UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF CALIFORNIA
March 22, 2010
BRENT KENNETH TYLER, PETITIONER,
DARRAL G. ADAMS, RESPONDENT.
The opinion of the court was delivered by: J. Clifford Wallace United States Circuit Judge
Tyler, a state prisoner, filed a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254, challenging his sentence of 25 years to life, imposed pursuant to his guilty plea of one count of penetration with a foreign object with enhancements admitted for committing that crime during a burglary and involving binding the victim.
I have reviewed the petition, the respondent's answer, the traverse, and all supporting documents. I hold that Tyler is not entitled to the relief requested and order that the petition be denied.
The following is a summary of the facts, found by the California Court of Appeal in its opinion, which in turn referred to the transcript of the preliminary hearing and probation report:
[Tyler] was the former boyfriend of the victim. Since their breakup, [Tyler] had mentioned to the victim that he was concerned for her safety, and he called her on the night of the offense to inquire about her welfare and to verify that she was continuing to house-sit in Wilton. When the victim returned to the residence that night, she was confronted by an individual (defendant) wearing a ghoulish Halloween mask and armed with a handgun. Defendant handcuffed and blindfolded the victim, pulled her into a bedroom and pushed her down onto a bed. After ransacking her purse, defendant tied the victim's legs with plastic zip ties.
The victim heard defendant leave the bedroom several times, go outside through the sliding glass door, and then return a short while later. During several of those absences, defendant tried to call the victim on her cellular phone, and she heard defendant leave two messages on the answering machine at the residence. In one message, defendant stated he felt something bad might happen to the victim. In the second, he said he was going to drive to the residence.
During one of defendant's absences, the victim loosened the ties on her feet, got up, and locked herself in a bathroom. When defendant returned, he kicked the door until it broke open. Defendant made the victim lie down on the bed again, bound her with zip ties and tape, unzipped her sweater, and cut open her T-shirt and bra. Defendant removed the gloves he was wearing, and rubbed the victim's breasts and nipples with both hands. He then pulled the victim's pants and underwear to her knees, forcibly spread her legs, inspected her, inserted a cylindrical object into her vagina, and rocked it back and forth. Defendant also nuzzled the victim's face, neck, chest and thighs with the muzzle of the handgun. Defendant then turned the victim over, rubbed her buttocks, removed the handcuffs, bound her hands and legs with zip ties, covered the victim's face with pillows, and departed with the victim's car keys and $10 from her purse. Defendant drove the victim's car to another location in Wilton and abandoned it.
The victim managed to free herself enough to call her mom for help, and to hop to the bushes behind the residence in case the assailant returned. Defendant arrived at the residence shortly after the victim's father, but left after crime scene investigators arrived and questioned him. Officers surveilled defendant drive to a nearby road, where he threw a backpack into the ditch. The backpack was later found to contain several items used during the crime, including a pellet handgun that closely resembled an authentic handgun.
During a search of defendant's residence, his 15-year-old sister stated that defendant owned a pellet gun and showed investigators the box where he kept it. The serial number on the box matched the serial number on the pellet gun recovered from the backpack that defendant had abandoned in the ditch.
Defendant's sister also told investigators that defendant had worn a Halloween mask the preceding Sunday and asked her whether she could tell if it was him through the mask.
Following his arrest, advisement and waiver of rights, defendant admitted that he was the perpetrator. [Lodged Doc. 4, Jan. 9, 2006, Opinion of the California Court of Appeal, Third Appellate District, Case No. C047993 (hereinafter Cal. App. Op.) at 2-4.]
The following summary of procedural background is also taken from that opinion:
Defendant was charged by information with single counts of burglary (§ 459 -- count one), unlawfully violating the personal liberty of another by violence, menace, fraud or deceit (§ 236 -- count two), penetrating the genital opening of another by force, violence, duress, menace, or fear of immediate and unlawful bodily injury (§ 289, subd. (a)(1) -- count three), robbery (§ 211 -- count four), vehicle theft (Veh. Code, § 10851, subd. (a) -- count five), and six counts of willful and unlawful touching of the intimate part of another (§ 243.4, subd. (a) -- counts six through eleven).
As to count three, the information also alleged that the crime occurred during a burglary (§ 667.61, subds.(d)(4) & (e)(2)), defendant personally used a dangerous or deadly weapon (subd. (e)(4)), and he tied or bound the victim (subd. (e)(6)). As to all counts except one and three, the information alleged that defendant personally used a deadly or dangerous weapon within the meaning of section 12022, subdivision (b).
In exchange for dismissal of the other counts and enhancements, defendant pled guilty to count three (§ 289, subd. (a)(1)) and admitted that the offense occurred during the commission of a burglary (§ 667.61, subd. (e)(2)) and that he had tied or bound the victim (subd. (e)(6)). Defendant stipulated to a prison term of 25 years to life.
At sentencing, defense counsel did not contend the sentence was unconstitutional. He simply observed that the sentence was "inappropriate" in light of defendant's youth and absence of a criminal record. Counsel stated: "This is a terrible situation, Your Honor, there is no good result [that] can come out with these kinds of circumstances, but it is troubling that our society has decided to take somebody who is 19 years old and sentence them to basically life in prison. There are very few people who receive parole from a 25 years-to-life sentence. Perhaps in 20 years that may change. But for the conduct, actual conduct itself 11 years maximum upper term. The enhancements are the things that give it the 25 to life. And it's my position that that's inappropriate at sentencing. This is what we bargained for, this is what we're willing to accept, but I do want the court and the record to reflect that I think it's an entirely inappropriate sentence to have a person committed and their life basically warehoused when, in fact, there is no probation available. There is opportunity for improvement, there is opportunity for contributing in life in a significant way other than from the inside of prison. With that statement, we will submit it." In imposing the stipulated sentence, the court observed that defendant would be eligible for parole at a comparatively young age if he were an "exemplary inmate" in prison. [Cal. App. Op. at 5-6 (all statutory citations, unless otherwise stated, are to the California Penal Code).]
Tyler appealed to the California Court of Appeal, Third Appellate Division, which affirmed his conviction and sentence in an unpublished opinion on January 9, 2006. [Lodged Doc. 4.] On March 22, 2006, Tyler's petition for review by the California Supreme Court was denied. [Lodged Doc. 6.]
Tyler filed the present petition on February 23, 2007. On April 16, 2007, Judge Edmund F. Brennan of the Eastern District of California ordered respondent to answer the petition. Respondent's answer was filed on June 14, 2007. Tyler filed a traverse on August 15, 2007. On December 9, 2008, the case was reassigned to me.
The petition is governed by Title 28, United States Code section 2254, as amended by the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA). Section 2254(a) provides that a district court may entertain an application for writ of habeas corpus "only on the ground that [the state prisoner] is in custody in violation of the Constitution or laws or treaties of the United States." 28 U.S.C. § 2254(a).
To obtain federal habeas relief, Tyler must satisfy either section 2254(d)(1) or section 2254(d)(2). See Williams v. Taylor, 529 U.S. 362, 403 (2000). As amended, 28 U.S.C. § 2254(d) provides that:
(d) An application for a writ of habeas corpus on behalf of a person in custody pursuant to the judgment of a State court shall not be granted with respect to any claim that was adjudicated on the merits in State court proceedings unless the 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.A. § 2254(d)(1)-(2). The Supreme Court interprets section 2254(d)(1) as follows:
Under the "contrary to" clause, a federal habeas court may grant the writ if the state court arrives at a conclusion opposite to that reached by this Court on a question of law or if the state court decides a case differently than this Court has on a set of materially indistinguishable facts. Under the "unreasonable application" clause, a federal habeas court may grant the writ if the state court identifies the correct governing legal principle from this Court's decisions but unreasonably applies that principle to the facts of the prisoner's case.
Williams, 529 U.S. at 412-13.
The deferential standard of review under AEDPA requires "that state-court decisions be given the benefit of the doubt." Woodford v. Visciotti, 537 U.S. 19, 24 (2002). A district court generally gives deference to state court findings of facts and presumes them to be correct. 28 U.S.C. § 2254(e)(1). Federal courts may address errors of state law only if they rise to the level of a constitutional violation. Oxborrow v. Eikenberry, 877 F.2d 1395, 1400 (9th Cir. 1989). Federal courts are bound by the states' interpretations of their own laws. Estelle v. McGuire, 502 U.S. 62, 68 (1991); Himes v. Thompson, 336 F.3d 848, 852 (9th Cir. 2003).
Where there is no reasoned decision from the state's highest court, the district court "looks through" to the last reasoned state court decision. Ylst v. Nunnemaker, 501 U.S. 797, 801 (1991); Van Lynn v. Farmon, 347 F.3d 735, 738 (9th Cir. 2003). If the dispositive "state court order does not furnish a basis for its reasoning," a federal habeas court must conduct an independent review of the record to determine whether the state court's decision is contrary to, or an unreasonable application of, clearly established Supreme Court law. Delgado v. Lewis, 223 F.3d 976, 981-82 (9th Cir. 2000); Himes, 336 F.3d at 853. Adjudications by state intermediate appellate courts and trial courts are entitled to the same AEDPA deference given to the state supreme court. Medley v. Runnels, 506 F.3d 857, 863 (9th Cir. 2007) (en banc). Here, the last reasoned state court decision is that of the California Court of Appeal, Third Appellate District. [Lodged Doc. 4.]
Tyler's main contention in his petition is that his sentence is so disproportionate to his crime as to constitute cruel and unusual punishment in violation of the Eighth Amendment to the United States Constitution and/or of the California Constitution. Warden Adams argues that, as a threshold matter, Tyler cannot appeal the constitutionality of his sentence because he waived his right to appeal at the time he entered his guilty plea. [Response at 10-15.] Tyler counters that his waiver of appellate rights was not valid because although he "did generally waive his right to appeal," he did not knowingly and intelligently waive his right to challenge the constitutionality of his sentence; alternatively, Tyler argues that if his waiver was valid, then he was denied the effective assistance of counsel because his counsel should have adequately raised and preserved for appeal such a constitutional challenge.
I turn first to the threshold issue of Tyler's waiver, and the attendant question of effective assistance of counsel. First, the waiver was valid under California law. The California Supreme Court, in People v. Panizzon, 13 Cal. 4th 68 (Cal. 1996), dealt with a defendant who sought to attack his sentence imposed pursuant to a plea bargain. The court held that the defendant was barred from challenging the negotiated sentence because the terms of the plea bargain prohibited such a challenge. Id. at 79-80. The court held that a defendant may waive the right to appeal as part of a plea agreement, and such a waiver (whether oral or in writing) is enforceable as long as it is "knowing, intelligent, and voluntary." Id. at 80. The court held that the waiver in that case was knowing, intelligent and voluntary where, "[e]ven though the trial court did not admonish defendant regarding the right to appeal," the defendant had represented, in the waiver and plea agreement signed by defendant and his attorney, that "he understood the sentence that would be imposed if he pleaded no contest, that he had discussed with his attorney both the paragraph specifying the sentence to be imposed and the paragraph containing the waiver of the right to appeal the sentence, and that he fully understood all matters set forth in the document without exception." Id. at 84. Moreover, the waiver and plea agreement contained a representation by defendant's counsel that "he personally went over the document with defendant and concurred in defendant's decision to waive the rights specified in the document, as well as counsel's stipulation that the trial court could consider the document as evidence of defendant's intelligent waiver of such rights." Id. Finally, at the court hearing, both defendant and his attorney attested to the document's valid execution, and the in-court questioning of defendant and his attorney raised no doubts as to defendant's understanding of his rights and the consequences of his no contest plea. Id.
In Tyler's case, there was no written plea agreement, but the California Court of Appeal observed that:
Prior to waiver of defendant's constitutional rights and the right to appeal, the court asked defense counsel whether he had explained to defendant all of his rights, including the right to appeal. Counsel responded that he had. The court then asked whether counsel believed that defendant "understands all of these matters?" Counsel responded affirmatively. The court asked defendant whether he had "thoroughly discussed the impact of this plea and admission with your attorney," to which defendant responded, "Yes." The court then asked defendant, "Do you now specifically waive any and all appellate rights that you have with regard to pleas that you've just entered in the sentence that would be imposed?" Defendant again replied: "Yes." The court found a factual basis for the pleas and admissions, and that both the pleas and waiver were made knowingly, intelligently and voluntarily.
[Cal. App. Op. at 7-8; see also Reporter's Transcript on Appeal, June 17, 2004 (Entry of Plea) at 5-11.] This case presents all of the elements that made up a valid waiver in Panizzon: Tyler indicated that he understood the sentence that would be imposed pursuant to his plea, that he had discussed with his attorney the implications of his plea, and that nothing was said in court that would have shed any doubt on whether he understood the rights he was waiving. Panizzon also rejected an argument that the issue of disproportionality of the sentence was an "unforeseen or unknown error" at the time of the waiver, reasoning that "the sentence imposed by the court was neither unforeseen nor unknown at the time defendant executed the Waiver and Plea agreement. Moreover, the essence of defendant's claim is that his sentence is disproportionate to his level of culpability . . ., a factor that also was known at the time of the plea and waiver." Id. at 86.
Alternatively, Tyler argues that if the waiver was valid, he was denied the effective assistance of counsel. To demonstrate ineffective assistance of counsel, Tyler must show (a) that his counsel's performance was deficient, and (b) that the deficient performance prejudiced him. Strickland v. Washington, 466 U.S. 668, 687 (1984). Counsel is "presumed to have rendered adequate assistance and made all significant decisions in the exercise of reasonable professional judgment." Id. at 690. Counsel's performance must fall "outside the wide range of professionally competent assistance" before it may be deemed deficient. Id. To demonstrate prejudice, Tyler must show that "counsel's constitutionally ineffective performance affected the outcome of the plea process." Hill v. Lockhart, 474 U.S. 52, 59 (1985). "In other words, in order to satisfy the 'prejudice' requirement, the defendant must show that there is a reasonable probability that, but for counsel's errors, he would not have pleaded guilty and would have insisted on going to trial." Id. (footnote omitted). Tyler fails to show either a constitutionally deficient performance or prejudice. Tyler argues that there was "no tactical reason for presenting mitigation evidence and then also waiving any right to challenge the sentence." However, as the California Court of Appeal pointed out, there was a tactical benefit to stipulating to a specified sentence and waiving appeal rights; Tyler obtained dismissal of other counts and enhancements (including counts of burglary; unlawful violation of the personal liberty of another by violence, menace, fraud or deceit; robbery; vehicle theft; six counts of willful and unlawful touching; and as to all but the burglary count, a possible enhancement for use of a deadly or dangerous weapon), which could have resulted in a longer sentence if sentences for those other counts had been imposed consecutively. [Cal. App. Op. at 10 n.2.] Moreover, Tyler does not even attempt to argue that if he had understood that his counsel's decisions would result in a waiver of his right to appeal the constitutionality, he would have insisted on going to trial.
Even assuming arguendo that Tyler's waiver does not bar his appeal of the constitutionality of his sentence, his disproportionality argument fails on its merits. "The Eighth Amendment, which forbids cruel and unusual punishments, contains a narrow proportionality principle that applies to non-capital sentences." Ewing v. California, 538 U.S. 11, 20 (2003) (internal quotation marks and citations omitted). However, the Supreme Court has admitted that "our precedents in this area have not been a model of clarity. . . . [I]n determining whether a particular sentence for a term of years can violate the Eighth Amendment, we have not established a clear or consistent path for courts to follow." Lockyer v. Andrade, 538 U.S. 63, 72 (2003). The Supreme Court has described the "one governing legal principle" that has been "clearly established" as follows: "A gross disproportionality principle is applicable to sentences for terms of years." Id. The "precise contours of [the "gross disproportionality" standard] are unclear," but it is generally held that the standard will apply "only in the 'exceedingly rare' and 'extreme' case." Id. at 73 (citing Harmelin v. Michigan, 501 U.S. 957, 1001 (1991)). Those are the only principles that are amenable to the "contrary to" or "unreasonable application of" framework used in habeas cases like this one. Id. at 73.
I hold here that the California Court of Appeal did not "appl[y] a rule that contradicts the governing law" set forth by the Supreme Court, and it did not "confront a set of facts that are materially indistinguishable from" a Supreme Court decision and arrive at a different result than the Supreme Court. Id. In Ewing, the Supreme Court held that a sentence of 25 years to life, under a "three-strikes" recidivism statute, was not unconstitutionally disproportionate to his offense of a theft of three golf clubs, worth a total of about $1,200. Three members of the court reasoned that the penalty was not "grossly disproportionate," id. at 30-31, while two other members of the court concurred in the judgment on the ground that the proportionality principle is incapable of intelligent judicial application. Id. at 31-32 (Scalia, J., concurring in judgment; Thomas, J., concurring in judgment). In Lockyer, the Court held that an affirmance of two consecutive terms of 25 years to life in prison for a "three-strikes" conviction involving theft of videotapes worth less than $155 was not contrary to or an unreasonable application of clearly established law. 538 U.S. at 77. In Rummel v. Estelle, the Court held that a mandatory life sentence (with possibility of parole) for a conviction for felony theft pursuant to a recidivism statute did not constitute cruel and unusual punishment. 445 U.S. 263, 284-85 (1980). In Hutto v. Davis, a sentence of two consecutive terms of 20 years for possession with intent to distribute and distribution of marijuana was held constitutional. 454 U.S. 370, 374 (1982). Harmelin upheld a mandatory sentence of life in prison without the possibility of parole for a first-time offender convicted of possessing 672 grams of cocaine, although the Court did not agree on the reasoning. 501 U.S. 957. The foregoing precedents demonstrate that the Supreme Court has upheld similar or even more severe sentences than that imposed on Tyler for crimes that are not clearly of a categorically more severe nature than Tyler's. Moreover, Harmelin upheld a life sentence without the possibility of parole for a defendant who was, like Tyler, a first-time offender. I conclude that the California Court of Appeal did not misapply Supreme Court precedent in holding that Tyler's sentence was not "grossly disproportionate" to his crimes. [Cal. App. Op. at 19.]
The only recent case in which the Supreme Court struck down a sentence as unconstitutional is distinguishable from Tyler's case. In Solem v. Helm, the defendant had been sentenced to life without possibility of parole after a conviction for "uttering a 'no account' check for $100," pursuant to a recidivism statute. 463 U.S. 277 (1983), In stark contrast to Tyler's offense, in Solem all of the defendant's prior offenses "were nonviolent and none was a crime against a person." Id. at 297. This is not a case where the California Court of Appeal confronted facts that were "materially indistinguishable" from a Supreme Court precedent. Moreover, Tyler's petition urges that a court must consider his young age (19) at the time of the offense, but the case he cites in support of that proposition, Thompson v. Oklahoma, 487 U.S. 815 (1988), involves a capital sentence. The Supreme Court has held that such mitigating factors have a place in Eighth Amendment analysis of imposition of the death penalty, but has expressly declined to extend such required "individualized" sentencing to other types of penalties, even life in prison without parole. Harmelin, 501 U.S. at 995. The fact that a victim did not suffer permanent physical injury is similarly not a factor that has been considered by the Supreme Court in weighing the proportionality of a prison term; rather, as noted above, Supreme Court precedent has considered whether the offense or offenses were violent. Tyler's acts were apparently premeditated as observed by the California Court of Appeal [Cal. App. Op. at 14-15] and undeniably violent; he was convicted of penetrating his victim with a foreign object, with enhancements for binding his victim and committing the crime during a burglary.
Finally, to the extent that Tyler also argues his sentence violated the California Constitution's prohibition on cruel and unusual punishment, "it is not the province of a federal habeas court to re-examine state-court determinations on state-law questions. In conducting habeas review, a federal court is limited to deciding whether a conviction violated the Constitution, laws, or treaties of the United States." Estelle, 502 U.S. at 67-68; see also 28 U.S.C. § 2254(a) (authorizing federal courts to entertain petitions for a writ of habeas corpus "only on the ground that he is in custody in violation of the Constitution or laws or treaties of the United States").
In sum, I hold that the California Court of Appeal's decision was not "contrary to" or "an unreasonable application of" clearly established Supreme Court precedent in holding that Tyler's sentence of 25 years to life in prison was not grossly disproportionate to his crime, and I hold that this is not one of the "extraordinary" cases that establishes a constitutional violation of the gross disproportionality principle of the Eighth Amendment. Andrade, 538 U.S. at 77. Tyler's petition for a writ of habeas corpus is denied.
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