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.

Ballard v. Small

July 6, 2010

ROBERTO ANTONIO BALLARD, PETITIONER,
v.
L. SMALL, WARDEN, ET AL., RESPONDENTS.



The opinion of the court was delivered by: Irma E. Gonzalez, Chief Judge United States District Court

ORDER: (1) ADOPTING IN FULL REPORT AND RECOMMENDATION; (2) DENYING AND DISMISSING PETITION FOR WRIT OF HABEAS CORPUS; (3) DENYING REQUEST FOR EVIDENTIARY HEARING; and (4) GRANTING IN PART CERTIFICATE OF APPEALABILITY

On May 4, 2009, Petitioner Roberto Antonio Ballard ("Petitioner"), a state prisoner proceeding pro se, filed a Petition for Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254 ("Petition") claiming violations of his federal constitutional rights. Petitioner is challenging his conviction in the Superior Court for the County of San Diego, case number SCE247764, for involuntary manslaughter and assault on a child with force likely to produce great bodily injury resulting in death. (Lodgment No.1, vol. 2 at 0284-85.)

Petitioner alleges the following constitutional violations in his Petition: 1) the trial court failed to properly instruct the jury on all elements of the crime; 2) he was denied his right to a speedy trial; 3) he was shackled in the presence of the jury without a prior finding by the trial court of manifest necessity; and 4) the trial court refused to acknowledge exculpatory evidence exonerating him. Petitioner also seeks an evidentiary hearing regarding the issue of exculpatory evidence. This matter was referred to Magistrate Judge Bencivengo, pursuant to 28 U.S.C. § 636(b)(1)(B). Respondent filed an answer on September 10, 2009, asserting all claims are procedurally barred, and, notwithstanding, fail on the merits. [Doc. No. 11]. Petitioner filed his Traverse on November 13, 2009.

On January 5, 2010, the Magistrate Judge issued a Report and Recommendation ("R&R") recommending the Court deny both the Petition and request for evidentiary hearing. [Doc. No. 18]. Petitioner filed objections to the R&R on February 1, 2010. [Doc. No. 19]. Having undertaken a de novo review of the record and having considered Petitioner's claims, the R&R, and Petitioner's objections, the Court hereby: (1) ADOPTS IN FULL the R&R; (2) DENIES and DISMISSES the petition; (3) DENIES the request for an evidentiary hearing; and (4) GRANTS a certificate of appealability as to claim three.

BACKGROUND

I. Factual Background

The Court adopts the factual background as stated by the Magistrate Judge, (see R&R, at 2-3), which in turn takes the facts from the Court of Appeal's opinion in People v. Ballard, No. D049103, 2007 WL 1600386 (Cal. Ct. App. June 5, 2007).Pursuant to 28 U.S.C. § 2254(e)(1), the Court, as did the Magistrate Judge, presumes the factual determinations to be correct.

II. Procedural Background

The San Diego County District Attorney's officecharged Petitioner on February 16, 2005, with one count of assault on a child by means of force likely to produce great bodily injury resulting in death, a violation of California Penal Code ("Penal Code") § 273ab, and one count of murder, a violation of Penal Code § 187(a). (Lodgment No. 1, vol. 1 at 0001-02.) The Information also alleged Petitioner served a separate prison term for a prior conviction within the meaning of Penal Code §§ 667.5(b) and 668 (Prison Prior). (Id.)

On April 21, 2006, after a bifurcated trial, a jury found Petitioner guilty of assault on a child with force likely to produce great bodily injury resulting in death under Penal Code § 273ab, and involuntary manslaughter, a lesser included offense of murder, under Penal Code § 187(a). (Lodgment No. 2, vol. 10 at 1426-27.) At a subsequent hearing, Petitioner admitted he had served a prior prison term within the meaning of Penal Code §§ 667.5 and 668. (Lodgment No. 2, vol. 11 at 1501-05.) On July 18, 2006, Petitioner appeared at the sentencing hearing and was sentenced to 26 years to life. (Id. at 1513-51.) On December 11, 2006, Petitioner appealed to the California Court of Appeal, which affirmed the conviction and sentence in a June 5, 2007, unpublished opinion. (Lodgments No. 3, 4, 5, 6.) On June 22, 2007, Petitioner filed a Petition for Review in the California Supreme Court, which that court denied without comment or citation on August 8, 2007. (Lodgments No. 7, 8.)

Petitioner then filed a petition for writ of habeas corpus in the San Diego Superior Court on November 29, 2007, which was denied in an unpublished opinion on December 6, 2007. (Lodgments No. 9, 10.) Petitioner thereafter filed a petition writ of habeas corpus in the California Court of Appeal on February 8, 2008. (Lodgment No. 11.) This petition was also denied in an unpublished opinion on May 9, 2008. (Lodgment No. 12.) Ultimately, on June 2, 2008, Petitioner filed a petition for writ of habeas corpus in the California Supreme Court. (Lodgment No. 13.) On December 10, 2008, the California Supreme Court denied the petition with citation to In re Dixon, 41 Cal. 2d 756 (1953). No opinion or other explanation followed the citation. (Lodgment No. 14.)

The instant Petition was timely filed. Respondent filed an answer and Petitioner submitted a Traverse. [Doc. Nos. 11, 17] The Magistrate Judge issued the R&R, recommending the Court deny and dismiss the Petition on the merits, and deny the request for an evidentiary hearing. [Doc. No. 18]. Petitioner subsequently filed his objections to the R&R. [Doc. No. 19]. Petitioner only raises specific objections as to the shackling claim (claim three), but otherwise only makes a general objection to the R&R's rejection of his other claims. [See Id.]

STANDARD OF REVIEW

A federal court may grant a habeas corpus petition pursuant to 28 U.S.C. § 2254 only if the state court's decision was either "contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States," or "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); Williams v. Taylor, 529 U.S. 403, 412-13 (2000). To grant a habeas petition upon a State court decision that was "contrary to" clearly established federal law, the state court must either have made a finding on a question of law which was "opposite to that reached" by the Supreme Court, or judged a case differently than the Supreme Court has "on a set of materially indistinguishable facts." Id. at 413. In order to grant a habeas petition upon a finding that the state court's adjudication of a claim involved "an unreasonable application" of clearly established federal law, the state court must have correctly identified the "governing legal principle" from Supreme Court precedent, but unreasonably applied that principle to the facts of the prisoner's case. Id.

When making the "unreasonable application" inquiry, a federal habeas court asks "whether the state court's application of clearly established federal law was objectively unreasonable." Id. at 409. The state court's decision must be more than "incorrect or erroneous." Lockyer v. Andrade, 538 U.S. 63, 75-76 (2003). To warrant habeas relief, the state court decision must be in violation of a Supreme Court decision either directly addressing the issue before the state court or clearly establishing a "controlling legal standard" applicable to the petitioner's claims. See Wright v. Van Patten, 552 U.S. 120, 125 (2008); Panetti v. Quarterman, 551 U.S. 930, 953 (2007).

Habeas relief may also be granted where the state court's decision 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). "Factual determinations by state courts are presumed correct absent clear and convincing evidence to the contrary, § 2254(e)(1), and a decision adjudicated on the merits in a state court and based on a factual determination will not be overturned on factual grounds unless objectively unreasonable in light of the evidence presented in the state-court proceeding, § 2254(d)(2)." Miller-El v. Cockrell, 537 U.S. 322, 340 (2003).

ANALYSIS

Since Petitioner objects to the recommendations of the Magistrate Judge on all four claims, this Court must review de novo those portions of the R&R. 28 U.S.C. § 636(b)(1)(C); Holder v. Holder, 392 F.3d 1009, 1022 (9th Cir. 2004). Under 28 U.S.C. § 636 (b)(1)(C), the Court may "accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate judge." Where the state's highest court has not provided a reasoned decision for the claims at issue, the Court "looks through" to the "last reasoned" state court decision. Ylst v. Nunnemaker, 501 U.S. 797, 804-06 (1991). The last reasoned state opinion is the "last explained state-court judgment" on the Petitioner's claim which is "informative with respect to the question before us." Id. at 805. When the dispositive state court's judgment "does not supply reasoning for its decision,"federal habeascourts must conduct "an independent review of the record" to decidewhether the ...


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.