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Theodore Loren Clark v. Michael Evans

February 4, 2011

THEODORE LOREN CLARK, PETITIONER,
v.
MICHAEL EVANS, ET AL., RESPONDENTS.



ORDER DISMISSING PETITION

I. INTRODUCTION

Petitioner, a state prisoner, proceeds pro se with a petition for writ of habeas corpus pursuant to 28 U.S.C. §2254. The parties have consented to jurisdiction by a United States Magistrate Judge.

II. BACKGROUND

Petitioner was previously married to the mother of C.U. and later, to the mother of D.S. When petitioner was married to D.S.'s mother, they lived together for a period of time as a family unit with C.U., D.S., and two other children. Between June 24, 1996 and June 23, 1998, when C.U. was seven to eight years old, petitioner touched her vagina with his hand and/or penis on more than one occasion, and also orally copulated her. Between June 11, 1996 and June 10, 1999, petitioner sodomized or attempted to sodomize D.S., who was six to eight years old.

Contacted by law enforcement in 2005, petitioner expressed remorse and admitted the crimes.

On July 11, 2006, petitioner pleaded no contest to seven counts of lewd conduct with a child (Cal. Penal Code § 288(a)) involving two different victims, and admitted an allegation of substantial sexual conduct (Cal. Penal Code § 1203.066(a)(8)) in exchange for a stipulated term of twenty years imprisonment. Petitioner was sentenced accordingly on September 22, 2006. During this time, petitioner was represented by counsel, Mr. Keene.

Petitioner's appellate attorney, Ms. Shors, filed a brief pursuant to People v. Wende, 25 Cal. 3d 436 (1979), declining to raise any specific claims on appeal. Accordingly, the California Court of Appeal, Third District, affirmed the judgment and sentence. Petitioner attempted to file a pro se petition for rehearing. The petition was denied because he was represented by counsel.

Petitioner filed a pro se habeas corpus petition in the Sacramento County Superior Court, alleging that the statute of limitations for his offenses had expired, that pre-indictment delay deprived him of rights guaranteed by the due process clause, and that Attorney Keene and Attorney Shors both rendered ineffective assistance of counsel. The superior court denied the petition in a written decision dated August 17, 2007. A subsequent petition to the California Supreme Court, was likewise denied, but without written explanation.

III. CLAIMS

The pending federal petition presents three grounds for relief. For purposes of this opinion, petitioner's claims will be addressed as follows:

(A) Petitioner contends that the statute of limitations expired before prosecution commenced. Petitioner claims that plea counsel, Mr. Keene, rendered ineffective assistance in failing to raise this issue prior to entry of plea, and appellate counsel, Ms. Shors, rendered ineffective assistance in failing to raise the issue on appeal. (See Petition, grounds one and three.)

(B) Petitioner contends that the delay between the time law enforcement was first contacted and the time prosecution was commenced violated his right to due process. Petitioner additionally claims that plea counsel, Mr. Keene, erred in failing to preserve this issue for appeal or by incorrectly advising petitioner that this issue would be preserved for appeal. (See petition, ground two.)

IV. APPLICABLE LAW FOR FEDERAL HABEAS CORPUS 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 (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). This court looks to the last reasoned state court decision in determining whether the law applied to a particular claim by the state courts was contrary to the law set forth in the cases of the United States Supreme Court or whether an unreasonable application of such law has occurred. Avila v. Galaza, 297 F.3d 911, 918 (9th Cir. 2002), cert. dismissed, 538 U.S. 919 (2003).

V. DISCUSSION

A. Ineffective Assistance of Counsel based on the Statute of Limitations Petitioner contends that the statute of limitations expired before prosecution commenced, and, consequently, that the Ex Post Facto Clause prohibited his subsequent convictions. In the pending petition, petitioner does not appear to bring a claim under the Ex Post Facto Clause; rather, he claims that both plea counsel and appellate counsel rendered ineffective assistance in failing to raise this issue prior to entry of the plea, and on appeal, respectively.

The Sixth Amendment guarantees a criminal defendant the effective assistance of counsel. A showing of ineffective assistance has two components. First, a petitioner must show that, considering all the circumstances, counsel's performance fell below an objective standard of reasonableness. Strickland v. Washington, 466 U.S. 668, 687-88 (1984). There is a strong presumption "that counsel's performance falls within the 'wide range of professional assistance,'" Kimmelman v. Morrison, 477 U.S. 365, 381 (1986) (quoting Strickland, 466 U.S. at 689), and that counsel "exercised acceptable professional judgment in all significant decisions made." Hughes v. Borg, 898 F.2d 695, 702 (9th Cir. 1990) (citing Strickland, 466 U.S. at 689).

The second factor required for a showing of ineffective assistance of counsel is actual prejudice caused by the deficient performance. Strickland, 466 U.S. at 693-94. Prejudice is found where "there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Id. at 694. A reasonable probability is "a probability sufficient to undermine confidence in ...


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