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Tincher v. Sisto

May 12, 2010

KENNETH HARVEY TINCHER, PETITIONER,
v.
D. K. SISTO, RESPONDENT.



ORDER

Petitioner is a state prisoner proceeding pro se with a petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. Petitioner challenges the judgment of conviction entered against him by the Yolo County Superior Court in 2005 for receiving stolen property in violation of California Penal Code § 496(a). Petitioner seeks federal habeas relief on the grounds that his trial counsel rendered ineffective assistance. Upon careful consideration of the record and the applicable law, petitioner's application for habeas corpus relief will be denied.

PROCEDURAL BACKGROUND

On July 15, 2005, a Yolo County Superior Court jury found petitioner guilty of receiving stolen property. (Notice of Lodging Documents on November 18, 2008 (Doc. No. 8), Resp't's Lod. Doc. 4 at 313, 315-16.) On July 18, 2005, the trial court found, following a court trial that sentencing enhancement allegations with respect to prior conviction and three prior prison terms to be true. (Id. at 319-21.) On September 28, 2005, petitioner was sentenced to a state prison term of twenty-five years to life plus three one-year consecutive enhancement terms for the prior convictions/prisons terms. (Id. at 365-67, 371-72.)

Petitioner appealed from his conviction to the California Court of Appeal for the Third Appellate District. On May 17, 2007, the judgment of conviction was affirmed in a reasoned opinion.*fn1 (Resp't's Lod. Doc. 1.)

Petitioner then filed a petition for review with the California Supreme Court. (Resp't's Lod. Doc. 2.) On July 25, 2007, the California Supreme Court summarily denied that petition. (Resp't's Lod. Doc. 3.)

On July 25, 2008, petitioner filed this federal habeas petition. On November 18, 2008, respondent filed an answer. Petitioner then filed a traverse on December 22, 2008.

FACTUAL BACKGROUND

In its unpublished memorandum and opinion affirming petitioner's judgment of conviction on appeal, the California Court of Appeal for the Third Appellate District provided the following factual summary:

About 6:00 p.m. on August 9, 2004, while talking on the telephone with her mother, Janine Chandler looked out the window of her home and noticed a white car driving around her cul-de-sac on Bidwell Street in Davis. Her mother mentioned that defendant, Chandler's first cousin, might be "on the run" from something. Chandler mentioned the white car to her mother and 30 seconds later, defendant walked by Chandler's window. He then rang her doorbell and knocked on her door. Not knowing why defendant was on the run, Chandler locked the door, stood by the door for a few minutes and then called the police.

Shortly thereafter, Davis Police Officers Michael Moore and Steve Ramos arrived at Chandler's and found defendant lying on the grass near her apartment. Prior to arrival, Officer Moore ran defendant's name and date of birth and found no wants or warrants in the system. A white Ford Crown Victoria was parked next to the curb closest to Chandler's apartment. Officer Moore asked defendant for identification. Defendant claimed he had none and identified himself as "Jim Clark" with a birth date of April 26, 1958. Officer Moore learned from dispatch that there were no outstanding warrants for such person. Officer Moore asked defendant why defendant was there. Defendant explained he was there to see Chandler, his cousin, and had been dropped off by a friend. Defendant denied knowing anything about the white car parked at the curb. Having obtained defendant's consent, Officer Ramos searched defendant and found Ford car keys and a torn piece of envelope with Chandler's name and phone number. Officer Jeff Beasley who had arrived discovered that the Ford car keys in defendant's possession opened the white car parked at the curb. Officer Beasley felt the rim of a tire on the white car and found that it was warm suggesting that the car had just been driven. Defendant then said the Ford car keys belonged to his brother's car. Defendant claimed he was planning to work on the white car. When Officer Beasley ran the license plate (5BJK126) on the white car, he learned that it was assigned to a Chevrolet registered to Karina Ritchie of Galt. Officer Beasley then ran the vehicle identification number and learned that the white car belonged to Reba and Bradley Tincher who officers later learned were defendant's mother and brother. The proper license plate assigned to the white car was 3DGZ155. Officers suspected the car was stolen and searched it. On the driver's side floorboard, Officer Beasley found a wallet with defendant's driver's license and social security card. On the back seat under clothing and a box, Officer Beasley found a license plate (4WQY719) later learned to belong to a Chevrolet registered to Robin Grubel of Sacramento. In the car, the other half of the envelope (seized from defendant's person) was found.

Officer Moore interviewed Chandler who confirmed that defendant is her cousin. Officer Moore understood from dispatch that Chandler believed that defendant may be wanted. Chandler explained she saw a white car in the street just prior to defendant knocking on her door. Chandler provided to Officer Moore the Placerville telephone number for defendant's mother and brother. When confronted with his true identity, defendant initially denied it but eventually said that he sometimes went by his real name. Officer Moore talked on the telephone with Bradley Tincher, defendant's brother. Officer Moore asked Bradley whether defendant had permission to drive the car, when Bradley had last seen defendant and whether defendant was in any kind of trouble with police.

Based on Chandler's belief that defendant may be wanted and learning that defendant resided in El Dorado County, Officer Moore spoke to El Dorado County Deputy Sheriff Foxworthy. Deputy Foxworthy explained that there was a current case against defendant. A warrant had not yet been issued although charges were anticipated. Deputy Foxworthy referred Officer Moore to the district attorney's office and asked that the white car be searched for a black-handled hammer, evidence in the El Dorado case. Officer Ramos found such a hammer in a tool box in the back seat. Later on August 9, 2004, Officer Moore received a fax from El Dorado County with a probable cause declaration which described a family fight between defendant and his brother. At the time of trial, Officer Moore did not know whether any charges had been filed in El Dorado County against defendant in connection with the fight which the officer believed occurred just days if not hours before the current charge. Officer Moore arrested defendant for possession of stolen property. When advised of his right to remain silent, defendant stated he understood and would only respond to the questions he wanted to answer. He explained he gave a false name because he did not know what the officer wanted and that he was afraid because his license had expired. He denied being related to the white car or license plates in any way.

Chandler stated that the next day, August 10, 2004, Reba and Bradley Tincher picked up the white car which remained parked at the curb in front of Chandler's building.

The prosecutor presented additional evidence related to the license plates found on and in the white car. Earlier on August 9, 2004, Grubel and her gardener, Steve Bell, found a man near Grubel's Ford Escort and confronted him about what he was doing. The man claimed the car belonged to him or his girlfriend. When Grubel and Bell explained that the car belonged to Grubel, the man seemed annoyed and left with his backpack. Later that evening, Grubel received a call from Davis Police and learned they had the plate to her car (4WQY719). She checked the front and back of her car and discovered plates which belonged to the white car (3DGZ155). Grubel had given no one permission to use her plates. On August 19, 2004, neither Grubel nor Bell positively identified defendant from a photo lineup as the man near Grubel's car. Bell picked defendant's and another person's photo and was 60 to 70 percent certain with respect to the latter and 40 percent certain with respect to defendant. Grubel was 75 percent certain it was another person in the lineup.

Ritchie received a call from Davis Police that they had the plate to her car (5BJK126). She checked her car and discovered a plate which belonged to Grubel's car (4WQY719). Ritchie had given no one permission to use her plates.

No useable fingerprints were found on the stolen license plates.

(Resp't's Lod. Doc. 1 (hereinafter Opinion).)

ANALYSIS

I. Standards of Review

Applicable to Habeas Corpus Claims A writ of habeas corpus is available under 28 U.S.C. § 2254 only on the basis of some transgression of federal law binding on the state courts. See Peltier v. Wright, 15 F.3d 860, 861 (9th Cir. 1993); Middleton v. Cupp, 768 F.2d 1083, 1085 (9th Cir. 1985) (citing Engle v. Isaac, 456 U.S. 107, 119 (1982)). A federal writ is not available for alleged error in the interpretation or application of state law. See Estelle v. McGuire, 502 U.S. 62, 67-68 (1991); Park v. California, 202 F.3d 1146, 1149 (9th Cir. 2000); Middleton, 768 F.2d at 1085. Habeas corpus cannot be utilized to try state issues de novo. Milton v. Wainwright, 407 U.S. 371, 377 (1972).

This action is governed by the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"). See Lindh v. Murphy, 521 U.S. 320, 336 (1997); Clark v. Murphy, 331 F.3d 1062, 1067 (9th Cir. 2003). Section 2254(d) sets forth the following standards for granting habeas corpus relief:

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.

See also Penry v. Johnson, 532 U.S. 782, 792-93 (2001); Williams v. Taylor, 529 U.S. 362 (2000); Lockhart v. Terhune, 250 F.3d 1223, 1229 (9th Cir. 2001). If the state court's decision does not meet the criteria set forth in § 2254(d), a reviewing court must conduct a de novo review of a habeas petitioner's claims. Delgadillo v. Woodford, 527 F.3d 919, 925 (9th Cir. 2008). See also Frantz v. Hazey, 513 F.3d 1002, 1013 (9th Cir. 2008) (en banc) ("[I]t is now clear both that we may not grant habeas relief simply because of § 2254(d)(1) error and that, if there is such error, we must decide the habeas petition by considering de novo the constitutional issues raised.").

The court looks to the last reasoned state court decision as the basis for the state court judgment. Robinson v. Ignacio, 360 F.3d 1044, 1055 (9th Cir. 2004). If the last reasoned state court decision adopts or substantially incorporates the reasoning from a previous state court decision, this court may consider both decisions to ascertain the reasoning of the last decision. Edwards v. Lamarque, 475 F.3d 1121, 1126 (9th Cir. 2007) (en banc). Where the state court reaches a decision on the merits but provides no reasoning to support its conclusion, a federal habeas court independently reviews the record to determine whether habeas corpus relief is available under § 2254(d). Himes v. Thompson, 336 F.3d 848, 853 (9th Cir. 2003); Pirtle v. Morgan, 313 F.3d 1160, 1167 (9th Cir. 2002). When it is clear that a state court has not reached the merits of a ...


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