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George Lee Campbell v. R. E. Barnes

December 22, 2010

GEORGE LEE CAMPBELL, PETITIONER,
v.
R. E. BARNES,
RESPONDENT.



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

ORDER DENYING PETITION FOR WRIT OF HABEAS CORPUS; DIRECTING CLERK OF COURT TO ENTER JUDGMENT; AND DECLINING ISSUANCE OF CERTIFICATE OF APPEALABILITY

I. INTRODUCTION

Petitioner George Lee Campbell is a state prisoner proceeding pro se with a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254. Pursuant to 28 U.S.C. § 636(c)(1), the parties have consented to the jurisdiction of the United States Magistrate Judge. See Pet'r's Consent 1, ECF No. 5; Resp't's Consent 1, ECF No. 9. For the following reasons, the habeas petition is denied.

II. PROCEDURAL HISTORY

On April 26, 2007, Petitioner was convicted of: (1) unlawful driving or taking of a vehicle without the consent of the owner, CAL. VEH. CODE § 10851(a); and (2) buying or receiving a stolen vehicle, CAL. PEN. CODE 496d(a), by a jury in Sacramento County Superior Court. See Lodged Doc. No. 1, Clerk's Tr. 5; see also Lodged Doc. No. 6, at 1. Petitioner "waived his right to a jury trial on his prior convictions," and the trial court found true that Petitioner: (1) "had four previous [California] Vehicle Code [S]section 10851, subdivision (a)[,] convictions;" and (2) "served five prior prison terms, one of which was a prior serious felony." Lodged Doc. No. 6, at 2. On May 31, 2007, Petitioner was sentenced to thirteen years in state prison. See Lodged Doc. No. 1, at 175; see also Lodged Doc. No. 6, at 1.

Petitioner directly appealed to the California Court of Appeal, Third Appellate District. See Pet'r's Pet. 2, ECF No. 1. On August 15, 2008, the California Court of Appeal issued a reasoned decision "strik[ing] one of the one-year enhancements," and otherwise affirming judgment.Lodged Doc. No. 6, at 2.

On September 18, 2008, Petitioner filed a petition for review in the California Supreme Court. See Lodged Doc. No. 7. On October 22, 2008, the California Supreme Court denied the petition without comment or citation. See id.

On November 17, 2008, Petitioner filed the instant federal habeas petition. See Pet'r's Pet. On December 3, 2008, Petitioner consented to the jurisdiction of a United States Magistrate Judge. See Pet'r's Consent 1. On June 23, 2009, Respondent consented to the jurisdiction of a United States Magistrate Judge. See Resp't's Consent 1. On August 27, 2009, Respondent filed an answer. See Resp't's Answer, ECF No. 14. The record does not show that Petitioner filed a traverse.

III. FACTUAL BACKGROUND*fn1

On January 11, 2007, Officer Patricia Varozza pulled over a new red Corvette driven by [Petitioner] after [Petitioner] ran a stop sign. When the owner of a car dealership identified the car as belonging to the dealership, Varozza arrested [Petitioner].

Varozza pulled [Petitioner] over after he ran a stop sign. She asked for his driver's license and registration. [Petitioner] stated he lacked a license and was test driving the Corvette. He told Varozza that his friend Trina was actually test driving the car, which she had gotten from a Chevrolet dealership. He met Trina at a McDonald's restaurant, and Trina let him drive the Corvette to the store.

When Varozza asked [Petitioner] for the keys, he removed a "key fob" from his pocket and explained how the keyless entry device worked. The Corvette's ignition system did not show signs of tampering. Varozza spotted an open container of beer in the car. Varozza cited [Petitioner] and released him.

However, while Varozza was speaking with [Petitioner], another officer who had come to the scene called Paul Blanco Chevrolet to determine whether the car was stolen. As [Petitioner] began to walk away, Paul Blanco arrived and identified the Corvette as belonging to his dealership. Varozza called [Petitioner] back and arrested him.

Following his arrest, Varozza questioned [Petitioner] at the jail. [Petitioner] told Varozza that Trina was also known as Katrina Lamb, but he hesitated to provide more details out of fear that his wife would find out. [Petitioner] had met Katrina at McDonald's earlier that morning. She had the car, and [Petitioner] asked to borrow it to go to the store. [Petitioner] did not suspect the car had been stolen since Katrina had given him the key fob.

Blanco had last seen the car the night before and did not know it was missing until notified by the officer. At the scene, Blanco identified the car, which still had the dealership plate and plate bracket in place. The only damage to the car was a puddle of spilled beer on the floor of the front passenger side. The key fob was used to start the car; no key was needed.

Around the time the car disappeared, the dealership surveillance camera was not operating. The keys for cars at the dealership were in an unlocked showroom.

At the dealership, when a customer test drove a car, the dealership made a copy of the customer's driver's license and insurance card. An employee accompanied the customer on the test drive. The Corvette had been last driven a few days previously by a man from Auburn. No one at the dealership ever gave [Petitioner] permission to drive the car, which was valued at between $36,000 and $40,000.

Trina Lamb denied test driving the Corvette and denied she had been at the fast food restaurant the day of the incident.*fn2 Trina left [Petitioner] at home while she took their daughter to day care. Their daughter talked to [Petitioner] on the phone on the way to day care; the call ended around 9:45 a.m. The couple lived about a 10-minute drive from the dealership. Trina had never gone by the name Katrina.

After his arrest, [Petitioner] twice called Trina from jail. The phone [Petitioner] used informed callers the call could be recorded or monitored. In his first call, [Petitioner] told Trina he thought he had run into the man who sold him the car for $100. [Petitioner] also told Trina he had an "old boy" who was willing to come forward and say he gave [Petitioner] the car for $100. However, [Petitioner] also said that if this person was in jail around the time [Petitioner] "rented" the car, "it ain't going to work." According to [Petitioner], "basically the overall picture, a thousand I get free." [Petitioner] said the man's named was John Richardson; he provided Trina with Richardson's jail reference number and asked her to find out when Richardson had been arrested. If Richardson was arrested after [Petitioner], [Petitioner] stated "there's a green light. But if it's before that, we might be back to square one.*fn3 A few weeks later, [Petitioner] again called Trina from jail and said they "might have to go to Plan B." [Petitioner] told Trina his "folks" were going to get out and try to find the man who sold him the car. [Petitioner] also told Trina she was to talk to a man to tell him that she had seen [Petitioner] "out there talking, buying a car." [Petitioner] also worried there might be a surveillance video of the person who took the Corvette's keys.

The parties stipulated that a dealership employee would testify that the morning of [Petitioner's] arrest he observed a black male standing in the dealership's customer service area. However, the employee could not identify [Petitioner] in court.

The prosecution also presented evidence of two prior incidents involving [Petitioner]. In 1993 a police officer attempted to stop [Petitioner], who was driving a 1990 Geo Storm. [Petitioner] led the officer on a high-speed chase before crashing the car into a fence. The car had been stolen from a Chevrolet dealership. In 1990 police stopped and arrested [Petitioner] for recklessly driving a 1989 Chevrolet Capri. That car also proved to be stolen from a Chevrolet dealership.

IV. APPLICABLE LAW FOR FEDERAL HABEAS CORPUS*fn4 An application for writ of habeas corpus by a person in custody under judgment of a state court can be granted only for violations of the Constitution or laws of the United States. 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)). This petition for writ of habeas corpus was filed after the effective date of, and thus is subject to, the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"). Lindh v. Murphy, 521 U.S. 320, 326 (1997); see also Weaver v. Thompson, 197 F.3d 359, 362 (9th Cir. 1999). Under AEDPA, federal habeas corpus relief also 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); see also Penry v. Johnson, 532 U.S. 782, 792-93 (2001); Williams v. Taylor, 529 U.S. 362, 402-03 (2000); Lockhart v. Terhune, 250 F.3d 1223, 1229 (9th Cir.2001).

In applying AEDPA's standards, the federal court must "identify the state court decision that is appropriate for our review." Barker v. Fleming, 423 F.3d 1085, 1091 (9th Cir. 2005). "The relevant state court determination for purposes of AEDPA review is the last reasoned state court decision." Delgadillo v. Woodford, 527 F.3d 919, 925 (9th Cir. 2008) (citations omitted). "Where there has been one reasoned state judgment rejecting a federal claim, later unexplained orders upholding that judgment or rejecting the same claim rest upon the same ground." Ylst v. Nunnemaker, 501 U.S. 797, 803 (1991). To the extent no such reasoned opinion exists, courts must conduct an independent review of the record to determine whether the state court clearly erred in its application of controlling federal law, and whether the state court's decision was objectively unreasonable. Delgado v. Lewis, 223 F.3d 976, 981-82 (9th Cir. 2000). "The question under AEDPA is not whether a federal court believes the state court's determination was incorrect but whether that determination was unreasonable--a substantially higher threshold." Schriro v. Landrigan, 550 U.S. 465, 473 (2007) (citing Williams, 529 U.S. at 410). "When it is clear, however, that the state court has not decided an issue, we review that question de novo." Reynoso v. Giurbino, 462 F.3d 1099, 1109 (9th Cir. 2006) (citing Rompilla v. Beard, 545 U.S. 374, 377 (2005)).

V. CLAIM FOR REVIEW

The petition for writ of habeas corpus sets forth one ground for relief. Petitioner's ground for relief consists of solely one sentence, i.e., his "conviction [was] obtained by action of a grand or petit jury which was unconstitutionally selected and impaneled." Pet'r's Pet. 4. Petitioner then refers to "exhibit A." Id. There is no "exhibit A" attached to Petitioner's federal habeas petition.*fn5 A review of Petitioner's petition for review, however, clarifies Petitioner's ground for relief. In Petitioner's petition for review, Petitioner asserts there was "disparity in treatment between the two black jurors who were excused and the white jurors who were left on the jury[,] evinc[ing] discriminatory intent in violation of [Petitioner's] rights under the Sixth and Fourteenth Amendments . . . to an impartial jury selected without discrimination." Lodged Doc. No. 7, at i. In other words, Petitioner, who is African American, claims his conviction must be reversed because the prosecutor exercised peremptory challenges to strike two black jurors, Donna McClain and Morris Burnett, on the basis of race, in violation of Batson v. Kentucky, 476 U.S. 79 (1986).

A. The Record Below

The record reflects that there were six African American jurors in the pool of sixty-five "members in the jury panel." Lodged Doc. No. 3, Rep.'s Appeal Tr. 34; see also Lodged Doc. No. 1, Clerk's Tr. 44. "One was excused by the Court for cause" because she had "a prior vehicle theft in her family." Lodged Doc. No. 3, Rep.'s Appeal Tr. 34. "Three made it as far as the jury panel . . . , and the two challenges made by the [State] were African[]Americans." Id. One member of the seated jury, Juror Number 2929357, "appear[ed] to be at least half African[]American," as he "seem[ed] to have an African-sounding last name." Id. at 35. However, although Juror Number 2929357 had "[d]readlocks," he was "light-skinned," "work[ed] for the Sheriff's Department," and "park[ed] in the same building as the [p]rosecutor in this case." Id. The two challenged African Americans, Donna McClain and Morris Burnett, were not light-skinned. Id.

1. Prospective Juror Donna McClain and Pertinent Voir Dire Proceedings During voir dire, the following colloquy occurred between McClain and the State:

[THE STATE:] . . . Ms. McClain, can you tell us what you do at the corrections.

PROSPECTIVE JUROR MCCLAIN: I work in personnel. I'm a personnel liaison. [THE STATE:] How about with the highway patrol? What do you do with them?

PROSPECTIVE JUROR MCCLAIN: Analyst with the cadet selection program. That's the first point of contact with anyone that wants to become a highway patrol person. [THE STATE:] You were the first point of contact? PROSPECTIVE JUROR MCCLAIN: (Prospective [j]uror nodding head.) [THE STATE:] So pretty much then you were, I guess, kind of inside, kind of behind the scenes type of work as opposed to being out in the field writing tickets and stuff?

PROSPECTIVE JUROR MCCLAIN: Right. [THE STATE:] You're not a sworn police officer then? PROSPECTIVE JUROR MCCLAIN: No, no. [THE STATE:] Okay. How long have you been, kind of combined, been with the highway patrol and corrections respectively?

PROSPECTIVE JUROR MCCLAIN: It's been 13 years total. Well, 12 at the highway patrol and -- 12 and a half, and then seven months with corrections. [THE STATE:] I think you mentioned -- I'm kind of changing subjects on you a little bit. Your son, I think you mentioned, was a victim of kind of a mistaken identity?

PROSPECTIVE JUROR MCCLAIN: Yes. [THE STATE:] Was he actually arrested for that? PROSPECTIVE JUROR MCCLAIN: Yes. [THE STATE:] That crime?

PROSPECTIVE JUROR MCCLAIN: (Prospective juror nodding head.) [THE STATE:] Arrested in Sacramento or [s]outhern California? PROSPECTIVE JUROR MCCLAIN: Sacramento. [THE STATE:] Which agency arrested him?

PROSPECTIVE JUROR MCCLAIN: I'm not sure. [THE STATE:] Ultimately, sounds as though he was not convicted of any crime?

PROSPECTIVE JUROR MCCLAIN: No. [THE STATE:] Was it dismissed?

PROSPECTIVE JUROR MCCLAIN: Yes, it was. [THE STATE:] Based on your conversations with your son, is it your impression that he was treated fairly by the law enforcement agency that handled his arrest?

PROSPECTIVE JUROR MCCLAIN: I don't know if he was that fairly treated. [THE STATE:] You don't know if he was that fairly treated? PROSPECTIVE JUROR MCCLAIN: No. I mean, because one thing, they said they had the person's fingerprints, that they had arrested the guy, but they never took his fingerprints, but they kept him down at the station all day long and never ...


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