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Thomas v. Yates


January 27, 2010


The opinion of the court was delivered by: John W. Sedwick United States District Judge


Petitioner, Thomas Jennins Thomas, a state prisoner appearing pro se, has filed a petition for habeas corpus relief under 28 U.S.C. § 2254. Thomas is presently in the custody of the California Department of Corrections and Rehabilitation, incarcerated at the Pleasant Valley State Prison. Respondent has answered the petition, and Thomas has replied.


After a jury trial, Thomas was convicted in the San Joaquin County Superior Court of one count each of voluntary manslaughter (Cal. Penal Code § 192(a)),*fn2 discharge of a firearm in a grossly negligent manner (Cal. Penal Code § 246.3), and possession of a firearm by a felon (Cal. Penal Code § 12021(a)(1)). The trial court concluded that Thomas' conviction of voluntary manslaughter was contrary to law and reduced the voluntary manslaughter conviction to an involuntary manslaughter conviction. The trial court then sentenced Thomas to consecutive terms in the aggregate of 85 years to life. Thomas timely appealed his conviction and sentence to the California Court of Appeal, Third District, which affirmed his conviction and sentence in an unpublished reasoned decision.*fn3 The California Supreme Court summarily denied review without opinion or citation to authority on September 21, 2005. While his appeal was pending, Thomas filed a petition for habeas corpus relief in the San Joaquin Superior Court, which denied his petition. Subsequent petitions for habeas relief in the California Court of Appeal, Third District, and California Supreme Court were denied on May 12, 2005, and April 11, 2007, respectively. Thomas timely filed his petition for relief in this court on June 3, 2007.


Thomas raises five grounds in his petition: (1) insufficiency of the evidence to support a conviction of involuntary manslaughter; (2) trial court erred in instructing the jury that an adverse inference could be drawn from Thomas's testimony (CALJIC 2.62);*fn4 (3) trial court erred in finding the involuntary manslaughter charge did not arise on the same occasion and from the same operative circumstances as the other offenses of which he was convicted; (4) the imposition of consecutive sentences violated Blakely/Apprendi;*fn5 and (5) one of the two priors used to trigger the Three-Strikes law was invalid and should not have been used. Respondent has not asserted any affirmative defense to the remaining grounds.*fn6


Because the petition was filed 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 decision of the state court was "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."*fn7 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."*fn8 The holding must also be binding upon the states; that is, the decision must be based upon constitutional grounds, not on the supervisory power of the Supreme Court over federal courts.*fn9 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.'"*fn10 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.*fn11 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.*fn12 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 outcome.*fn13

In applying this standard, this court reviews the last reasoned decision by the state court.*fn14 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.*fn15 This presumption applies to state trial courts and appellate courts alike.*fn16


Ground 1: Insufficiency of the Evidence

Thomas argues that the involuntary manslaughter conviction must be vacated because the evidence was insufficient to support a finding that the battery that resulted in the death was dangerous under the circumstances. In rejecting Thomas's argument, the California Court of Appeal held:

The jury convicted defendant of voluntary manslaughter and found the firearm use enhancements not to be true. Exercising its independent judgment, the trial court reduced the conviction to involuntary manslaughter because the jury had found that defendant did not use a weapon to strike Hillary and thus, a voluntary manslaughter conviction was contrary to law.FN1 Defendant contends insufficient evidence supports an involuntary manslaughter conviction because the unlawful act committed, that is, battery, was not dangerous under the circumstances, claiming he is much shorter than Hillary, they were both under the influence at the time, and Hillary's death was a "fluke."

FN1 Neither party raises an issue with respect to the trial court's act of reducing the conviction. (See § 1181, subd. 6; People v. Robarge (1953) 41 Cal.2d 628, 633; People v. Johnston (2003) 113 Cal.App.4th 1299, 1307-1308.) "In assessing the sufficiency of the evidence, we review the entire record in the light most favorable to the judgment to determine whether it discloses evidence that is reasonable, credible, and of solid value such that a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt. [Citations.] Reversal on this ground is unwarranted unless it appears 'that upon no hypothesis whatever is there sufficient substantial evidence to support [the conviction].' [Citation.]" (People v. Bolin (1998) 18 Cal.4th 297, 331.)

As relevant here, involuntary manslaughter is the unlawful killing of a human being without malice in the commission of an unlawful act, not amounting to a felony. (§ 192, subd. (b).) The unlawful act must be "dangerous to human life or safety under the circumstances of its commission." (People v. Cox (2000) 23 Cal.4th 665, 675.) "A battery is any willful and unlawful use of force or violence upon the person of another." (§ 242.) "[T]he slightest touching may constitute a battery." (People v. Cox, supra, at p. 674.) A battery may constitute an unlawful act for purposes of involuntary manslaughter "if shown to be dangerous under the circumstances of [its] commission." (Id. at p. 674.)

Here, defendant did not simply touch Hillary. Defendant hit Hillary in the head with a closed fist. Defendant swung with almost all his might and hit Hillary suddenly with a solid punch. Defendant intended to knock Hillary out. Defendant knew that Hillary had been drinking that night and was vulnerable. Defendant offered no aid to Hillary, leaving him lying unconscious in the street. Defendant's use of force was dangerous to Hillary's life or safety under the circumstances. Sufficient evidence supports defendant's conviction for involuntary manslaughter.*fn17

As stated by the Supreme Court in Jackson,*fn18 the constitutional standard for sufficiency of the evidence is whether, "after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt."*fn19 This court must, therefore, determine whether the decision by the California Court of Appeal unreasonably applied Jackson.

Thomas misperceives the role of a federal court in a habeas proceeding challenging a state court conviction. This court is precluded from either re-weighing the evidence or assessing the credibility of witnesses. Under Jackson, the role of this court is to simply determine whether there is evidence, which if accepted as credible by the jury, is sufficient to sustain the conviction.*fn20 The record here shows that such evidence was presented. Thomas has failed to carry his burden to show by clear and convincing evidence that the factual findings were erroneous.

The States possess primary authority for defining and enforcing the criminal law.*fn21

Consequently, although the sufficiency of the evidence review by this court is grounded in the Fourteenth Amendment, it must undertake its inquiry by reference to the elements of the crime as set forth in state law.*fn22 This court is mindful of the deference owed to the trier of fact and the limited nature of constitutional sufficiency review.*fn23 In this case, the California Court of Appeal found that, under the elements of the crime as defined by state law, the evidence was sufficient to sustain Thomas's conviction.

This court cannot say on the record before it that the decision of the California Court of Appeal "was 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 rendered its decision"or "was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding."*fn24 Thomas is not entitled to relief on his first ground.

Ground 2: CALJIC 2.62

This ground was previously dismissed by the court as unexhausted. Even if Thomas had properly exhausted his state court remedies as to this ground he would not prevail. When taken as a whole, CALJIC No. 2.62*fn25 clearly preserved the government's responsibility to prove the elements of their case, and did not require Thomas to explain the evidence against him. While the instruction did call the jury's attention to his testimony, it did so merely to point out that the jury "may" take the defendant's failure to explain facts within his knowledge into consideration.

This is fully consistent with established federal law, which provides that a testifying defendant "may not stop short in his testimony by omitting and failing to explain incriminating circumstances and events already in evidence, in which he participated and concerning which he is fully informed, without subjecting his silence to the inferences to be naturally drawn from it."*fn26 Consequently, even on the merits, Thomas is not entitled to relief on his second ground.

Ground 3: Involuntary Manslaughter Arose Out of Same Occasion and Operative Facts

Thomas challenges the trial court's application of the mandatory consecutive sentencing provision of California's Three Strikes law to his three underlying convictions.*fn27 With the exception of two citations to Blakely,*fn28 Thomas relies entirely upon California statutes and case law throughout his argument to support his assertion that these three offenses occurred on the "same occasion" and "shared the same set of operative facts," thereby precluding mandatory consecutive sentences. The California Court of Appeal rejected Thomas's arguments, holding:

At sentencing, defendant claimed the possession offense was committed on the same occasion and arose from the same set of operative facts as the negligent discharge offense; thus, he asserted the court had the discretion to impose concurrent sentences.

In sentencing defendant under the "Three Strikes" law and imposing consecutive sentences on counts 1, 2 and 3, the court concluded none of the offenses arose out of the same set of operative facts. The court determined defendant's possession of the gun was antecedent and separate from the other offenses. The court found defendant's possession was complete when defendant obtained the gun at his nephew's home where defendant stayed for 20 minutes. The court further found the battery on Hillary was an intervening event.

Section 1170.12, subdivision (a)(6) requires consecutive sentences "[i]f there is a current conviction for more than one felony count not committed on the same occasion, and not arising from the same set of operative facts...." "'[C]ommitted on the same occasion' is commonly understood to refer to at least a close temporal and spatial proximity between two events, although it may involve other factors as well." (People v. Deloza (1998) 18 Cal.4th 585, 594.)

Other factors include "whether the offenses were committed simultaneously against the same group of victims, whether the criminal activity was interrupted, whether there was any event that could be considered to separate one event from another event, and whether the elements of one offense have been satisfied in a manner to render that offense completed before the commission of further criminal acts...." (People v. Jenkins (2001) 86 Cal.App.4th 699, 706.) The "same set of operative facts" means "sharing common acts or criminal conduct that serves to establish the elements of the current felony offenses...." (People v. Lawrence (2000) 24 Cal.4th 219, 233.) But "different operative facts could well be involved in a situation where the elements of one offense were completed before the commission of other criminal acts that constituted the elements of the other separately chargeable offense or offenses, even where the different offenses occurred close in proximity and in time." (People v. Jenkins, supra, 86 Cal.App.4th at p. 706.)

Defendant complains the trial court erroneously relied on case law relevant to the analysis under section 654 (citing People v. Hudgins (1967) 252 Cal.App.2d 174, People v. Ratcliff (1990) 223 Cal.App.3d 1401, People v. Venegas (1970) 10 Cal.App.3d 814, People v. Bradford (1976) 17 Cal.3d 8) when such analysis is not the same as that under the Three Strikes law (People v. Deloza, supra, 18 Cal.4th at p. 588). We disagree. The trial court understood the scope of its discretion. The record reflects that the trial court cited and quoted People v. Deloza, People v. Jenkins, supra, 86 Cal.App.4th 699 and People v. Lawrence, supra, 24 Cal.4th 219.

The trial court properly concluded none of defendant's offenses occurred on the same occasion or shared the same set of operative facts. Defendant obtained the gun at his nephew's home and the operative facts were complete at that moment to support being a convicted felon in possession of a firearm. Twenty minutes later, defendant left his nephew's home and headed to Black's home to pursue Williams for a monetary debt. Prior to arrival at Black's home, defendant encountered Hillary and Williams on the street. Defendant battered Hillary, killing him. The operative facts for involuntary manslaughter were at that moment complete. Defendant then pursued Williams, within minutes after battering Hillary, traveled two houses down the street, through the yard and onto the porch of Black's home. When he encountered Black and Gorman, defendant drew his gun and fired it into the air. The facts necessary to show possession for count 2, discharging a firearm, were not necessary to show possession for count 3, convicted felon in possession of a firearm. The possession for these two counts occurred at different times and places and was interrupted by an intervening criminal event, defendant's battery of Hillary. The trial court properly imposed consecutive sentences under the Three Strikes law.*fn29

This court is bound by the factual findings of the California court.*fn30

The Supreme Court has noted that, because California law recognizes that imposition of consecutive sentences for criminal offenses must not arise out of the same criminal transaction or the same operative set of facts, it does not run afoul of the federal constitution.*fn31 The proper application of state law is beyond the purview of this Court in a federal habeas proceeding. The states possess primary authority for defining and enforcing the criminal law.*fn32 A fundamental principle of our federal system is "that a state court's interpretation of state law, including one announced on direct appeal of the challenged conviction, binds a federal court sitting in habeas corpus."*fn33 This principle applied to federal habeas review of state convictions long before AEDPA.*fn34 A federal court errs if it interprets a state legal doctrine in a manner that directly conflicts with the state supreme court's interpretation of the law.*fn35

A determination of state law by a state intermediate appellate court is also binding in a federal habeas action.*fn36 This is especially true where the highest court in the state has denied review of the lower court's decision.*fn37 A petitioner may not transform a state law issue into a federal one by simply asserting a violation of due process.*fn38 Nor may a federal court issue a habeas writ based upon a perceived error of state law, unless the error is sufficiently egregious to amount to a denial of due process under the Fourteenth Amendment.*fn39 Having failed to raise a viable issue of federal constitutional law, Thomas is not entitled to relief on his third ground.

Ground 4: Blakely/Apprendi Violation

Thomas argues that imposition of consecutive sentences under the Three Strikes law violated Blakely/Apprendi because it was based upon facts, the existence of the prior convictions, found by the judge, not the jury. Thomas's arguments fail on two bases. First, Apprendi held: "[o]ther than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt."*fn40 Second, the Supreme Court recently held that the Sixth Amendment does not preclude the imposition of consecutive sentences based upon the findings of fact by a judge rather than a jury.*fn41 Thomas is not entitled to relief on his fourth ground.

Ground 5: Prior Conviction

Thomas contends his 1992 conviction for robbery, which was used to trigger his sentence under the Three Strikes law, is invalid because he pled after the prosecutor failed to disclose impeachment evidence against one witness in violation of Brady;*fn42 or, if the evidence was disclosed, then Thomas's counsel was ineffective for failing to explain it to him before he pled guilty. Thomas raised this claim in his habeas petition before the California Supreme Court, which summarily denied it without an opinion or citation to authority.

When there has been no reasoned state court decision denying an issue presented to the state court, this court must assume the state court decided all the issues presented to it and perform an independent review of the record to ascertain whether the state court decision was objectively unreasonable.*fn43 The scope of this review has been described as follows:

[A]lthough we cannot undertake our review by analyzing the basis for the state court's decision, we can view it through the "objectively reasonable" lens ground by Williams. . . . Federal habeas review is not de novo when the state court does not supply reasoning for its decision, but an independent review of the record is required to determine whether the state court clearly erred in its application of controlling federal law. Only by that examination may we determine whether the state court's decision was objectively reasonable.*fn44

It has also been noted that "although we independently review the record, we still defer to the state court's ultimate decision."*fn45

Respondent contends this does not raise a federal constitutional issue cognizable here. The court agrees. Supreme Court case law shows a criminal defendant may not challenge the validity of a prior conviction used to enhance a sentence imposed in a current conviction in a federal habeas proceeding under § 2254.*fn46 There is a recognized exception for failure to appoint counsel.*fn47 The Supreme Court has also noted that "'there may be rare cases in which no channel of review was actually available to a defendant with respect to a prior conviction due to no fault of his own,' in which case a prisoner may be able to use [a petition under § 2254] to challenge the prior conviction as well as the [] sentence based on it."*fn48 Neither exception applies in this case.*fn49 Thomas is not entitled to relief on his fifth ground.


Thomas is not entitled to relief on any grounds raised in the petition. Accordingly, IT IS ORDERED THAT the Petition for a writ of habeas corpus under 28 U.S.C. § 2254 is DENIED.

IT IS FURTHER ORDERED THAT the Court declines to issue a Certificate of Appealability.*fn50 Any further request for a Certificate of Appealability must be addressed to the Court of Appeals. See Fed. R. App. P. 22(b); Ninth Circuit R. 22-1.

The Clerk of the Court will please enter final judgment accordingly.

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