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George v. Almager

September 24, 2009

RICHARD EARL GEORGE PETITIONER,
v.
V.M. ALMAGER, WARDEN, ET AL., RESPONDENT.



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

ORDER: (1) ADOPTING THE REPORT AND RECOMMENDATION; (2) DENYING THE PETITION FOR WRIT OF HABEAS CORPUS; and (3) DENYING PETITIONER'S COUNSEL REQUEST FOR APPOINTMENT OF

Before the Court is Magistrate Judge Louisa S. Porter's Report and Recommendation ("R&R") recommending that the Court deny the Writ of Habeas Corpus, filed pursuant to 28 U.S.C. § 2254, of Petitioner Richard Earl George. [Doc. No. 15.] This Court has considered the Petition, Respondent's Answer, Petitioner's Traverse, Petitioner's Objections to the R&R, and all the supporting documents the parties have submitted. Having considered the documents, this ADOPTS the R&R, DENIES the Petition, and DENIES Petitioner's request for the appointment of counsel for the reasons stated below.

Factual Background

Because the facts as found by the state appellate court are set out in detail in the R&R, the Court will only provide a brief summary here. (See R&R at 2-5.)

Petitioner was Bertha Ledesma's boyfriend and pimp. Ledesma was afraid of Petitioner, and at one point wrote a letter stating that if she were found dead, to investigate Petitioner because he had tried to kill her by strangulation. Petitioner sold drugs and was also a driver for Amvets in El Cajon. On Saturday night, January 3, 2004, Petitioner drove Ledesma to one of her usual prostitution locations by the Adult Emporium on Main Street in Chula Vista.

At about 2:15 a.m., Petitioner agreed to give Fred Killpack oral sex. While Ledesma and Killpack were parked in his vehicle, Killpack saw Petitioner walking towards his car from the corner. Killpack started the car's engine and Ledesma began punching, scratching, and biting his face. Petitioner told Ledesma to throw the car keys out of the car, which she did. Petitioner reached into the car and choked Killpack into unconsciousness. Petitioner took Killpack's wallet, which Killpack had taken out during the struggle and offered to him. Petitioner and Ledesma left Killpack unconscious in his car.

When Petitioner and Ledesma were arrested on January 14, 2004, Petitioner had receipts in his car for gas station purchases made with Killpack's credit card, one of which was from a gas station near the Amvets where Petitioner worked. Records for the credit card indicated it had been used on the morning of January 4 at a gas station near the motel where Ledesma and Petitioner were staying.

On the same morning of the Killpack incident, Ledesma and Petitioner returned to an area on 32nd Street in San Diego, arriving about 5:00 am. There Ledesma saw Tom Duray. The two drove around the corner and Duray paid her $30. He reclined his seat, and while she was putting a condom on him, she stole his cell phone and put it in her pocket. Shortly after Ledesma began performing oral sex on Duray, Petitioner reached into the car, tried to grab Duray's throat, and told Ledesma to throw the car keys out the window, which she did. At one point, Ledesma heard a female voice coming from Duray's cell phone, yelling for her father and asking what was wrong. Eventually Petitioner got into the back seat of Duray's car and strangled him until he stopped fighting.

Petitioner took Duray's wallet and instructed Ledesma to remove the valuable contents. He asked her about the condition of the wallet, and she told him it looked brand new. Petitioner then transferred the contents of his wallet to Duray's and threw away his old wallet. Duray's son testified that his father had recently purchased a new wallet that looked similar to a wallet recovered from Petitioner during his arrest.

Duray died due to manual strangulation. From Duray's car, police recovered a used condom and collected smudges on the right rear window for DNA analysis. A statistical analysis of the DNA evidence recovered was later presented at trial.

Killpack was initially shown a photo lineup by police, where Ledesma's photograph was not included; Killpack did not identify any of the women in that lineup. Subsequently, Killpack was shown a lineup with Ledesma's photograph, where he identified Ledesma after two or three seconds. In another photo lineup provided by police, Killpack "instantaneously" identified Petitioner as his assailant. He was 100 percent positive in his identification. Killpack also identified Petitioner at trial.

Procedural History

On November 22, 2005, a jury found Petitioner guilty of first degree murder committed during the course of a robbery, two counts of robbery, and one count of assault by means of force likely to produce great bodily injury. On January 4, 2006, the trial court sentenced Petitioner to serve life without parole plus seven years.

Petitioner filed an appeal to the California Court of Appeal, Fourth Appellate District, Division One ("Appeal"), raising claims similar to those in his Petition. (Lodgment No. 8; Petition at 2.) On May 25, 2007, the California Court of Appeal affirmed thejudgment. (Appeal at 2, 24.) On July 2, 2007, Petitioner filed a petition for review in the California Supreme Court on same issues raised in his Appeal. (Lodgment No. 9.) The California Supreme Court denied the petition on August 22, 2007. (Lodgment No. 10.)

On November 19, 2007, Petitioner filed a federal petition for writ of habeas corpus. [Doc. No. 1.] On March 26, 2008, Respondent filed an Answer. [Doc. No. 8.] Petitioner filed his Traverse on May 14, 2008. [Doc. No. 14].On November 7, 2008, Judge Porter issued her R&R recommending the Petition be denied. [Doc. No. 15.] Petitioner filed timely Objections to the R&R on January 8, 2009. [Doc. No. 21.] Petitioner filed a Motion to Appoint Counsel on February 4, 2009, filed nunc pro tunc to January 30, 2009. [Doc. No. 23.]

Legal Standard

I. State Habeas Prisoner Standard

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).

The phrase "clearly established Federal law, as determined by the Supreme Court of the United States" refers to the holdings, as opposed to dicta, of the Supreme Court's decisions at the time of the relevant state-court decision. See Williams v. Taylor, 529 U.S. 362, 405 (2000). Holdings by the Courts of Appeals and dicta in Supreme Court opinions are not governing law for purposes of habeas review. See Carey v. Musladin, 549 U.S. 70, 76-77 (2006); Lockyer v. Andrade, 538 U.S. 63, 71-72 (2003). However, Ninth Circuit case law may be persuasive authority for purposes of determining whether a particular state-court decision is an "unreasonable application" of Supreme Court law. Duchaime v. Ducharme, 200 F.3d 597, 600 (2000). Such precedent may also help determine what law is "clearly established." Id.

A state-court decision is "contrary to clearly established federal law" if it (1) applies a rule that contradicts the governing law set forth in Supreme Court cases, or (2) confronts a set of facts that are materially indistinguishable from a decision of the Supreme Court and nevertheless arrives at the opposite result. See Williams, 529 U.S. at 405. The inquiry into whether a state court's interpretation of federal law is "contrary to" clearly established federal law is itself a question of federal law as to which federal courts owe no deference to the state courts. See Cordova v. Baca, 346 F.3d 924 (9th Cir. 2003). Mixed questions of fact and law are reviewed under the "contrary to" and "unreasonable application" clauses in 28 U.S.C. § 2254(d)(1). Lambert v. Blodgett, 393 F.3d 943, 976 (9th Cir. 2004). A state court's factual findings underlying its conclusions on mixed issues are accorded a presumption of correctness. Id.

A state court decision is an "unreasonable application of" Supreme Court precedent if the court correctly identifies the governing legal rule but applies it unreasonably to the facts of the Williams, 529 U.S. at 407-408; Luna v. Cambra, 306 F.3d 954, 960 as amended 311 F.3d 928 (9th Cir. 2002). This is a "highly deferential standard for evaluating state-court rulings," Lindh v. Murphy, 521 U.S. 320, 333 n.7 (1997), and "demands that state court decision be given the benefit of the doubt." Woodford v. Visciotti, 537 U.S. 19, 24 (2002) (per curiam). Under section 2254(d)(1)'s "unreasonable application" clause, a writ of habeas corpus may not issue simply because the reviewing district court concludes in its independent judgment that the relevant state court decision applied clearly established federal law "erroneously" or "incorrectly." Lockyer v. Andrade, 538 U.S. 63, 75 (2003). Rather, that application also must be objectively unreasonable. Id. at 76. Though this standard is not self-explanatory, it is a higher standard than clear error, the old standard applied by the Ninth Circuit. Clark v. Murphy, 331 F.3d 1062, 1068 (9th Cir. 2003).

A state court renders a "decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding" if the decision "is so clearly incorrect that it would not be debatable among reasonable jurists." Jeffries v. Wood, 114 F.3d 1484, 1500 (9th Cir. 1997) (overruled on other grounds by Lindh v. Murphy, 521 U.S. 320 (1997)).

Under section 2254(e)(1), federal courts must "give great deference to the state court's factual findings." Id. at 1499-1500. Petitioner may only rebut the presumption of correctness given to a state court's determination of a factual issue under § 2254(e)(1) by clear and convincing evidence. See 28 U.S.C. § 2254(e)(1); Gonzalez v. Pliler, 341 F.3d 897, 903 (9th Cir. 2003). However, "[f]or claims for which no adjudication on the merits in state court was possible . . . AEDPA's standard of review [and deference to factual findings] does not apply." Killian v. , 282 F.3d 1204, 1208 (9th Cir. 2002); see Taylor v. Maddox, 366 F.3d 992, 1000 (9th Cir. 2004) (holding that 2254(e)(1) only applies to challenges based on "evidence presented for the first time in federal court," whereas 2254(d)(2) applies to "intrinsic review of a state court's findings based entirely on the state record."); see also McKinney v. Rees, 993 F.2d 1378, 1382 n.4 (9th Cir. 1993) ([L]egal conclusions regarding the admissibility of evidence . . . are not findings of fact, and are not binding on this court.").

When the highest state court issues a decision in a case but does not articulate the rationale for its determination, such as issuing a silent denial, the silence is deemed to be consent to the lower court's decision, and the reviewing court should "look through" to the "last reasoned opinion" to determine the legal basis for the denial. Y1st v. Nunnemaker, 501 U.S. 797, 804 (1991).

II. Reviewing Magistrate Judge's R&R

The duties of a district court in connection with a magistrate judge's R&R are set forth in Rule 72(b) of the Federal Rules of Civil Procedure and 28 U.S.C. § 636(b)(1). A district court must "make a de novo determination of those portions of the report . . . to which objection is made," and "may accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate judge." 28 U.S.C. § 636(b)(1); FED. R. CIV. P. 72(b)(3) (2007); see also United States v. Raddatz, 447 U.S. 667, 676 (1980) ("[I]n providing for a 'de novo' determination . . . Congress intended to permit whatever reliance a district judge, in exercise of sound judicial discretion, chose to place on a magistrate's proposed findings and recommendations.").

III. Pro Se Litigant

A pro se litigant's pleadings should be liberally construed, and the litigant should be given leave to amend with instructions as to curing the deficiency unless the defects cannot be cured by amendment. See McGuckin v. Smith, 974 F.2d 1050, 1055 (9th Cir. 1992).

Petitioner's Objections

Because Petitioner has filed objections to the R&R, this Court must conduct a de novo review of the portions of the R&R to which objections were made. 28 U.S.C. § 636(b)(1); FED. CIV. P. 72(b)(3) (2007); see also Raddatz, 447 U.S.at 676. Petitioner objects to the R&R, raising the same general arguments offered in his Petition. (Objections at 6-20.)

Analysis

The Petition raises the following five grounds for relief: (1) the trial court improperly admitted evidence of a prior choking incident; (2) the trial court improperly admitted evidence of an unduly suggestive photo line-up; (3) the trial court improperly admitted unreliable DNA evidence; (4) insufficient evidence corroborated Petitioner's accomplice's testimony; and (5) the cumulative effect of the errors at Petitioner's trial ...


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