Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Dye v. Clark

June 29, 2010

THOMAS P. DYE, PETITIONER,
v.
AN KEN CLARK, WARDEN, RESPONDENT.



The opinion of the court was delivered by: Barbara L. Major United States Magistrate Judge

ORDER DENYING PETITION FOR WRIT OF HABEAS CORPUS AND DENYING MOTION FOR EVIDENTIARY HEARING [Doc. No. 1, 13]

On November 4, 2009, Petitioner Thomas P. Dye, a state prisoner proceeding pro se and in forma pauperis, filed the instant Petition for Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254. Doc. Nos. 1, 1-1 ("Petition" and "Pet.'s Mem."). Pursuant to the provisions of 28 U.S.C. § 636(c) and Federal Rule of Civil Procedure 73, the parties consented to the jurisdiction of a United States Magistrate Judge. Petition at 11; Doc. No. 8. On February 19, 2010, Respondent filed an Answer to the Petition.*fn1 Doc. Nos. 11, 11-1 ("Answer" and "Resp.'s Mem."). On March 19, 2010, Petitioner filed a Reply to the Answer ("Reply"), a memorandum of points and authorities in support thereof ("Reply Mem."), and a Motion for an Evidentiary hearing. See Doc. Nos. 13, 14. For the reasons set forth below, the Court DENIES Petitioner's Petition for Writ of Habeas Corpus and Motion for an Evidentiary Hearing.

STATEMENT OF FACTS

The following facts are taken directly from the California Court of Appeal's opinion affirming Petitioner's conviction in The People v. Thomas P. Dye, Super. Ct. Nos. SCN172719, SCN147314.

1. Emily Phillips-Counts 8 (Residential Burglary), 9, 10 (grand theft of Personal Property and an Automobile) and 11 (Unlawful Taking and Driving a Vehicle)

In February 1999, Dye introduced himself to Phillips under a false name. Within a short period of time, Dye moved into her home and offered to help reduce her substantial credit card debt. Phillips gave Dye $4,700, believing his statement that he would give the money to an attorney friend to reduce her credit debt. Dye dropped Phillips off where she worked and borrowed her car to meet the attorney, but then failed to pick Phillips up as previously arranged. When Phillips returned home, she found that all of Dye's belongings were gone, as well as her car, social security card, passport, credit cards, driver's license, money and other items. Phillips immediately called the police and reported the theft.

The following month, Dye responded to an ad for a roommate in Denver, Colorado using the name Tommy Phillips. The female landlord contacted the police after Dye questioned her about her financial affairs. When the police arrived, they ran the license plate number of the vehicle that Dye had been seen driving and learned that it was registered to Phillips and had been reported stolen.

In August 1999, the People filed a felony complaint against Dye in San Diego for the crimes committed against Phillips (SCD147314). After the police arrested Dye in Denver, he bailed himself out of jail and then jumped bail.

. . . 3. Lilia Antillon-counts 1 (residential burglary), 2 (grant [sic] theft of personal property), 3 & 5 (forgery of checks), 4 & 6 (burglary), and 7 (failure to appear while on bail)

In November 2002, while out on bail on the Phillips matter, Dye began dating Antillon in San Diego and, at some point, she moved enough clothing into Dye's room at the Island Inn to enable her to stay there for a couple of days at a time. As the relationship progressed, Dye started asking her lots of questions regarding her finances. In December 2002 and January 2003, Dye presented checks written from Antillon's account to the Island Inn for rent; the checks were written for more than the amount due and he received a total of $300 cash back. One day, Dye disappeared after stealing Antillon's driver's license and credit card. Although Antillon initially believed that Dye had also stolen her truck because he had the keys, she later found the truck but discovered that an expensive gold chain inside it was missing. After Dye's disappearance, Antillon discovered the earlier theft and forgery of her checks.

On October 30, 2003, the People filed an information against Dye in San Diego for his crimes against Antillon (SCD172719). In August 2003, Chicago police arrested Dye for another offense and sent him back to San Diego for prosecution.

Lodgment 7 at 2-3, 5-6.

PROCEDURAL BACKGROUND

In August 1999, the People of the State of California filed a complaint in San Diego charging Petitioner with the crimes relating to Phillips described above. Lodgment 1 at 650-54. In September 2001, while Petitioner was in custody in Illinois and South Dakota on separate charges, Petitioner filed a motion in San Diego seeking dismissal of the pending San Diego charges on the basis that his Sixth Amendment right to a speedy trial had been violated. Id. at 858-64, 866-72, 875-77, 581-92. In December 2001, Petitioner arrived in San Diego, was arraigned on the Phillips complaint, and renewed his motion to dismiss. Id. at 865, 602-30. In January 2002, a superior court judge presided over a lengthy evidentiary hearing addressing the speedy trial issues raised in Petitioner's motion to dismiss. Lodgment 3, Volumes 1-4. On February 14, 2002, the court issued a written order denying Petitioner's motion to dismiss the complaint. Lodgment 1 at 677-86.

In November 2002, Petitioner posted a $100,000 bond and was released from custody. Id. at 900-901. On January 22, 2003, Petitioner failed to appear for a court hearing and an arrest warrant was issued.

at 907-8. In August 2003, Petitioner was arrested in Illinois for a new crime and returned to San Diego in September 2003. Lodgment 7 at 6. On October 30, 2003, the People filed a new information charging Petitioner with crimes committed against Antillon while he was out of custody on bail during the criminal proceedings on the Phillips charges.

On July 14, 2004, the prosecution filed an amended information joining the Phillips and Antillon cases after the trial court granted its consolidation motion. Lodgment 2 at 1-9; see also Lodgment 3, Volume 4 at 163-64. In addition to the above-mentioned eleven counts, the amended information alleged that Petitioner committed counts one through seven while out on bail, and that he had sixteen probation denial priors, five prison priors, three serious felony priors and three strike priors. Lodgment 2 at 1-9. Petitioner waived his right to a jury trial and a bench trial commenced on July 20, 2004. Lodgment 1, Volume 2 at 554-55; Lodgment 3, Volume 4 at 197-201; Lodgment 3, Volume 5 at 209.

On July 29, 2004, the trial court found Petitioner not guilty of the residential burglary charge as to Antillon and its associated bail violation allegation (count one), but guilty of all other charges (counts two-eleven) and all associated allegations that he had committed the crimes while out on bail (counts two-seven). Lodgment 3, Volume 6 at 641-44; Lodgment 1, Volume 2 at 564. The trial court also found true the allegations that Petitioner had five prison priors, two serious felony priors, and two strike priors. Lodgment 3, Volume 6 at 645-48; Lodgment 1, Volume 2 at 564. On October 12, 2004, the court dismissed two strikes under California Penal Code section 1385 and then sentenced Petitioner to a total of 23 years in prison. Lodgment 3, Volume 6 at 672-73, 676-80; Lodgment 1, Volume 2 567-68.

The People appealed the court's finding that Petitioner's Illinois attempted robbery conviction did not qualify as a serious felony prior and a strike prior. Lodgment 6. The People further contended that the trial court abused its discretion when it struck two of Petitioner's prior strikes. Id. Petitioner also appealed the judgment, arguing that the trial court (1) violated his rights to a speedy trial and due process with respect to the Phillips convictions; (2) abused its discretion in consolidating for trial the crimes against both victims; (3) erred by admitting uncharged acts evidence; and (4) committed judicial misconduct. Lodgment 5. Petitioner also asserted that (1) the burglary convictions as to Antillon should be reversed because he had an absolute right to enter the premises; (2) the judgment should be reversed because he received ineffective assistance of counsel; and (3) the cumulative effect of all errors warranted reversal. Id.

The appellate court affirmed Petitioner's conviction on April 14, 2006, with the exception of a partial reversal and remand for resentencing as a result of the People's appeal. Lodgment 7. Petitioner filed a petition for review with the California Supreme Court on May 17, 2006, presenting only the claim directed at his right to a speedy trial. Lodgment 8. His petition was summarily denied on July 12, 2006. Lodgment 9.

On November 29, 2006, on remand for resentencing, the San Diego Superior Court denied Petitioner's motion to strike the three prior strike allegations. Lodgment 2 at 120-21; Lodgment 4 at 39-42. The court sentenced Petitioner to a term of 150 years to life in prison under the three strikes law, consisting of consecutive terms of twenty-five years to life on counts two, three, five, seven, eight and ten.

The court also imposed an additional seventeen years, consisting of three consecutive serious felony prior enhancements (Cal. Penal Code § 667 (a)), plus two years consecutive for an "on bail" enhancement (Cal. Penal Code § 12022.1(b)). Id. All other counts and enhancements were ordered stayed or stricken, pursuant to California Penal Code sections 654 and 1385, respectively. Id.

On January 2, 2008, Petitioner appealed his sentence, arguing that the court erred by reconsidering his entire sentence, finding true a prior strike conviction that previously had been stricken, and failing to strike his prior strike convictions.*fn2 Lodgment 10. Petitioner also argued that his sentence constituted cruel and unusual punishment. Id. On August 14, 2008, the appellate court affirmed the judgment. Lodgment 12. Petitioner filed a petition for review with the California Supreme Court on September 15, 2008 (Lodgment 13), which was summarily denied on October 22, 2008 (Lodgment 14).

Petitioner filed a petition for writ of habeas corpus in the California Supreme Court on April 29, 2009, arguing that the trial court erred by allowing evidence of uncharged acts and trial and appellate counsel provided ineffective assistance. Lodgment 15. On September 23, 2009, the California Supreme Court summarily denied the petition. Lodgment 16. On November 4, 2009, Petitioner filed the instant petition for writ of habeas corpus. Petition.

Legal Standard

Title 28 of the United States Code, section 2254(a), sets forth the following scope of review for federal habeas corpus claims:

The Supreme Court, a Justice thereof, a circuit judge, or a district court shall entertain an application for a writ of habeas corpus in behalf of a person in custody pursuant to the judgment of a State court only on the ground that he is in custody in violation of the Constitution or laws or treaties of the United States.

28 U.S.C. § 2254(a).

The Petition was filed after enactment of the Anti-terrorism and Effective Death Penalty Act of 1996 ("AEDPA"), Pub. L. No. 104-132, 110 Stat. 1214. Under 28 U.S.C. § 2254(d), as amended by AEDPA:

(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. § 2254(d). Summary denials constitute adjudications on the merits. See Luna v. Cambra, 306 F.3d 954, 960 (9th Cir. 2002). Where there is no reasoned decision from the state's highest court, the Court "looks through" to the underlying appellate court decision. Ylst v. Nunnemaker, 501 U.S. 797, 801-06 (1991).

A state court's decision is "contrary to" clearly established federal law if the state court: (1) "arrives at a conclusion opposite to that reached" by the Supreme Court on a question of law; or (2) "confronts facts that are materially indistinguishable from a relevant Supreme Court precedent and arrives at a result opposite to [the Supreme Court's]." Williams v. Taylor, 529 U.S. 362, 405 (2000).

A state court's decision is an "unreasonable application" of clearly established federal law where 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." Lockyer v. Andrade, 538 U.S. 63, 75-76 (2003). "[A] federal habeas court may not issue a writ simply because the court concludes in its independent judgment that the relevant state-court decision applied clearly established federal law erroneously or incorrectly . . . . Rather, that application must be objectively unreasonable." Id. (emphasis added) (internal quotation marks and citations omitted). Clearly established federal law "refers to the holdings, as opposed to the dicta, of [the United States Supreme] Court's decisions." Williams, 529 U.S. at 412.

Finally, habeas relief also is available if the state court's adjudication of a claim "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)(2); Wood v. Allen, __ U.S. __, 2010 WL 173369, *2 (U.S. Jan. 20, 2010). A state court's decision will not be overturned on factual grounds unless this Court finds that the state court's factual determinations were objectively unreasonable in light of the evidence presented in state court. See Miller-El v. Cockrell, 537 U.S. 322, 340 (2003); see also Rice v. Collins, 546 U.S. 333, 341-42 (2006) (the fact that "[r]easonable minds reviewing the record might disagree" does not render a decision objectively unreasonable). This Court will presume that the state court's factual findings are correct, and Petitioner may overcome that presumption only by clear and convincing evidence. 28 U.S.C. § 2254(e)(1).

Discussion

Petitioner raises three grounds for relief. Petition. He argues that this Court should reverse his conviction because (1) his right to a speedy trial was violated, (2) his trial and appellate counsel provided ineffective assistance of counsel, and (3) his due process rights were violated by the admission of "prior bad act evidence." Id. Respondent argues that this Court should deny the instant petition because Petitioner has failed to demonstrate that the decision by the California state courts rejecting [Petitioner's] claims on the merits was contrary to, or involved an unreasonable application of, clearly established federal law, or was based on an unreasonable determination of the facts as presented in the state court proceeding.

Resp.'s Mem. at 1.

A. Speedy Trial Claim

Petitioner complains that his constitutional right to a speedy trial was violated by the California state courts. Pet.'s Mem. at 4. He explains that although his right to a speedy trial with respect to the crimes he committed against Phillips (counts eight-eleven) attached on November 24, 1999, he was not brought to California to face the charges until December 19, 2001, over two years later. Id. at 6. He argues that this substantial delay prejudiced him in that his defense was "impaired" and he "remained in ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.