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Clemon v. Kernan

February 25, 2010

LAUNDRE CLEMON PETITIONER,
v.
SCOTT KERNAN, ET AL., RESPONDENTS.



FINDINGS AND RECOMMENDATIONS

Petitioner is a state prisoner proceeding in propria persona with an application for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. Petitioner challenges a September 12, 2003 judgment of conviction entered against him in the Placer County Superior Court on charges of two counts of grand theft, two counts of uttering fictitious checks, and two counts of second degree burglary, with an allegation that petitioner committed the offenses while released on his own recognizance in another pending case. He seeks relief on the grounds that: (1) jury instruction error violated his right to due process; and (2) the evidence was insufficient to support one of his convictions for grand theft. Upon careful consideration of the record and the applicable law, the undersigned recommends that petitioner's application for habeas corpus relief be denied.

I. Procedural and Factual Background*fn1

A jury convicted defendant Laundre Randell Clemon of two counts of grand theft (Pen.Code, § 487, subd. (a); further section references are to this code), two counts of uttering fictitious checks (§ 476), and two counts of second degree burglary (§ 459), and found that he committing the crimes while released on bail or his own recognizance in another case (§ 12022.1). He was sentenced to a state prison term of three years four months to run consecutively to a term imposed in another case.

On September 25, 2002, defendant went into a jewelry store and bought a man's ring for $402.17. He paid for the ring with a check written on his bank account that had been overdrawn and closed for nearly five years. He initialed a sales slip with the name and address on the check.

The next day, defendant brought a woman into the jewelry store and bought two more rings, again paying by check drawn on his closed account. Before defendant picked up the receipt, the owner discovered the check was drawn on a long-closed account. Defendant left with the rings. The owner called the police and followed defendant.

Roseville police recovered one ring and partial checkbooks from defendant's pockets.

Defendant's mother testified she told him before the thefts that she was going to deposit more than $1,000 into his account but forgot to do so.

II. Analysis

A. Standards for a Writ of Habeas Corpus

Federal habeas corpus relief is not available for any claim decided on the merits in state court proceedings unless the state court's 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.

28 U.S.C. § 2254(d).

Under section 2254(d)(1), a state court decision is "contrary to" clearly established United States Supreme Court precedents "if it 'applies a rule that contradicts the governing law set forth in [Supreme Court] cases', or if it 'confronts a set of facts that are materially indistinguishable from a decision'" of the Supreme Court and nevertheless arrives at a different result. ...


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