions but unreasonably applies that principle to the facts of the prisoner's case." Lockyer v. Andrade, 538 U.S. at 75 (quoting Williams, 529 U.S. at 413). The "unreasonable application" clause requires the state court decision to be more than merely incorrect or erroneous; the state court's application of clearly established federal law must be objectively unreasonable.

(quoting Williams, 529 U.S. at 409).

In determining whether a state court decision is contrary to, or an unreasonable application of federal law, this Court looks to the state courts' last reasoned decision. See Ylst v. Nunnemaker, 501 U.S. 797, 803-04 (1991); Shackleford v. Hubbard, 234 F.3d 1072, 1079 n. 2 (9th Cir.2000), cert. denied, 534 U.S. 944 (2001). Moreover, "a determination of a factual issue made by a State court shall be presumed to be correct," and the petitioner "shall have ...


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