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Wilson v. Ely

October 7, 2010


The opinion of the court was delivered by: Timothy J Bommer United States Magistrate Judge



Petitioner is proceeding with a counseled application for writ of habeas corpus pursuant to 28 U.S.C. § 2254. Following a 2003 jury trial, Petitioner was convicted of resisting, obstructing or delaying a peace officer in violation of California Penal Code § 148(a)(1) and obstructing a thoroughfare in violation of California Penal Code § 647c. The court suspended imposing sentence and placed Petitioner on summary probation for three years. Petitioner was also ordered to pay a $850.00 fine and perform 100 hours of community service.

Petitioner raises several claims in his federal habeas petition; specifically: (1) the noise ordinance that Police Officer Carella ("Carella") enforced is overly broad and unconstitutional thereby causing Carella to not be in the performance of his duties when he detained Petitioner ("Claim I"); (2) Petitioner's conviction under § 148(a)(1) was an unconstitutional restraint on his First Amendment rights because Petitioner was only speaking out against the labor conditions and grievances he had with the school board ("Claim II"); (3) Petitioner's convictions violated his due process rights because (a) Carella was not in the performance of his duties when he arrested Petitioner due to the unconstitutionality of the local noise ordinance so that there was no competent evidence to support his convictions; (b) Carella lacked probable cause to arrest Petitioner; and (c) there was no evidence of malice to support the § 647c conviction (collectively "Claim III"); (4) the trial court violated Petitioner's Sixth Amendment right to present a defense when it (a) refused to instruct the jury that Carella was not in the performance of his duties and (b) prevented the jury from considering whether Petitioner acted with malice to support the § 647c conviction (collectively "Claim IV"); (5) the trial court violated Petitioner's due process rights and right to present a defense when it refused to instruct the jury on the entire language of the noise ordinance that Carella was enforcing ("Claim V"); (6) the trial court violated Petitioner's right to confront a witness by precluding attempts to expose the witness' bias ("Claim VI"); and (7) the trial court violated Petitioner's right to impeach Carella with evidence that he had fabricated a police report against another teacher ("Claim VII"). For the foregoing reasons, it is recommended that the habeas petition be denied.*fn1


This case arises out of a series of events that took place during the morning hours of June 14, 2001 at the Academy High School (hereinafter the "School") in Fairfield, California. Carella was dispatched to the School regarding a protesting teacher blocking the School's entry and exit.

(See Reporter's Tr. at p. 17.)*fn2

Ms. Joanne Acosta testified at trial that she was a counselor at the School. She stated that there was a teacher's union strike at the school. Petitioner was picketing along with other teachers and laid down in front of Ms. Acosta's car when she turned into the driveway. (See id. at p. 80.) Petitioner laid in front of her car for a few minutes which caused traffic to back up and be blocked along the road. (See id. at p. 83.) Ms. Acosta testified that Petitioner eventually moved over which allowed her to pull into the parking lot. (Id.) This incident was confirmed by other witnesses' at trial including the School principal Gwendolyn Lawton.

Upon arriving at the School, Carella went to speak to Ms. Lawton. He observed the Petitioner speaking "strike jargon" into a megaphone. (See id. at p. 18.) After speaking briefly with Ms. Lawton, Carella approached the Petitioner. At trial, Carella testified that he was going to issue a warning about blocking the road after what Ms. Lawton had reported to him as well as warn him about using the megaphone. (See id. at p. 19.) Carella stated that the use of the megaphone violated city ordinance § 12.9(c) since Petitioner did not have a permit to use the sound amplification equipment. (See id. at p. 20.) Petitioner continued to use the megaphone after Carella spoke to him about no longer using the megaphone. After Petitioner continued its use, Carella attempted to grab the megaphone from Petitioner.*fn3 (See id. at p. 23.) Petitioner fell to the ground. Carella then snatched the megaphone and put it in his police cruiser. (See id. at 24.) Upon returning to Petitioner, Petitioner remained on the ground blocking the sidewalk and driveway. (See id. at p. 29.) Eventually, several officers were required to pick up Petitioner to move him into the police cruiser. (See id. at p. 32-33.) It was estimated that from the time Carella arrived at the scene to the time that they placed Petitioner in the police cruiser was approximately thirty minutes. (See id. at p. 40.)

Petitioner was arrested for blocking a thoroughfare in violation of California Penal Code § 647c.*fn4 Carella testified that "he was blocking the sidewalk right in front of [Carella]" and "was lying on the eastern portion of that dip blocking the vehicles from making the left-hand turn from East Tabor into the entrance of the school." (See Reporter's Tr. at p. 26, 27.) Petitioner was also arrested for using the megaphone without a permit in violation of the City of Fairfield Municipal Ordinance § 12.9. Additionally, Petitioner was arrested for willfully resisting, delaying or obstructing a peace officer in the discharge of his duties in violation of California Penal Code § 148(a)(1).*fn5


A jury trial convened in 2003 on two misdemeanor charges, (§§ 148(a)(1) and 647c of the California Penal Code). Petitioner was not tried on violating the noise ordinance. The prosecution presented several witnesses including Carella, Ms. Acosta, Ms. Lawton, Officer Paul Bockrath (who arrived at the School after Carella) and Mr. Leonard DeVoto and Mr. Charles Fraga who witnessed the incident involving Petitioner and Ms. Acosta. Petitioner testified in his own defense and also presented the testimony of two teachers who were at the scene picketing with Petitioner on the morning of June 14, 2001.

The jury found Petitioner guilty of the two misdemeanors. After being sentenced to three years probation, Petitioner appealed his convictions to the Superior Court of California, County of Solano, Appellate Department. On March 12, 2004, that court affirmed the judgment without opinion. Subsequently, on April 23, 2004, that court also denied Petitioner's application for certification of cause to the California Court of Appeal, First Appellate District.

In August 2004, Petitioner filed a petition for writ of habeas corpus in the California Court of Appeal, First Appellate District. Among the claims raised in that state habeas petition were the claims that Petitioner raises in this federal habeas petition. The California Court of Appeal summarily denied his state habeas petition on August 18, 2004. Petitioner's appeal to the California Supreme Court was denied on February 2, 2005 without discussion.

Petitioner filed his original federal petition for writ of habeas corpus along with exhibits in this Court in May 2005. Subsequently, Petitioner amended his federal habeas petition on June 8, 2005.


An application for writ of habeas corpus by a person in custody under judgment of a state court can only be granted for violations of the Constitution or laws of the United States. See 28 U.S.C. § 2254(a); see also 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)). Petitioner filed this petition for writ of habeas corpus after April 24, 1996, thus the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA") applies. See Lindh v. Murphy, 521 U.S. 320, 326 (1997). Under AEDPA, federal habeas corpus relief is not available for any claim decided on the merits in the 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 state court. See 28 U.S.C. 2254(d).

If a 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 petitioner's habeas claims. See Delgadillo v. Woodford, 527 F.3d 919, 925 (9th Cir. 2008). Additionally, if a 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 the state court clearly erred in its application of Supreme Court law. See Larson v. Palmateer, 515 F.3d 1057, 1062 (9th Cir. 2010).

As a threshold matter, this Court must "first decide what constitutes 'clearly established Federal law, as determined by the Supreme Court of the United States.'" Lockyer v. Andrande, 538 U.S. 63, 71 (2003) (quoting 28 U.S.C. § 2254(d)(1)). "'[C]learly established federal law' under § 2254(d)(1) is the governing legal principle or principles set forth by the Supreme Court at the time the state court renders its decision.'" Id. (citations omitted). Under the unreasonable application clause, a federal habeas court making the unreasonable application inquiry should ask whether the state court's application of clearly established federal law was "objectively unreasonable." See Williams v. Taylor, 529 U.S. 362, 409 (2000). Thus, "a federal court may not issue the 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 also be unreasonable." Id. at 411. Although only Supreme Court law is binding on the states, Ninth Circuit precedent remains relevant persuasive authority in determining whether a state court decision is an objectively unreasonable application of clearly established federal law. See Clark v. Murphy, 331 F.3d 1062, 1072 (9th Cir. 2003) ("While only the Supreme Court's precedents are binding . . . and only those precedents need be reasonably applied, we may look for guidance to circuit precedents.").

The first step in applying AEDPA's standards is to "identify the state court decision that is appropriate for our review." See Barker v. Fleming, 423 F.3d 1085, 1091 (9th Cir. 2005).

When more than one court adjudicated Petitioner's claims, a federal habeas court analyzes the last reasoned decision. Id. (citing Ylst v. Nunnemaker, 501 U.S. 797, 803 (1991)). The state courts provided no reasoning to support the denial of Petitioner's Claims. Thus, the record will be independently reviewed. See Delgado v. Lewis, 223 F.3d 976, 981-82 (9th Cir. 2000).


Jurisdiction must be established before reaching the merits of Petitioner's Claims. "[F]ederal courts have jurisdiction to consider a habeas petition only if the petitioner is 'in custody' under the conviction or sentence under attack at the time his petition is filed." Fowler v. Sacramento County Sheriff's Dep't, 421 F.3d 1027, 1033 n.5 (9th Cir. 2005) (internal quotation marks and citations omitted). "'A probationary term is sufficient custody to confer [this] jurisdiction.'" Id. (quoting United States v. Spawr Optical Research, Inc., 864 F.2d 1467, 1470 (9th Cir. 1988)). Petitioner was on probation at the time he filed this federal habeas petition. Thus, jurisdiction is established. See Chaker v. Crogan, 428 F.3d 1215, 1219 (9th Cir. 2005).

Furthermore, even though Petitioner's three-year probationary term has expired, this does not moot his federal habeas petition under these circumstances. In Spencer v. Kemma, 521 U.S.1, 7-14 (1998) the Supreme Court held that a petitioner's release from custody did not offend Article III's "case or controversy" requirement so long as it appears that the petitioner could suffer adverse collateral consequences as a result of the conviction. There is a presumption that Petitioner's criminal convictions carry with them collateral consequences. See, e.g., Chaker, 428 F.3d at 1219; Chacon v. Wood, 36 F.3d 1459, 1463 (9th Cir. 1994), overruled on other grounds by 28 U.S.C. § 2254(c). As the instant federal habeas petition is not moot, the merits of Petitioner's Claims can be analyzed.


A. Claim I

In Claim I, Petitioner asserts his conviction under § 148(a)(1) was unconstitutional because the noise ordinance that Carella was enforcing, § 12.9 of Fairfield's Municipal Code, is unconstitutionally overly broad. Thus, he claims that Carella was not in the performance of his duties when he was enforcing § 12.9. The parties agree that the relevant section of § 12.9 at the time of Petitioner's arrest stated that "any musical instrument or any device, machine, apparatus, or instrument for intensification or amplification of the human voice or any sound or noise in such a manner that persons owning, using or occupying property in the neighborhood are disturbed." (Compare Pet'r's Am. Pet. at p. 37 with Resp't's Answer at p. 22 n.4.)

"Whether an officer is authorized to make an arrest ordinarily depends, in the first instance, on state law." Michigan v. DeFillippo, 443 U.S. 31, 36 (1979) (citing Ker v. California, 374 U.S. 23, 37 (1963); Johnson v. United States, 333 U.S. 10, 15 and n.5 (1948)). In California, the elements of a Section 148(a)(1) violation are: "(1) the defendant willfully resisted, delayed, or obstructed a peace officer, (2) when the officer was engaged in the performance of his or her duties, and (3) the defendant knew or reasonably should have known that the other person was a peace officer engaged in the performance of his or her duties." Smith v. City of Hemet, 394 F.3d 689, 695 (9th Cir. 2005) (internal quotation marks and citation omitted). However, "[i]n California, the lawfulness of the officer's conduct is an essential element of the offense of resisting, delaying, or obstructing a peace officer." Id. Petitioner asserts that Carella could not have been in the performance of his duties at the time of the § 148(a)(1) arrest because the noise ordinance violates the First Amendment to the United States Constitution. For the following reasons, the constitutionality of the noise ordinance need not be analyzed to decide this Claim.

In DeFillippo, 443 U.S. at 33, the United States Supreme Court analyzed "whether an arrest made in good-faith reliance on an ordinance, which at the time had not been declared unconstitutional, is valid regardless of a subsequent judicial determination of its unconstitutionality." In that case, the Detroit City Code provided that a police officer could stop and question an individual if he had reasonable cause to believe the behavior warranted further investigation for criminal activity. See id. Furthermore, the Detroit City Council made it unlawful for any person stopped pursuant to that section to refuse to identify himself and produce evidence of his identify. See id. The defendant in DeFillippo refused to identify himself at one of these stops. He was arrested and taken into custody where marijuana and another controlled substance (phencyclidine) were found on his person. See id. at 34. The defendant was charged with possession of a controlled substance and he moved to suppress the evidence. See id. The Michigan Court of Appeals found that the Detroit ordinance was unconstitutionally vague and that since the defendant had been arrested for violating that ordinance, the arrest and the search were invalid. See id.

On certiorari to the United States Supreme Court,the Court reiterated that "the Constitution permits an officer to arrest a suspect without a warrant if there is probable cause to believe that the suspect has committed or is committing an offense." Id. at 36 (citations omitted). "The validity of the arrest does not depend on whether the suspect actually committed a crime; the mere fact that the suspect is later acquitted of the offense for which he is arrested is irrelevant to the validity of the arrest." Id. Ultimately, the United States Supreme Court determined that "the subsequently determined invalidity of the Detroit ordinance on vagueness grounds does not undermine the validity of the arrest made for ...

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