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Post v. Marshall

March 8, 2010


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


Petitioner Peter Paul Post, a state prisoner proceeding pro se, has filed a petition for habeas corpus relief under 28 U.S.C. § 2254. Post is currently in the custody of the California Department of Corrections and Rehabilitation, incarcerated at the California Men's Colony. Respondent has answered, and Post has replied.


Following a jury trial, Post was convicted in the California Superior Court, Sacramento County, of first-degree burglary (Cal. Penal Code §§ 459, 460). Post admitted four prior serious felony convictions (Cal. Penal Code § 667(a)-(i)) and service of a prior prison term (Cal. Penal Code § 667(b)). The trial court sentenced Post to an indeterminate term of 31 years to life. Post timely appealed his conviction and sentence to the California Court of Appeal, Third Division, which affirmed his conviction and sentence in an unpublished, reasoned decision.*fn2 The California Supreme Court summarily denied review without opinion or citation to authority on June 23, 2004.*fn3 Post timely filed his petition for relief in this Court on May 29, 2005.


In his petition, Post raises a single ground for relief--the trial court erred in admitting evidence of prior crimes. Respondent asserts no affirmative defenses.*fn4


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."*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 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.*fn7 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.'"*fn8 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.*fn9 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.*fn10 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.*fn11

In applying this standard, this Court reviews the last reasoned decision by the state court,*fn12 which in this case was that of the California Court of Appeal. 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.*fn13


Prior to trial, over Post's objections, the trial court ruled evidence of his prior burglaries would be admitted for the purpose of establishing his intent to commit burglary charged in this case under California Evidence Code §§ 352 and 1101. Post contends that the ruling was prejudicial error. Post argues, because there were insufficient similarities between the prior burglaries and the one currently charged, his intent in the current burglary charge could not be reasonably inferred from his intent in the prior burglaries.*fn14 The California Court of Appeal rejected Post's arguments, holding:

Subdivision (a) of [Evidence Code] section 1101 prohibits admission of evidence of a person's character, including evidence of character in the form of specific instances of uncharged misconduct, to prove the conduct of that person on a specified occasion. Subdivision (b) of section 1101 clarifies, however, that this rule does not prohibit admission of evidence of uncharged misconduct when such evidence is relevant to establish some fact [, such as the person's intent,] other than the person's character or disposition. (People v. Ewoldt (1994) 7 Cal.4th 380, 393, fn. omitted.)

The least degree of similarity (between the uncharged act and the charged offense) is required in order to prove intent . . . . In order to prove intent, the uncharged misconduct must be sufficiently similar to support the inference that the defendant 'probably harbor[ed] the same intent in each instance.' (People v. Ewoldt, supra, 7 Cal.4th at p. 402, citations omitted.)

Here, in each of the prior incidents the defendant selected first floor apartments occupied by women with young children; he surreptitiously entered in the early morning hours when the occupants were asleep; he was not deterred from assaulting the women by the presence of the children sleeping near or with them; the sexual assaults were accomplished by stealth; and, upon being discovered by the women, he neither made threats nor used force, instead, he simply ran off. Also of no little significance was the bizarreness of defendant's conduct sneaking under the blankets of Connie A. and licking her vaginal area; sneaking under the sheet of Marcelene T. and licking her buttocks; and lying behind the sofa upon which Suzanne W. was ...

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