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O'Rourke v. O'Connor

November 22, 2010

JAMES O'ROURKE, PETITIONER,
v.
BRYAN O'CONNOR, ET AL., RESPONDENTS.



The opinion of the court was delivered by: Craig M. Kellison United States Magistrate Judge

MEMORANDUM OPINION AND ORDER

Petitioner, a former state prisoner currently on parole and proceeding with retained counsel, brings this petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. Pursuant to the written consent of all parties, this case is before the undersigned as the presiding judge for all purposes, including entry of final judgment. See 28 U.S.C. § 636(c). Pending before the court is petitioner's petition for a writ of habeas corpus (Doc. 1), respondents' answer (Doc. 14)*fn1, and petitioner's reply (Doc. 16).

I. BACKGROUND

A. Facts*fn2

The state court recited the following facts, and petitioner has not offered any clear and convincing evidence to rebut the presumption that these facts are correct:

Defendant James O'Rourke was a pretty scary neighbor. Four people living on his street testified he often shined a high intensity beam flashlight into their windows, yelled and cursed at them, gave them the middle finger, displayed a gun, threatened them, ran through their yard, sprayed one with a hose, and vandalized their property....

We need not elaborate on the facts beyond those recited above. There is no dispute that defendant engaged in a series of acts targeted at four different neighbors, although he testified and gave a different interpretation of his actions. Because the question before us is legal, not factual, we accept the neighbors' testimony that he harassed them over a period of time.

B. Procedural History

Petitioner was convicted following a jury trial of four counts of stalking -- one for each of the four neighbor victims. Petitioner was sentenced to four years in state prison. He has completed that term and is currently on parole. Petitioner's conviction and sentence were affirmed on direct appeal in a reasoned decision issued by the California Court of Appeal. The California Supreme Court denied review without comment or citation.

II. STANDARDS OF REVIEW

Because this action was filed after April 26, 1996, the provisions of the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA") are presumptively applicable. See Lindh v. Murphy, 521 U.S. 320, 336 (1997); Calderon v. United States Dist. Ct. (Beeler), 128 F.3d 1283, 1287 (9th Cir. 1997), cert. denied, 522 U.S. 1099 (1998). The AEDPA does not, however, apply in all circumstances. When it is clear that a state court has not reached the merits of a petitioner's claim, because it was not raised in state court or because the court denied it on procedural grounds, the AEDPA deference scheme does not apply and a federal habeas court must review the claim de novo. See Pirtle v. Morgan, 313 F.3d 1160 (9th Cir. 2002) (holding that the AEDPA did not apply where Washington Supreme Court refused to reach petitioner's claim under its "re-litigation rule"); see also Killian v. Poole, 282 F.3d 1204, 1208 (9th Cir. 2002) (holding that, where state court denied petitioner an evidentiary hearing on perjury claim, AEDPA did not apply because evidence of the perjury was adduced only at the evidentiary hearing in federal court); Appel v. Horn, 250 F.3d 203, 210 (3d Cir.2001) (reviewing petition de novo where state court had issued a ruling on the merits of a related claim, but not the claim alleged by petitioner). When the state court does not reach the merits of a claim, "concerns about comity and federalism... do not exist." Pirtle, 313 F. 3d at 1167.

Where AEDPA is applicable, federal habeas relief under 28 U.S.C. § 2254(d) 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 ...


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