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Brown v. Clark

August 10, 2010

TYRELL TRAVIS BROWN, PETITIONER,
v.
KEN CLARK, RESPONDENT.



The opinion of the court was delivered by: J. Clifford Wallace United States Circuit Judge

ORDER

Petitioner Brown, a state prisoner proceeding pro se, filed a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254, challenging his convictions on two counts of making a criminal threat in violation of California Penal Code section 422. His application to proceed in forma pauperis has been granted. I have reviewed the petition, the respondent's answer, the traverse, and all supporting documents. I hold that Brown is not entitled to the relief requested and order the petition denied.

I.

The following is a summary of the facts, taken from the unpublished opinion of the California Court of Appeal, Third District:

In September 2003, the victims, Mary Elva Kouklis and Genevieve Manzo, lived and worked together. On September 24, 2003, at approximately 8:30 p.m., they followed one another home from work in separate cars. Kouklis, who was ahead of Manzo, got out of her car to unlock a gate that blocked their driveway. In order to reach their home, both victims had to drive around a white Chevrolet Caprice "almost blocking the driveway." Kouklis thought it was odd the car was parked so close to their driveway since there were no other cars parked on the street and she took down the car's license plate number.

As Kouklis reached the end of the driveway, she saw a man, who was later identified as defendant, quickly walking toward her with a gun in his hand. Not wanting to die in her "little Ford Escort," she got out and faced him. Defendant raised his gun and began yelling at her for driving too close to his car. She repeatedly apologized, believing she was "pleading for [her] life." Defendant told her, "I could kill you, bitch. You know me. You know my business. And I own these streets."

As Manzo approached defendant and Kouklis, she heard yelling but did not know defendant had a gun. Manzo told defendant: "[T]his is private property. You need to leave." (RT 107) Defendant responded by pointing his gun at her head and stating: "I'm going to kill you, bitch. I'm gonna kill you. You know, I own these streets. You know who I am and what I do." A few moments later, defendant began backing down the driveway and explained: "[T]he only reason I'm not finishing you off now is because of them," pointing to the victims' neighbors.

A few minutes later, Manzo called 911. A police officer came and took a report. A couple of weeks later, the victims attended a neighborhood "Cops and Coffee" meeting and told Sacramento Police Officer Kyle Jasperson about their encounter with defendant.

Officer Jasperson reviewed the police report, ran the license plate number obtained by Kouklis and discovered the car was registered to defendant. While patrolling the victim's neighborhood, Jasperson, who had previous dealings with defendant, saw defendant and asked to speak with him. Defendant agreed and initially "denied pulling the gun on anyone." He later admitted threatening the victims with a toy gun after they nearly hit his car while pulling into their driveway. He explained he was angry because he had recently purchased the car. He admitted yelling at the victims but said he could not remember exactly what he had said because he was "probably either drunk or high on drugs replica firearms, one black and one chrome, which defendant referred to as "toy guns."

The victims later identified defendant as the person who threatened them and one of the toy guns as resembling the chrome gun used by defendant to threaten them. [Lodged Doc. 3 at 2-4.] People v. Brown, 2005 WL 1635233 at *1-2 (Cal. App. Ct.) (unpublished).

A jury convicted Brown of two counts of making a criminal threat in violation of California Penal Code section 422. [Lodged Doc. 3 at 1.] The trial court made findings that Brown had made the threats while released on bail or his own recognizance, for purposes of a two-year sentencing enhancement under California Penal Code section 12022.1; that he had previously been convicted of a serious felony for purposes of doubling his sentence under California's three strikes law, California Penal Code section 1170.12; and that he had served a prior prison term for purposes of a one-year sentencing enhancement under California Penal Code section 667.5(b). [Lodged Doc. 3 at 1.] Brown was then sentenced to five years and eight months in state prison -- two consecutive eight-month terms for the two threat convictions, doubled due to his prior strike, plus two years' enhancement for committing the crime while released on bail and one year for the prior term in prison. [Lodged Doc. 3 at 2.] The court ordered that the sentence run consecutive to a nine-year sentence previously imposed in a different case and formally reimposed, for a total term of 14 years and eight months. [Id.]

Brown appealed to the California Court of Appeal, Third Appellate Division, which affirmed his conviction in an unpublished opinion on July 13, 2005, but reduced his sentence by one year. [Lodged Doc. 3.] On September 28, 2005, Brown's petition for review by the California Supreme Court was denied. [Lodged Doc. 5.] Thereafter, he filed a state habeas petition in Sacramento County Superior Court, which was denied in a written opinion. [Lodged Doc. 8.] His habeas petition was also denied by the California Court of Appeal, Third Appellate District, with only the explanation: "See In re Hillery (1962) 202 Cal. App. 2d 293." [Lodged Doc. 7.] The California Supreme Court denied his habeas petition without comment. [Lodged Doc. 8.]

Brown filed the present federal petition on March 5, 2007. Respondent's answer was filed on July 16, 2007, and Brown's traverse was filed on July 30, 2007. On December 9, 2008, the case was reassigned to me.

This petition is governed by 28 U.S.C. § 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, Brown 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 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. 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 a state court finding of fact and presumes it 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, 1399 (9th Cir. 1989). Federal courts are bound by a state's ...


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