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Steven Anthony Clemens v. Jim Macdonald

March 29, 2011

STEVEN ANTHONY CLEMENS, PETITIONER,
v.
JIM MACDONALD, WARDEN, LA PALMA CORRECTIONAL CENTER, MATTHEW CATE, SECRETARY, CALIFORNIA DEPARTMENT OF CORRECTIONS AND REHABILITATION,*FN1 RESPONDENTS.



SYLLABUS BY THE COURT

Proposed Claim 4 asserts denial of petitioner's right to a speedy trial in Case No. 05-2395. This claim is unrelated to either claim set forth in the original petition, and thus does not relate back to the petition for purposes of amendment.

The opinion of the court was delivered by: Kendall J. Newman United States Magistrate Judge

ORDER

I. INTRODUCTION

Petitioner is a California state prisoner, currently incarcerated in Arizona.

Petitioner is proceeding in forma pauperis and without counsel with a petition for writ of habeas corpus filed pursuant to 28 U.S.C. § 2254. The petition, filed June 9, 2008, challenges petitioner's 2006 conviction for kidnapping and other offenses, for which he is serving a ten-year prison sentence. On June 28, 2010, after the merits of the petition were fully briefed (respondent filed an answer on March 5, 2009, petitioner filed his traverse on April 8, 2009), petitioner filed a motion for leave to amend the petition. The court ordered additional briefing, which has now been completed.

Both parties have consented to the jurisdiction of the magistrate judge for all purposes, pursuant to 28 U.S.C. § 636(c) and Local Rule 305(a). (Dkt. Nos. 10, 14, 15.)

After careful consideration of the record and the parties' briefing, the undersigned denies petitioner's motion for leave to file an amended habeas petition, and denies the original petition.

II. LEGAL STANDARDS

An application for a writ of habeas corpus by a person in custody under a 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). A federal writ is not available for alleged error in the interpretation or application of state law. See Estelle v. McGuire, 502 U.S. 62, 67-68 (1991); Park v. California, 202 F.3d 1146, 1149 (9th Cir. 2000).

Under the Antiterrorism and Effective Death Penalty Act ("AEDPA"), federal habeas corpus relief 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).

Under section 2254(d)(1), a state court decision is "contrary to" clearly established United States Supreme Court precedents if it applies a rule that contradicts the governing law set forth in Supreme Court cases, or if it confronts a set of facts that are materially indistinguishable from a decision of the Supreme Court and nevertheless arrives at different result. Early v. Packer, 537 U.S. 3, 7 (2002) (citing Williams v. Taylor, 529 U.S. 362, 405-06 (2000)).

Under the "unreasonable application" clause of section 2254(d)(1), a federal habeas court may grant the writ if the state court identifies the correct governing legal principle from the Supreme Court's decisions, but unreasonably applies that principle to the facts of the prisoner's case. Williams, 529 U.S. at 413. A federal habeas court "may not issue the writ simply because that court concludes in its independent judgment that the relevant state-court decision applied clearly established federal law erroneously or incorrectly. Rather, that application must also be unreasonable." Id. at 412; see also Lockyer v. Andrade, 538 U.S. 63, 75 (2003) (it is "not enough that a federal habeas court, in its independent review of the legal question, is left with a 'firm conviction' that the state court was 'erroneous.'") (internal citations omitted). "A state court's determination that a claim lacks merit precludes federal habeas relief so long as 'fairminded jurists could disagree' on the correctness of the state court's decision." Harrington v. Richter, 131 S. Ct. 770, 786 (Jan. 19, 2011).

The court looks to the last reasoned state court decision as the basis for the state court judgment. Avila v. Galaza, 297 F.3d 911, 918 (9th Cir. 2002). If there is no reasoned decision, "and the state court has denied relief, it may be presumed that the state court adjudicated the claim on the merits in the absence of any indication or state-law procedural principles to the contrary." Harrington, 131 S. Ct. at 784-85. That presumption may be overcome by a showing that "there is reason to think some other explanation for the state court's decision is more likely." Id. at 785 (citing Ylst v. Nunnemaker, 501 U.S. 797, 803 (1991)).

Where the state court reaches a decision on the merits but provides no reasoning to support its conclusion, the federal court conducts an independent review of the record. "Independent review of the record is not de novo review of the constitutional issue, but rather, the only method by which we can determine whether a silent state court decision is objectively unreasonable." Himes v. Thompson, 336 F.3d 848, 853 (9th Cir. 2003). Where no reasoned decision is available, the habeas petitioner has the burden of "showing there was no reasonable basis for the state court to deny relief." Harrington, 131 S. Ct. at 784. "[A] habeas court must determine what arguments or theories supported or, . . . could have supported, the state court's decision; and then it must ask whether it is possible fairminded jurists could disagree that those arguments or theories are inconsistent with the holding in a prior decision of this Court." Id. at 786.

III. BACKGROUND

Petitioner was tried pursuant to a consolidated information combining Superior Court Case Numbers 05-2395 and 06-534. (Clerk's Transcript ("CT") at 238-43.) The first-filed complaint, in Case No. 05-2395, was premised on petitioner's alleged conduct on December 22, 2005. (CT at 1-5, 75-80.) The second-filed complaint, in Case No. 06-534, was premised on petitioner's alleged conduct on an unidentified date in November 2005. (Id. at 89-93.) Both cases involved the same alleged victim, "L.S." Statements made by L.S. pursuant to the investigation of the December 22, 2005 incident led to the charges based upon the November 2005 conduct. The prosecution's motion to consolidate these cases, filed March 9, 2006 (id. at 99-103), was granted on March 20, 2006 (id. at 193), and the consolidated information was filed on March 21, 2006 (id. at 238-43). Nine counts were alleged in the consolidated information.*fn2

The September 10, 2007 opinion of the California Court of Appeal (Third Appellate District) contains a procedural and factual summary of petitioner's conviction and sentence. After independently reviewing the record, the undersigned finds the summary to be accurate and adopts it below:

[On March 29, 2006,] [a] jury convicted defendant Steven Anthony Clemens of one count of felony kidnapping (Pen. Code, § 207, subd. (a)),*fn3 one count of corporal injury to a cohabitant (§ 273.5, subd. (a)), one count of sexual battery by restraint (§ 243.4, subd.(a)), and one count of misdemeanor vandalism (§ 594, subd. (a)).*fn4 Defendant appeals from a judgment [entered May 25, 2006] sentencing him to state prison for an aggregate term of 10 years.*fn5

FACTUAL BACKGROUND . . .

On December 22, 2005, defendant and the victim, L.S., were at defendant's home in Dunsmuir, where they had previously lived together. Both defendant and L.S. testified that there was an altercation between them that evening. However, that is where the similarity in their testimony ends.

L.S. testified that she attempted to get away from defendant by getting into her car and locking the doors. Enraged, defendant shattered one of the car windows, pulled her out of the car, and forced her into the house. When she got into the house, she picked up a cell phone and started pushing the speed dial buttons to get help. L.S. then recalled defendant "pulling" her, at which point she blacked out. The next thing she remembered was awakening on the ground with her head bleeding. While there were many "blank spots" in her memory, L.S. insisted that defendant's act of pulling her caused the injury. She denied that she tripped or fainted.

L.S. told interviewing officers on the night of the incident that defendant pulled her to the ground, that he pinned her down by sitting on top of her, and that she could feel blood rushing out of her head. She thought she might have hit her head on a coffee table, and denied that she injured herself by tripping or falling. Blood was found on the coffee table and a deep blood stain was found on the rug nearby. There was no blood anywhere else in the house. L.S.'s head wound required seven stitches to close. Taking the stand on his own behalf, defendant testified that the car window was broken in an automobile accident. He also denied dragging L.S. into the house. He claimed that he was playing music on the stereo when L.S. fell. He also stated that L.S. had stumbled over a rocking chair as she attacked him, causing her to hit her head on a bookshelf over the wood stove.*fn6 Defendant was impeached by his own statement to officers who arrived at the scene shortly after the incident. Defendant told the officers that L.S. had hit herself on the head with a board in order to get him into trouble, because he was breaking up with her.

The jury also heard evidence about a previous incident in November 2005 when defendant, who had been drinking, climbed on top of L.S. and forced her to have sex with him, while putting his hands around her throat and choking her.

People v. Clemens, 2007 WL 2584998, *1 (Cal. App. 2007) (also set forth in Lodged Document ("Ldgd. Doc.") No. 6).*fn7

In his appeal, filed October 10, 2006, petitioner asserted the following two claims:

(1) that there was insufficient evidence to support petitioner's corporal injury to a cohabitant conviction (§ 273.5); and (2) that the trial court committed error under Cunningham v. California, 549 U.S. 270 (2007), by imposing the upper sentencing term on petitioner's kidnapping conviction (§ 207). (Ldgd. Doc. No. 1.)

In the reasoned decision quoted above, and discussed further below, the California Court of Appeal, on September 10, 2007, rejected each of petitioner's contentions. (Ldgd. Doc. No. 6 (App. Ct. Case No. CO52936, reviewing Super. Ct. Case No. 05-2395).) On October 16, 2007, petitioner raised the same two issues in a petition for review filed in the California Supreme Court. (Ldgd. Doc. No. 8.) On November 28, 2007, the California Supreme Court summarily denied review.*fn8 (Ldgd. Doc. No. 9.)

Petitioner filed the instant federal petition for writ of habeas corpus on June 9, 2008, again asserting both claims presented on direct review to the Court of Appeal and the California Supreme Court. Respondent concedes that both claims raised in the instant petition were timely exhausted in the state courts. (Dkt. No. 16 at 3.)

Petitioner now seeks to amend his federal habeas petition to add eight additional claims raised in multiple petitions for writs of habeas corpus subsequently filed in the state courts. (Dkt. No. 30 (Motion).) Respondent contends that petitioner is precluded from making any amendment to his petition, based on the statute of limitations and petitioner's failure to exhaust state court remedies. (Dkt. No. 39 (Opposition).) Respondent has assisted the court in identifying and providing copies of each of the underlying petitions. (See Dkt. No. 39 at 6-13, and additional lodged documents (Dkt. No. 40).) Pursuant to order of this court (Dkt. No. 43), respondent personally served petitioner with copies of the newly lodged documents (Dkt. No.44), and petitioner filed a reply to respondent's opposition to petitioner's motion to amend (Dkt. No. 46 (Reply)).

IV. DISCUSSION

A. Motion for Appointment of Counsel

Petitioner seeks, without further explanation, appointment of counsel to assist him in the matters now pending before the court. (Dkt. No. 30 at 22.)*fn9 There exists no absolute right to appointment of counsel in habeas proceedings. See Nevius v. Sumner, 105 F.3d 453, 460 (9th Cir. 1996). However, 18 U.S.C. § 3006A authorizes the appointment of counsel at any stage of a habeas proceeding "if the interests of justice so require." See Rule 8(c), Fed. R. Governing § 2254 Cases. "Indigent state prisoners applying for habeas corpus relief are not entitled to appointed counsel unless the circumstances of a particular case indicate that appointed counsel is necessary to prevent due process violations." Chaney v. Lewis, 801 F.2d 1191, 1196 (9th Cir. 1986) (citations omitted). In the present case, the court finds that neither the interests of justice nor independent due process considerations require the appointment of counsel at this time. Accordingly, petitioner's motion is denied.

B. Motion for Leave to File Amended Habeas Petition

Petitioner moves to amend his federal habeas petition to add the following claims:

(1) petitioner's misdemeanor vandalism conviction was not supported by sufficient evidence; (2) petitioner's sexual battery conviction was not supported by sufficient evidence; (3) the prosecutor engaged in misconduct by threatening potential defense witnesses and misrepresenting facts in his closing argument; (4) petitioner was denied a speedy trial; (5) petitioner's kidnapping conviction was not supported by sufficient evidence; (6) the trial court improperly instructed the jury on the asportation requirement for kidnapping; (7) the prosecution committed Brady error by failing to disclose to petitioner the audiotape and transcript of the prosecutor's interview with the victim; and (8) appellate counsel provided ineffective assistance by failing to investigate defense counsel's alleged errors at trial.*fn10 (See Motion (Dkt. No. 30 at 23-30), and Reply (Dkt. No. 46 at 2).)

Respondent opposes petitioner's motion to amend based on the contention that all of petitioner's newly alleged claims are time-barred and, moreover, that proposed Claims 5 and 7 were not properly exhausted in the state courts.

For the following reasons, the court finds that petitioner's newly proposed claims were untimely filed in this court and do not relate back to the filing date of petitioner's original petition.

1. Chronology

The court's analysis requires the following chronology of petitioner's state habeas petitions and other pertinent dates: November 28, 2007: California Supreme Court denied review of petitioner's direct appeal. June 9, 2008: Petitioner filed the instant federal petition for writ of habeas corpus (Dkt. No. 1), claiming that insufficient evidence supportspetitioner's corporal-injury-to-a-cohabitant conviction (Section 273.5 ), and that the trial court committed Cunningham error by imposing the upper sentencing term on petitioner's kidnapping conviction (Section207).

First State Petition: Super. Ct. Case No. 08-1126

July 17, 2008:*fn11 Petition for writ of habeas corpus filed in the Superior Court,*fn12 alleging failure of prosecution to disclose audiotape and transcript of the District Attorney's ("DA") March 9, 2006 interview of the victim (Ldgd. Doc. No.12);

August 4, 2008: Petition summarily denied by Superior Court (Ldgd. Doc. No. 13). Second Petition: App. Ct. Case No. CO59893 September 9, 2008: Petition for writ of habeas corpus filed in the Court of Appeal,*fn13 claiming Brady error based on the alleged failure of the prosecution to disclose information gathered by the first-arriving police officer, the emergency room doctor, and the DA's interview of the victim; also claiming that appellate counsel provided ineffective assistance by failing to investigate these alleged errors by trial counsel (Ldgd. Doc. No. 14 (duplicate at Ldgd. Doc. No. 10));

September 18, 2008: Petition summarily denied by Court of Appeal (Ldgd. Doc. No. 15 (duplicate at Ldgd. Doc. No. 11)).

Third Petition: Super. Ct. Case No. 08-1898

November 17, 2008: Petition for writ of habeas corpus filed in the Superior Court, alleging that the prosecutor engaged in misconduct by threatening potential defense witnesses and misrepresenting facts in his closing argument; that trial counsel provided ineffective assistance; that appellate counsel provided ineffective assistance by failing to reasonably investigate trial counsel's alleged errors at trial; and that the Court of Appeal violated petitioner's due process rights by failing to set forth petitioner's account of the underlying facts. (Ldgd. Doc. No. 16);

December 8, 2008: Petition summarily denied by Superior Court (Ldgd. Doc. No. 17). Fourth Petition: App. Ct. Case No. CO60860 January 13, 2009: Petition for writ of habeas corpus filed in the Court of Appeal, attaching same brief presented in the Superior Court Case No. 08-1898 (Ldgd. Doc. No. 18);

January 22, 2009: Petition summarily denied by Court of Appeal (Ldgd. Doc. No. 19). Fifth Petition: Cal. Supreme Court Case No. S170554 February 2, 2009: Petition for review filed in the California Supreme Court, challenging Court of Appeal's denial of Case No. CO60860 (Ldgd. Doc. No. 20); March 25, 2009: Petition summarily denied by the California Supreme Court (Ldgd. Doc. No. 21).

Sixth Petition: Cal. Supreme Court Case No. S170534

February 10, 2009: Petition for writ of habeas corpus filed in the California Supreme Court, claiming that appellate counsel provided ineffective assistance by failing to investigate trial counsel's alleged errors at trial, and that the prosecution committed Brady error by failing to disclose information gathered by the first-arriving police officer, the emergency room doctor, and the DA's interview of the victim (Ldgd. Doc. No. 22);

August 12, 2009: Petition denied by the California Supreme Court, citing In re Clark (1993) 5 Cal. 4th 750 (Ldgd. Doc. No. 23).

Seventh Petition: Super. Ct. Case No. 09-723

April 25, 2009: Petition for writ of habeas corpus filed in the Superior Court, claiming that petitioner was denied a speedy trial and that the kidnapping conviction was not supported by sufficient evidence (Ldgd. Doc. No. 24);

May 18, 2009: Petition summarily denied by Superior Court (Ldgd. Doc. No. 25). Eighth Petition: App. Ct. Case No. CO61957 April 30, 2009: Petition for writ of habeas corpus filed in the Court of Appeal, based on the claims that the misdemeanor vandalism conviction was not supported by sufficient evidence; that the sexual battery conviction was not supported by sufficient evidence; and that the prosecutor engaged in misconduct by threatening potential defense witnesses and misrepresenting facts in his closing argument (Ldgd. Doc. No.26);

June 11, 2009: Petition summarily denied by the Court of Appeal (Ldgd. Doc. No. 27). Ninth Petition: Cal. Supreme Court Case No. S173961 June 17, 2009: Petition for review filed in the California Supreme Court, challenging Court of Appeal's denial of Case No. CO61957 (Ldgd. Doc. No. 28); August 12, 2009: Petition summarily denied by the California Supreme Court (Ldgd. Doc.No. 29).

Tenth Petition: App. Ct. Case No. CO62043

May 25, 2009: Petition for writ of habeas corpus filed in the Court of Appeal, in which petitioner claimed that he was denied a speedy trial and that his kidnapping conviction was not supported by sufficient evidence (Ldgd. Doc. No. 30);

June 11, 2009: Petition summarily denied by the Court of Appeal (Ldgd. Doc. No. 31). Eleventh Petition: Cal. Supreme Court Case No. S174740 July 10, 2009: Petition for writ of habeas corpus filed in the California Supreme Court, claiming that the misdemeanor vandalism conviction was not supported by sufficient evidence; the sexual battery conviction was not supported by sufficient evidence; and the prosecutor engaged in misconduct by threatening potential defense witnesses and misrepresenting the facts (Ldgd. Doc. No. 32);

December 2, 2009: Petition denied by the California Supreme Court, citing In re Clark (1993) 5 Cal. ...


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