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Ross v. Carey

July 26, 2010




Petitioner, Larry D. Ross, is a state prisoner proceeding pro se witha petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254. Petitioner is currently serving an aggregate sentence of ten years following his convictions by jury trial in the Sacramento County Superior Court, Case No. 03F04741, for infliction of corporal injury with personal infliction of great bodily injury, CAL. PENAL §§ 273.5(a) and 12022.7(e), and battery with serious bodily injury, CAL. PENAL § 243(d). Petitioner also waived his right to a jury trial and admitted a prior felony conviction and period of incarceration, pursuant to CAL. PENAL § 667.5(b). With this petition, Petitioner challenges the constitutionality of those convictions. Specifically, Petitioner claims that (1) his constitutional rights to a jury trial and due process were violated by the trial court's failure to adequately investigate and discharge Juror No. 9, who indicated she could not concentrate due to back pain and had "blacked out" during testimony; (2) he did not knowingly, intelligently, and voluntarily waive his constitutional rights before admitting a prior felony conviction; and (3) California Evidence Code section 1109, which permits the admission of evidence of prior acts of domestic violence in a criminal prosecution for domestic violence, is unconstitutional. Upon careful consideration of the record and applicable law, it is recommended that this petition for writ of habeas corpus relief be denied.


The basic facts of Petitioner's crimes were summarized in the unpublished opinion*fn1 of the California Court of Appeals, Third Appellate District, as follows:

On June 3, 2003, Latrice B. was six months pregnant. [Petitioner] was her boyfriend of more than two years. At that time she, [Petitioner], and her child, Isaiah, were living together with Sherri T. and Willie T. and their children.

Sherri T. testified that when she woke up and came out of her bedroom on the morning of June 3, 2003, she heard her cousin Latrice and [Petitioner] having a disagreement out on the front porch about doctor's appointments, transportation, and taking care of the kids. Sherri could hear her husband trying to settle them down. After Latrice came inside the house, Sherri heard [Petitioner] say, "Tell your cousin not to go in the room and fuck with my clothes." He said Latrice was going to get hurt if she did not leave his stuff alone. Sherri saw Latrice go into her bedroom and put [Petitioner's] clothes into a garbage bag. Latrice came back into the hallway. [Petitioner] met her there. Before she could throw the bag of clothes at [Petitioner], [Petitioner] punched her in the face. All told, he punched Latrice twice in the face and twice in the bottom of her stomach. Latice did not hit [Petitioner], nor did she hit her face against a wall. [Petitioner] told Latrice to get cleaned up and he would take her to the hospital.

Dr. Kenneth Collins testified he treated Latrice in the emergency room of Kaiser Hospital on June 3, 2003. Latrice had a laceration on the center of her face that was four centimeters long and one centimeter deep, going through the subcutaneous tissue. The laceration was split wide open about one and a half centimeters. The laceration required approximately 14 sutures. Latrice said she had fallen and hit her head.

Latrice's mother testified that she received a call from her daughter on June 3, 2003, telling her that [Petitioner] had hit her in the face. [Petitioner] got on the phone and told Latrice's mother that he and Latrice got into a fight, it got out of hand, and he hit Latrice. He apologized.

Latrice testified at [Petitioner's] trial that she was injured when she hit her face on a wall. Latrice denied at trial that [Petitioner] ever punched her in the face or the stomach. Latrice also testified that she told her mother that she hit her face on the wall. She denied hearing [Petitioner] apologize to her mother for losing control and hitting her. She said she told the doctor at the hospital that she fell because she and [Petitioner] had agreed that was what she would say. She also told the police that she fell. She admitted that story was made up. On June 13, 2003, while she was in the hospital for the birth of her son, Latrice applied for a restraining order against [Petitioner]. The application included a section that state, under penalty of perjury, "[t]here has been physical abuse in the past, but [Latrice] has never reported it and is fearful and does not want to discuss any other incident." Latrice claimed she signed the papers without reading them under threat of having Child Protective Services called. Patricia L. testified that she lived with [Petitioner] for 17 or 18 years and had five children with him. Patricia L. Could not remember [Petitioner] committing any act of domestic violence against her on February 11, 1995, despite photographs taken at the time. Police Officer Eklund testified that he took a report from Patricia L. in 1995 in which she said [Petitioner] had struck her on the back four times with an electric cord. Photographs taken by Officer Eklund of Patricia L.'s back showing [sic] marks consistent with being hit with a cord were admitted into evidence. (Lodged Doc. 4 at 2-4).


Petitioner timely appealed his convictions to the California Court of Appeal, Third Appellate District. The appellate court affirmed his convictions in a reasoned opinion on December 7, 2004. Petitioner then sought review of his convictions in the California Supreme Court. That petition was denied without comment on February 16, 2005. Petitioner filed this federal petition for writ of habeas corpus on August 24, 2005. Respondent filed an answer on March 13, 2006. Petitioner did not file a traverse.


This case is governed by the provisions of the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"), which applies to all petitions for writ of habeas corpus filed after its enactment on April 24, 1996. Lindh v. Murphy, 521 U.S. 320, 326 (1997); Jeffries v. Wood, 114 F.3d 1484, 1499 (9th Cir. 1997). Under AEDPA, an application for a writ of habeas corpus by a person in custody under a judgment of a state court may be granted only for violations of the Constitution or laws of the United States. 28 U.S.C. § 2254(a); Williams v. Taylor, 529 U.S. 362, 375 n. 7 (2000). Federal habeas corpus relief is not available for any claim decided on the merits in state court proceedings unless the state court's 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). Although "AEDPA does not require a federal habeas court to adopt any one methodology," Lockyer v. Andrade, 538 U.S. 63, 71 (2003), there are certain principles which guide its application.

First, AEDPA establishes a "highly deferential standard for evaluating state-court rulings." Woodford v. Visciotti, 537 U.S. 19, 24 (2002). Accordingly, when determining whether the law applied to a particular claim by a state court was contrary to or an unreasonable application of "clearly established federal law," a federal court must review the last reasoned state court decision. Robinson v. Ignacio, 360 F.3d 1044, 1055 (9th Cir. 2004); Avila v. Galaza, 297 F.3d 911, 918 (9th Cir. 2002). Provided that the state court adjudicated petitioner's claims on the merits, its decision is entitled to deference, no matter how brief. Lockyer, 538 U.S. at 76; Downs v. Hoyt, 232 F.3d 1031, 1035 (9th Cir. 2000). Conversely, when it is clear that a state court has not reached the merits of a petitioner's claim, or has denied the claim on procedural grounds, AEDPA's deferential standard does not apply and a federal court must review the claim de novo. Nulph v. Cook, 333 F.3d 1052, 1056 (9th Cir. 2003); Pirtle v. Morgan, 313 F.3d 1160, 1167 (9th Cir. 2002).

Second, "AEDPA's, 'clearly established Federal law' requirement limits the area of law on which a habeas court may rely to those constitutional principles enunciated in U.S. Supreme Court decisions." Robinson, 360 F.3d at 155-56 (citing Williams, 529 U.S. at 381). In other words, "clearly established Federal law" will be " the governing legal principle or principles set forth by [the U.S. Supreme] Court at the time a state court renders its decision." Lockyer, 538 U.S. at 64. It is appropriate, however, to examine lower court decisions when determining what law has been "clearly established" by the Supreme Court and the reasonableness of a particular application of that law. See Duhaime v. Ducharme, 200 F.3d 597, 598 (9th Cir. 2000).

Third, the "contrary to" and "unreasonable application" clauses of § 2254(d)(1) have "independent meanings." Bell v. Cone, 535 U.S. 685, 694 (2002). Under the "contrary to" clause, a federal court may grant a writ of habeas corpus only if the state court arrives at a conclusion opposite to that reached by the Supreme Court on a question of law, or if the state court decides the case differently than the Supreme Court has on a set of materially indistinguishable facts. Williams, 529 U.S. at 405. It is not necessary for the state court to cite or even to be aware of the controlling federal authorities "so long as neither the reasoning nor the result of the state-court decision contradicts them." Early v. Packer, 537 U.S. 3, 8 (2002). Moreover, a state court opinion need not contain "a formulary statement" of federal law, but the fair import of its conclusion must be consistent with federal law. Id.

Under the "unreasonable application" clause, the court may grant relief "if the state court correctly identifies the governing legal principle...but unreasonably applies it to the facts of the particular case." Bell, 535 U.S. at 694. As the Supreme Court has emphasized, a court may not issue the writ "simply because that court concludes in its independent judgment that the relevant state-court decision applied clearly established federal law erroneously or incorrectly." Williams, 529 U.S. at 410. Thus, the focus is on "whether the state court's application of clearly established federal law is objectively unreasonable." Bell, 535 U.S. at 694 (emphasis added).

Finally, the petitioner bears the burden of demonstrating that the state court's decision was either contrary to or an unreasonable application of federal law. Woodford, 537 U.S. at 24; Baylor v. Estelle, 94 F.3d 1321, 1325 (9th Cir. 1996).


Petitioner claims that his constitutional rights to due process and a jury trial under the Fifth, Sixth and Fourteenth Amendments were violated by the trial court's failure to adequately investigate and discharge Juror No. 9, who indicated during the trial that she could not concentrate due to back pain and had "blacked out" during trial testimony. Petitioner contends that the trial court had an affirmative duty to conduct a thorough inquiry regarding the duration and severity of Juror No. 9's back problems in order to determine whether she would be able to competently discharge her duties as a juror. According to Petitioner, he suffered prejudice because the trial court's failure to conduct such an inquiry resulted in a verdict rendered by an incompetent juror. The California Court of Appeal, Third Appellate District, summarized the background of Petitioner's claim as follows:

The record reflects that before the start of the second day of testimony, Juror No. 9 presented the court with a note from her chiropractor stating that she suffers from severe spine subluxations in the cervical lumbar area of the spine. The note further stated that sitting for an extended period of time would be ill advised. It would severely exacerbate this condition. The chiropractor stated the juror was unable to participate as a juror. Counsel and the court agreed to voir dire the juror to see if her physical condition could be accommodated with more frequent breaks and by moving her to a position where she could stand or if she should be replaced with an alternate juror.

When questioned by the trial court as to possible accommodations, the following colloquy took place:

"THE JUROR: My problem yesterday was, I couldn't even get out of the -- this very comfortably; and, besides, when the witness was there when I was having pain, I lost concentration and I couldn't really understand or -- I was blacked out yesterday, especially in the afternoon, so -- and that's ...

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