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Rikard v. Harrington

October 16, 2009


The opinion of the court was delivered by: James K. Singleton, Jr. United States District Judge


Petitioner Kevin Glen Rikard, a state prisoner proceeding pro se, has filed a petition for habeas corpus relief under 28 U.S.C. § 2254. Rikard is currently in the custody of the California Department of Corrections and Rehabilitation, incarcerated at Kern Valley State Prison. Respondent has answered; Rikard failed to timely reply.


Rikard was convicted in the Plumas County Superior Court on a no-contest plea to one count each of second-degree murder (California Penal Code § 187(a)), robbery (California Penal Code § 211), use of a deadly weapon (California Penal Code § 12022(b)(1)), and inflicting great bodily injury during the commission of the robbery (California Penal Code § 12022.7(a)). The Plumas County Superior Court sentenced Rikard to a prison term of 15-years-to-life for second degree murder, a consecutive term of three years on the robbery charge, a one-year enhancement for the use of a deadly weapon charge, and another three-year enhancement for inflicting great bodily injury, for an aggregate prison term of 22-years-to-life. Rikard appealed his conviction to the California Court of Appeal, Third Appellate District, which affirmed his conviction in a reasoned unpublished decision on March 21, 2006.*fn2 Rikard did not seek further review of his appeal in the California Supreme Court. On January 25, 2007, Rikard filed a petition for habeas corpus relief in the California Supreme Court, which was summarily denied without opinion or citation to authority on June 27, 2007.

Rikard erroneously filed his petition for habeas corpus relief in the Court of Appeals, Ninth Circuit. The record shows that the petition, dated July 7, 2007, was received by the Court of Appeals on July 20, 2007; thus, the petition was timely filed. The Court of Appeals transferred the petition to this Court.*fn3 Rikard filed an amended petition with leave of court on June 28, 2008.


In his amended petition, Rikard raises two grounds: (1) the trial court improperly imposed separate punishments on the robbery and great bodily injury enhancement charges, and (2) the trial court refused to permit Rikard to address the court prior to sentencing. Respondent does not raise any affirmative defense.*fn4


Because Rikard filed his petition after April 24, 1996, it is governed by the standard of review set forth in the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA), 28 U.S.C. § 2254(d). Consequently, this Court cannot grant relief unless the decisions of the California courts were "contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States" at the time the state court renders its decision or "was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding."*fn5 The Supreme Court has explained that "clearly established Federal law" in § 2254(d)(1) "refers to the holdings, as opposed to the dicta, of [the Supreme Court] as of the time of the relevant state-court decision."*fn6

Thus, where holdings of the Supreme Court regarding the issue presented on habeas review are lacking, "it cannot be said that the state court 'unreasonabl[y] appli[ed] clearly established Federal law.'"*fn7 When a claim falls under the "unreasonable application" prong, a state court's application of Supreme Court precedent must be objectively unreasonable, not just incorrect or erroneous.*fn8 The Supreme Court has made clear that the objectively unreasonable standard is a substantially higher threshold than simply believing the state court determination was incorrect.*fn9

In a federal habeas proceeding, the standard under which this Court must assess the prejudicial impact of constitutional error in a state-court criminal trial is whether the error had a substantial and injurious effect or influence in determining the jury's verdict.*fn10

In applying this standard, this Court reviews the last reasoned decision by the state court.*fn11 Under AEDPA, the state court's findings of fact are presumed to be correct unless the petitioner rebuts this presumption by clear and convincing evidence.*fn12

To the extent that Rikard raises issues of the proper application of state law, they are beyond the purview of this Court in a federal habeas proceeding. It is a fundamental precept of dual federalism that the states possess primary authority for defining and enforcing the criminal law.*fn13 A ...

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