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Walker v. Lattimore

October 27, 2010

FLORENCE WALKER, PETITIONER,
v.
MARY LATTIMORE, WARDEN, RESPONDENTS.



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

ORDER: (1) ADOPTING REPORT AND RECOMMENDATION IN FULL; (2) DENYING AND DISMISSING PETITION FOR WRIT OF HABEAS CORPUS; (3) DENYING A CERTIFICATE OF APPEALABILITY

On August 31, 2009, Petitioner Florence Walker ("Petitioner"), a state prisoner proceeding pro se, filed a Petition for Writ of Habeas Corpus ("Petition") pursuant to 28 U.S.C. § 2254 challenging her conviction. Petitioner pleaded guilty in the Superior Court for the County of San Diego, case number SCD193885, to two counts of assault with a deadly weapon. (Lodgment No. 1 at 00028.)

Petitioner alleges the following in her Petition: (1) the prior conviction used to enhance her sentence under California's three strikes' law was not a strike; (2) there was insufficient evidence to convict her of assault with a deadly weapon against Diana Berlinguette; (3) she was improperly sentenced under California law; (4) she was not advised of her Fifth Amendment right against self incrimination with regard to her admission that she suffered a prior conviction nor of her Sixth Amendment right to a have a jury decide the validity of her prior conviction; and (5) her sentence violates the Eighth Amendment to the United States Constitution. In addition, Petitioner alleges the following violations in her Traverse: (6) ineffective assistance of trial counsel; and (7) ineffective assistance of appellate counsel.

This matter was referred to Magistrate Judge Lewis, pursuant to 28 U.S.C. § 636(b)(1)(B). Respondent filed an answer on January 27, 2010, asserting several claims are procedurally defaulted and, in any event, all claims fail on the merits. (Doc. No. 7.) Petitioner filed her Traverse on March 17, 2010. (Doc. No. 12.) On July 13, 2010, the Magistrate Judge issued a Report and Recommendation ("R&R") recommending the Court dismiss certain claims as procedurally barred and deny the Petition. (Doc. No. 13.) Petitioner filed objections to the R&R on September 2, 2010. (Doc. No. 16.) 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 Magistrate Judge's R&R; (2) enters judgment DENYING and DISMISSING the Petition, and (3) DENIES a certificate of appealability.

BACKGROUND

I. Factual Background

The Court adopts the factual background as stated by the Magistrate Judge, (see R&R at 2), which in turn takes the facts from the Court of Appeal's opinion denying Petitioner's direct appeal of her conviction.Pursuant to 28 U.S.C. § 2254(e)(1), the Court presumes the factual determinations to be correct.

II. Procedural Background

The San Diego County District Attorney filed a felony complaint charging Petitioner with two counts of assault with a deadly weapon against two victims, Diana McDaniel (count one) and Diana Berlinguette (count two), in violation of California Penal Code (Penal Code) section 245(a)(1). (Lodgment No. 1 at 00001-04.) As to each of these counts, the complaint also alleged that Petitioner personally used a hammer, a deadly weapon within the meaning of Penal Code section 1192.7(c)(23). (Id.) The complaint also alleged that Petitioner had suffered two prior convictions which made her ineligible for probation within the meaning of Penal Code section 1203(e)(4). (Id.) The complaint alleged one of the convictions as a prior serious felony within the meaning of Penal Code sections 667(a), 668 and 1192.7(c), and as a prior strike conviction within the meaning of Penal Code sections 667(b)-(i), 668, and 1170.12. (Id.) Petitioner pleaded guilty to all charges and admitted suffering the prior convictions as alleged. (Id. at 00005-08; Lodgment No. 20, vol. 1.) She was sentenced to the aggravated term of four years in prison on the assault with a deadly weapon charge alleged in count one, which was doubled to eight years pursuant to the three strikes law. (Lodgment No. 1 at 00028-29; Lodgment No. 20, vol. 2 at 17.) The court also imposed a sentence of two years in prison for the assault with a deadly weapon charge alleged in count two, and five years in prison for personally using a hammer, for a total of fifteen years. (Lodgment No. 1 at 00028-29; Lodgment No. 20, vol. 2. ) Petitioner appealed her conviction and sentence to the California Court of Appeal. (Lodgment No. 1 at 00030; Lodgment Nos. 2-6.) The court affirmed Petitioner's convictions and sentence in a written, unpublished opinion. (Lodgment No. 7.) Petitioner thereafter filed a petition for review in the California Supreme Court, which that court denied without citation of authority. (Lodgment Nos. 8, 9.)

Petitioner filed a series of habeas corpus petitions in the state courts. She first filed a habeas corpus petition in the San Diego Superior Court, which that court denied in a written, unpublished order. (Lodgment Nos. 10, 11.) Thereafter, she filed a habeas corpus petition in the California Court of Appeal on September 8, 2008. (Lodgment No. 12.) While that petition was pending, Petitioner filed another habeas corpus action in the San Diego Superior Court. (Lodgment No. 13.) On November 6, 2008, the Superior Court denied her petition in a written, unpublished order, and on February 10, 2009, the state appellate court denied the petition she had filed in that court in a written, unpublished opinion. (Lodgment Nos. 14, 15.) Petitioner then filed another habeas corpus petition in the California Court of Appeal which that court denied in a written, unpublished opinion. (Lodgment Nos. 16, 17.) Finally, Petitioner filed a petition for writ of habeas corpus in the California Supreme Court. (Lodgment No. 18.) That court denied the petition in a one sentence decision that cited to In re Dixon 41 Cal. 2d 756 (Cal. 1953). (Lodgment No. 19.)

Petition filed the instant petition in a timely manner. Respondent filed an answer and Petitioner submitted a Traverse. (Doc. Nos. 7, 12.) The Magistrate Judge issued an R&R recommending the Court dismiss certain claims as procedurally barred and that the Court deny the Petition. (Doc. No. 13.) Petitioner subsequently filed her objections to the R&R. (Doc. No. 16.)

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 ...


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