The opinion of the court was delivered by: Sheila K. Oberto United States Magistrate Judge
ORDER DIRECTING THE CLERK TO
SUBSTITUTE JAMES A YATES, WARDEN, AS RESPONDENT
FINDINGS AND RECOMMENDATIONS TO DENY
PETITIONER'S REQUEST FOR JUDICIAL NOTICE AND THE
INTRODUCTION OF EXCULPATORY
EVIDENCE (DOC. 49)
FINDINGS AND RECOMMENDATIONS TO DENY THE PETITION FOR WRIT OF HABEAS CORPUS (DOC. 7) AND TO DECLINE TO ISSUE A CERTIFICATE OF APPEALABILITY OBJECTIONS DEADLINE: THIRTY (30) DAYS
Petitioner is a state prisoner proceeding pro se and in forma pauperis with a petition pursuant to 28 U.S.C. § 2254. The matter has been referred to the Magistrate Judge pursuant to 28 U.S.C. § 636(b)(1) and Local Rules 302 and 303. Pending before the Court is the petition, which was filed on January 2, 2008.
Also pending before the Court is Petitioner's request for judicial notice and the introduction of exculpatory evidence, filed in this Court on August 25, 2010.
In case number VCF114930, Petitioner was convicted on December 15, 2004, in the Tulare County Superior Court of making criminal threats (count 1) in violation of Cal. Pen. Code § 422 and of assault (count 2) in violation of Cal. Pen. Code § 240.
(2 CT 413-14.) He was sentenced to thirty-one (31) years to life pursuant to California's "Three Strikes" law, Cal. Pen. Code § 667(a)(i). (Ans. 6:6-7.)
Petitioner filed his petition in this Court on January 2, 2008. By order of the Court dated June 2, 2008, four of the claims stated in the petition were stricken, and Respondent was directed to file a response to the first five claims. Respondent's motion to dismiss the claims for failure to exhaust state remedies was denied on September 21, 2009.
The case thus proceeds on the following grounds for relief:
1) Petitioner's conviction for criminal threats must be reversed because there was insufficient evidence the victim experienced sustained fear (Lodged Doc. 4 at 6-10); 2) Petitioner's conviction for criminal threats must be reversed because there was insufficient evidence the threat was unconditional under the circumstances; 3) trial counsel was ineffective for not presenting evidence of Petitioner's mental disorder; 4) the trial court erred in denying Petitioner's motion to dismiss on the grounds that his speedy trial rights had been violated; and 5) Petitioner's five-year enhancement under Cal. Pen. Code § 667(a)(1) must be dismissed due to prosecutorial vindictiveness.
On December 7, 2009, Respondent filed an answer to the petition contending that although the petition was timely filed and the claims (with the exception of the speedy trial claim) were fairly presented to the California Supreme Court, the state court's rejections of Petitioner's claims were objectively reasonable, and the petition should be denied. (Ans., doc. 40, 7:7-15.) The crimes involved Petitioner's threatening and assaulting his domestic partner on August 22, 2003, at a time when Petitioner was suffering pain and emotional upset from a back injury. (Ans. 9-14.)
Petitioner filed a traverse on March 1, 2010.
II. Jurisdiction and Substitution of Respondent Yates
Because the petition was filed after April 24, 1996, the effective date of the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA), the AEDPA applies in this proceeding. Lindh v. Murphy, 521 U.S. 320, 327 (1997), cert. denied, 522 U.S. 1008 (1997); Furman v. Wood, 190 F.3d 1002, 1004 (9th Cir. 1999).
A district court may entertain a petition for a writ of habeas corpus by a person in custody pursuant to the judgment of a state court only on the ground that the custody is in violation of the Constitution, laws, or treaties of the United States. 28 U.S.C. §§ 2254(a), 2241(c)(3); Williams v. Taylor, 529 U.S. 362, 375 n.7 (2000); Wilson v. Corcoran, 562 U.S. --, -, 131 S.Ct. 13, 16 (2010) (percuriam).
Petitioner claims that in the course of the proceedings resulting in his conviction, he suffered violations of his Fifth, Sixth, and Fourteenth Amendment rights. Thus, violations of the Constitution are alleged. Further, the conviction challenged arises out of the Tulare County Superior Court (TCSC), which is located within the jurisdiction of this Court. 28 U.S.C. §§ 2254(a), 2241(a), (d).
A petition for writ of habeas corpus shall allege the name of the person who has custody over the applicant. 28 U.S.C. § 2242; Rule 2(a) of the Rules Governing Section 2254 Cases in the District Courts (Habeas Rules). The respondent must have the power or authority to provide the relief to which a petitioner is entitled. Smith v. Idaho, 392 F.3d 350, 355 n. 3 (9th Cir. 2004).
Further, Rule 25(d) provides that a court may at any time order substitution of a public officer who is a party in an official capacity whose predecessor dies, resigns, or otherwise ceases to hold office.
With respect to jurisdiction over the Respondent, Petitioner named as Respondent T. Felker, Warden. At the time the petition was filed, Petitioner was a resident of High Desert State Prison. (Pet. 1.) However, in September 2009, Petitioner's address changed to the Pleasant Valley State Prison (PVSP) in Coalinga, California, an institution within the boundaries of the district of this Court. Respondent answered the petition thereafter without contesting the jurisdiction of the Court over Respondent. Reference to the official website of the California Department of Corrections and Rehabilitation (CDCR) reflects that James A.
Yates is the Warden of PVSP.*fn1 The Court concludes that Respondent has waived any objection to the Court's jurisdiction over the Respondent. The Court further concludes that James A. Yates, Warden of PVSP, is an appropriate respondent in this action, and that pursuant to Fed. R. Civ. P. 25(d), he should be substituted in place of T. Felker, Warden.
Accordingly, the Clerk is DIRECTED to substitute James A. Yates, Warden, as Respondent in place of T. Felker, Warden.
Title 28 U.S.C. § 2254 provides:
(d) An application for a writ of habeas corpus on behalf of a person in custody pursuant to the judgment of a State court shall not be granted with respect to any claim that was adjudicated on the merits in State court proceedings unless the 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.
(e)(1) In a proceeding instituted by an application for a writ of habeas corpus by a person in custody pursuant to the judgment of a State court, a determination of a factual issue made by a State court shall be presumed to be correct. The applicant shall have the burden of rebutting the presumption or correctness by clear and convincing evidence.
The Petitioner bears the burden of establishing that the decision of the state court was contrary to, or involved unreasonable application of, the precedents of the United States Supreme Court. Lambert v. Blodgett, 393 F.3d 943, 970 n.16 (9th Cir. 2004); Baylor v. Estelle, 94 F.3d 1321, 1325 (9th Cir.1996).
Where the California Supreme Court denies a habeas petition or petition for review without citation or comment, a district court will "look through" the unexplained decision of that state court to the last reasoned decision of a lower court as the relevant state-court determination. Ylst v. Nunnemaker, 501 U.S. 797, 803-04 (1991); Taylor v. Maddox, 366 F.3d 992, 998 n.5 (9th Cir. 2004); Shackleford v. Hubbard, 234 F.3d 1072, 1079 n.2 (9th Cir. 2000).
On November 15, 2006, in case number S147096, the California Supreme Court denied Petitioner's petition for review of the intermediate state appellate court's decision affirming Petitioner's conviction. The petition was denied without citation or comment. (Lodged Document (LD) 26.) The Court will thus look to the earlier appellate opinion of the California Court of Appeal, Fifth Appellate District (DCA).
Petitioner does not challenge the factual findings of the state court. In his appeal from the judgment, Petitioner raised the two issues concerning the sufficiency of the evidence that he raises in the pending petition. Pursuant to 28 U.S.C. § 2254(e)(1), the statement of facts from the unpublished appellate opinion of the DCA, filed on August 24, 2006, follows:*fn2
In July 2002, S.M. met appellant. S.M. had two young children. Appellant moved in with S.M. and her children in September or October 2002, and their daughter was born in May 2003. As of August 2003, the couple and the three children lived in an apartment in Visalia. At that time, appellant and S.M. were having financial problems, they did not have much money, and they were going to have to move out of their apartment. S.M. testified appellant suffered from a bulging disc in his back, which was very hard on him and made him moody and depressed. Appellant was "in pain. A lot of times he would talk about-like, if me and him fussed, then it would aggravate his back more." Appellant's mood changed daily, depending on his medication.
S.M. testified about domestic violence incidents which began after the birth of their daughter, and occurred between May and August 2003. On one occasion, appellant gave her a black eye. On other occasions, appellant grabbed her hair and threatened to force her head into the toilet, and threatened to choke her with a telephone cord. Appellant also grabbed her by the throat and slammed her against the wall. S.M. testified most of these incidents occurred shortly before appellant was arrested in this case. S.M. also testified appellant's threats were just words, and they had a cordless telephone so appellant could not have wrapped a telephone cord around her neck. At trial, S.M. insisted the incidents were really mutual arguments.
Melissa Jones lived in the same apartment building as S.M. Jones and S.M. were close friends and they visited nearly every day. Jones initially liked appellant and thought he was a good guy, but she never had a personal relationship or flirted with appellant. Jones testified that just before the incident in this case, she noticed that things "just kind of flipped upside down" with appellant. Appellant and S.M. told her that appellant suffered some type of back injury. Jones testified there were frequent confrontations and arguments between appellant and S.M., and Jones became afraid of appellant because of his temper. She saw S.M. with a black eye, and S.M. said appellant gave it to her. Jones told S.M. she was crazy to stay with appellant. Jones testified that appellant would greet her by saying that if she did not say hello, he would blow up her car, and Jones would respond that she better pay up on her car insurance. Jones thought he was joking, but that was the way he communicated with her and sometimes she felt intimidated.
On August 22, 2003, S.M. left the house with her two older children, ages five and seven years old, and headed to the grocery store because she needed supplies for the baby. S.M. only had $20, and briefly discussed with appellant how far that would get her in a grocery store. After she left the house, S.M. discovered she had a check in her purse, cashed it, and then went to the grocery store.
S.M. returned to the apartment and pulled into the parking lot. The children helped unload the groceries.
S.M. thought she saw the children's playmate, J.B., also help with the groceries. Appellant emerged from the apartment, met her in the parking lot, and told her two children to go inside.
S.M. testified that appellant said he was not "too happy" with her because they only had $20, she was gone an hour or two, and she left the baby with him. Appellant yelled at her, and threw the groceries on the ground and in her direction. She backed away from appellant, went across the street, and sat on the curb. At trial, S.M. testified she was surprised by appellant's conduct, things were chaotic, and "so much was going on I don't remember what was said." "I know what it says in your paperwork... but I don't remember it for my own." S.M. insisted that not everything in the police report was correct. S.M. admitted appellant grabbed her throat, but insisted she was sitting on the curb and he did not squeeze her neck or hurt her. She did not remember if she begged him to stop throwing things, or if appellant said anything about calling the police. She was not afraid but in shock.
Jones testified she was sitting outside her apartment when she noticed S.M. unloading groceries from her car. Appellant came outside, and he was "really angry and was screaming at her," and using "foul language." Jones testified appellant threw milk and canned goods at S.M. S.M. put up her hands to guard herself, told appellant to stop, and backed away from him. Jones saw the milk splatter on the ground but could not tell if the cans hit S.M.
Jones testified S.M. was crying and appellant pinned her on the ground. Jones testified that as appellant pinned her down, S.M. told appellant to stop "because the neighbors were going to call the cops, and he said to let them go ahead and call the cops because she would be dead before they got there."
J.B., who was nine-years-old at the time of trial, lived across the road from S.M.'s apartment and played with her children. On that afternoon, J.B. saw S.M. pull into the parking lot, and ran over to help carry the groceries in the house. J.B. ran back to his house to get his rollerblades. J.B. testified that when he returned outside, he realized the groceries had been thrown around the street. He thought appellant threw the groceries, but he did not see appellant do it.
J.B. testified S.M. was sitting in the middle of the street. Her face was in her hands, and she was crying.
J.B. testified that S.M. told appellant, "I'm going to call the cops. And [appellant] said you'll be dead before the cops get here." J.B. testified appellant's voice was "regular yelling" when he said "you'll be dead before the cops get here." Appellant was not standing next to S.M. when he made this statement. J.B. testified appellant walked closer to S.M. and raised his hand above his head, as if to hit her, but J.B. never saw appellant actually hit her. J.B. testified he was scared and never saw anyone act like that before.
J.B. went back into his house and told his father. His father went outside, and then called the police.
In the meantime, S.M. testified appellant suddenly left her alone and went back into the apartment. S.M. eventually joined him in the apartment. She found appellant in the bedroom with their baby. She started dinner, and then sat outside on her front steps to watch her children play. S.M. denied that she spoke to Jones about the incident while she sat outside, or that she was crying and Jones tried to comfort her. At trial, S.M. testified she did not trust Jones because she believed Jones flirted with appellant when S.M. was pregnant.
Jones testified appellant abruptly left S.M. in the street and went into the house. S.M. followed him into the house, and subsequently returned outside and sat on the steps to smoke a cigarette. Jones checked on her and asked if she was okay. S.M. was shaking and still crying. Jones testified that S.M. said "she was afraid that he was going to kill her that night, because he had his hand around her throat." Jones saw red marks on her neck, and S.M. said appellant placed his hand around her throat when he pinned her on the ground, and the marks were from his hand.
Jones testified she was worried about S.M. but, based on her recent observations of appellant's conduct, she was too afraid of appellant to call the police. J.B.'s father came outside and spoke to Jones, and he decided to call the police.
Around 7:30 p.m., Visalia Police Officers Dwight Brumley and Amy Watkins responded to the scene on a domestic violence call. The officers spoke to J.B., who was scared but reported that appellant threatened S.M. that she would be dead before the police arrived.
The officers next made contact with S.M., who was sitting by herself on the stairwell and smoking. Officer Brumley believed S.M. looked very timid, nervous, and soft spoken. She had been crying and was visibly upset. Brumley asked for appellant's whereabouts, and S.M. said he was in the house. She said that she would put away their pit bull and bring appellant outside.
Based on J.B.'s statements about appellant's threats, Officer Brumley did not want to lose sight of S.M. so he stepped into the doorway when she went into the house. S.M. brought appellant to the front door without incident. Brumley testified appellant appeared angry. Watkins described appellant as irate. "Q. On a scale of one to ten, zero being a happy-camper, ten being a raging crazy maniac, on that scale how angry did [appellant] appear to you? "[Brumley]. Prior to arrest and during arrest, eight." Asked the same question, Officer Watkins described appellant's anger at "[n]ine and a half."
Officer Brumley interviewed appellant outside, while Officer Watkins went into the house and interviewed S.M. Watkins advised S.M. about J.B.'s report. S.M. said appellant was upset because she went to the store and left the baby with him. S.M. said during the altercation, she told appellant she was going to call the police, and appellant said "go ahead and call them, that you'll be dead before they get here." Watkins testified S.M. was crying and afraid as she talked with her. S.M. said she did not want to go any further because she was afraid of appellant, and feared for her safety.
After Officer Brumley spoke with appellant, he went into the house and separately interviewed S.M. while Officer Watkins stayed outside with appellant. S.M. was crying, and said appellant was upset because she was only supposed to be gone 20 minutes but came back much later. Brumley asked S.M. if anything physical happened, and S.M. nodded yes. Brumley asked if appellant pushed her, and she again nodded yes. Brumley asked what appellant said would happen if she called the police. S.M. cried and said she was scared. "Well, I then asked her if [appellant] had threatened that if we were called, she would be dead before we get there? [¶] She nodded yes again. [¶] And then I asked her if she actually believed [appellant] would carry out the threat? [¶] And she nodded yes."
Officer Brumley testified S.M. had scratches which ran up her neck, and the marks appeared fresh. She also had a small scratch or abrasion on her nose, and the skin was broken.
After he interviewed S.M., Officer Brumley went outside and arrested appellant. Appellant was agitated and still angry. Brumley testified appellant's anger "escalated" when he was arrested. Appellant tried to run back into the apartment, but the officers took him into custody.
Officer Brumley went back into the house, and asked S.M. if she wanted an emergency protective order. S.M. declined and said she would just violate it. "She told me no, that she wouldn't follow the stipulations. She again stated she was frightened. However, she did not want one." Officer Brumley took photographs of the marks on S.M.'s face and neck, and the photographs were introduced to the jury.
Officer Watkins transported appellant to the hospital, where appellant was still agitated but calmed down somewhat. Officer Brumley met Officer Watkins at the hospital, and appellant was medically cleared for transportation to jail.
Officer Brumley testified he visited S.M. the day after appellant was arrested because he was concerned about her. He wanted to see how she was doing, and whether her injuries were any worse.
At trial, S.M. testified the police arrived about 20 to 30 minutes after the incident with appellant. S.M. admitted there were marks on her neck and nose, but denied the marks were from the confrontation and insisted she easily got marks on her face. "When I get out of the shower and dry off, I get red marks." S.M. denied telling the police that she feared for her safety, or that she felt appellant would carry out his threat. S.M. testified she would have accepted the officer's offer of a restraining order if she felt afraid, but she was not afraid and refused the offer.
S.M. denied that she went to J.B.'s house after appellant was arrested, or that she thanked J.B.'s father for being concerned enough to call the police.
S.M. denied talking to an officer the following day, or thanking the officer for his concern. S.M. testified she talked with appellant the night he was arrested. She denied that he asked her to make the trouble go away. Instead, he "dedicated a song to me."
After appellant was arrested, S.M. and her children moved out of the apartment, as already planned, and lived with her mother. At the time of trial, S.M. was married to a different man. S.M. was shocked when she read the police report, and felt the officers put words in her mouth. It really bothered her, and she told an investigator that she did not want appellant prosecuted because of what was in the report. S.M. denied that she was financially dependent on appellant when the incident occurred.
S.M. testified she did not care if appellant was released from custody. S.M. admitted her husband had called the jail and asked to be informed if appellant was released. S.M. explained that "a lot of it has to do with my daughter and just being prepared for whatever goes on after [appellant] gets out." S.M. also admitted appellant made "snide remarks" and "[l]ittle innuendoes" in letters to her husband, but "of course he probably has ill feelings. It is mutual, most likely." "Q. So they would be valid threats? "A. Yeah."
Also at trial, Linda Compo-Blovich (Compo-Blovich) testified for the prosecution as an expert on domestic violence. She was the domestic violence project manager for Tulare County Family Services, and testified that domestic violence included physical, emotional, verbal, and sexual abuse. She explained that physical and emotional abuse often went hand-in-hand. The abusive partner will tell the other that she is worthless and no one wants her, and tear down her self-esteem.
She explained that verbal and emotional threats are very common forms of abuse. The primary motivation is to maintain power and control over the other partner. Compo-Blovich testified about the four phases in the cycle of violence: the tension-building phase, when the abused partner knows abuse will happen but not know when; the abusive stage, which can start with verbal abuse, escalate into physical abuse and, sometimes, culminate in murder; the remorse and guilt phase, when the abusive partner appeases the abused partner by promising not to do it again and enter counseling; and the final stage, the honeymoon phase, when the abusive partner will bring gifts and do things to make the abused partner happy, so that she believes things have changed, but the relationship will eventually return to the tension-building phase, and the cycle will start again.
Compo-Blovich testified that without intervention, the dynamic will repeat itself and the violence will escalate so that the tension-building phase shortens, the abusive stage lengthens, and the honeymoon stage may completely disappear. In addition, the abused partner is considered more at-risk during pregnancy because the abuser perceives the child as a threat to take attention away from him.
Compo-Blovich testified it was common for domestic violence victims to deny being attacked by the partner, or forget what happened during a confrontation. The abused partner may readily report threats and violence to the police, but later claim she never made the statements. The abuser might admit some of the conduct but deny everything else. Such a dynamic may occur because the couple is in the honeymoon stage, and the abused partner believes the abuser has changed. The abused partner may also feel fear and shame to admit what happened, and blame herself that the relationship is not working. An abused partner may go through eight prior instances of domestic violence before finally leaving the relationship.
Compo-Blovich testified an abused partner is more likely to be killed when they obtain a restraining order and leave the relationship, because the abusive partner has lost power and control and becomes angry that law enforcement is now involved. Compo-Blovich had not seen a situation where domestic violence was attributable to a physical ailment rather than a desire to maintain control over the partner. She testified that an individual's pain is not an excuse for committing acts of domestic violence, but instead was similar to the excuse that the abuser was drunk. Defense Evidence Appellant did not testify. Larkin Yandell, pastor of the Freewill Baptist Church in Visalia, testified he had known S.M. since she was a baby and watched her grow up. She was always responsible, truthful, and straightforward with Yandell.
Dr. Sanjay Chauhan, a neurologist, testified that he evaluated appellant for a work-related injury and to determine if he was eligible for worker's compensation benefits.FN2 He first saw appellant on July 17, 2002. Appellant stated he was a boom-pump systems operator, and that he was injured at work on November 1, 2001, when he slipped and twisted while loading a hose. Appellant further stated that he continued to work and perform physical labor from November 1, 2001 to June 2002. Dr. Chauhan testified it was not uncommon for someone to continue working through a back injury because it might initially seem minor but then become more painful.
FN2. After appellant's conviction in the first case, the court granted his motion for new trial based on defense counsel's failure to call either Pastor Yandell or Dr. Chauhan.
Dr. Chauhan testified that he ordered MRIs of appellant's back and neck in July 2002, which revealed a nine-millimeter disc protrusion in the thoracic spine, and a seven-millimeter protrusion in the lumbar spine. Both protrusions were serious and abnormal, whereas anything up to one or two millimeters were normal. Such protrusions typically cause pain in the back, and tingling and numbness in the legs.
Dr. Chauhan determined appellant was eligible for worker's compensation coverage, and recommended that he immediately see a neurosurgeon for consultation. He prescribed extra strength Vicodin, a ...