The opinion of the court was delivered by: Dennis L. Beck United States Magistrate Judge
FINDINGS AND RECOMMENDATION REGARDING PETITION FOR WRIT OF HABEAS CORPUS [Doc. 1]
Petitioner is a state prisoner proceeding pro se with a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254.
Following a jury trial in the Madera County Superior Court, Petitioner was convicted of failing to register as a sex offender. (Cal. Penal Code*fn1 § 290.) Petitioner admitted that he suffered four serious felony convictions: two counts of forcible rape in concert, a robbery, and a home burglary in 1990 (§ 667 subd. (b)-(I)), and served a prior prison term (§ 667.5 subd. (b)). Petitioner was sentenced to state prison for the aggregate term of 26 years to life.
Petitioner filed a timely appeal to the California Court of Appeal. On March 12, 2009, the appellate court affirmed the judgment.
On April 22, 2009, Petitioner filed a petition for review in the California Supreme Court, which was denied on June 24, 2009.
On August 28, 2009, Petitioner filed a petition for writ of habeas corpus in Madera County Superior Court. The petition was denied on September 3, 2009.
On September 22, 2009, Petitioner filed a petition in the California Court of Appeal. The petition was denied on January 13, 2010.
On February 11, 2010, Petitioner filed a petition in the California Supreme Court, which was denied on March 18, 2010.
Petitioner filed the instant federal petition for writ of habeas corpus on June 23, 2010. On December 2, 1010, Respondent filed an answer to the petition.*fn2 Petitioner did not filed a traverse.
[Petitioner] was released from state prison on Wednesday, May 24, 2006, on parole after a Madera County conviction of forcible rape in concert. He took an Amtrak train back to Madera and spent his first night after release with a friend. He could stay there one night, however, because the friend was moving.
Within 24 hours of his release, as required, [Petitioner] met with parole agent and officer of the day Gloria Chadwick for an initial interview. During such an initial interview, a parolee is informed of any requirements for registration with the police or the sheriff, depending upon the parolee's place of residence. During [Petitioner's] initial interview, on Thursday, May 25, 2006, Agent Chadwick marked "Yes" and circled "PC 290" on the intake form. Chadwick testified that this meant she personally advised [Petitioner] to register within five days under section 290. In the comments section of the form, Agent Chadwick noted: "To register, 290 PC by 5-31-06." Chadwick directed [Petitioner] to meet with his assigned parole agent, Todd Cregar, on Friday, May 26, 2006.
[Petitioner] spent the night of Thursday, May 25, 2006, at the Madera Rescue Mission (the Mission).
On May 26, 2006, [Petitioner] met with Agent Cregar and advised Cregar he was staying at the Mission. [Petitioner] had not yet registered with either the police or the sheriff. Cregar directed [Petitioner] to register and noted in his parole file that [Petitioner] must register by May 31, 2006. Cregar informed [Petitioner] that [Petitioner] could not remain at the Mission. It was too close to a school to allow for [Petitioner's] residence.
Cregar arranged for [Petitioner] to stay at the Casa Grande Motel (the Motel) in Madera. He drove [Petitioner] and another parolee to that motel and directed both to register with the Madera Sheriff's Department since the Motel was located in the County of Madera. [Petitioner] spent that night, Friday, May 26, 2006, at the Motel.
Cregar made a mandatory home visit within five days of placing [Petitioner] at the Motel, but [Petitioner] was gone from his assigned room and had taken all of his personal belongings with him. Cregar returned another day but [Petitioner] was still not present.
[Petitioner] had moved to the home of a cousin in the City of Madera on Saturday, May 27, 2006. He had done so, according to his testimony, because he had been kidnapped and threatened by certain people who came to this room at the Motel. He had escaped but remained afraid of them. He made no attempt to contact Agent Cregar, and he did not register. He remained at the home of his cousin until his arrest on Saturday, June 3, 2006. At that time, he had been out of prison and in Madera for 10 days, not counting the day of his release. He had passed six full working days, not including the day of his release, in Madera. These were Thursday and Friday, the 25th and 26th of May, as well as Tuesday through Friday, May 30th through June 2d, 2006. Monday, May 29th, had been the Memorial Day holiday.
[Petitioner] testified he had lived in Madera most of his life, his family lived in Madera, and he regularly returned to Madera upon his release on parole, which had occurred several times after his 1990 conviction for rape and burglary. [Petitioner] said he tried to register at the Madera Police Department on Friday, May 26, 2006, before his visit with Agent Cregar, but he was turned away because he did not have an appointment or any identification.
[Petitioner] acknowledged in his testimony that he was aware of his registration requirements. Evidence was presented that he previously had incurred parole violations for failing to comply with those requirements. (Lod. Doc. 3 at 2-4.)
Relief by way of a petition for writ of habeas corpus extends to a person in custody pursuant to the judgment of a state court if the custody is in violation of the Constitution or laws or treaties of the United States. 28 U.S.C. § 2254(a); 28 U.S.C. § 2241(c)(3); Williams v. Taylor, 529 U.S. 362, 375, 120 S.Ct. 1495, 1504, n.7 (2000). Petitioner asserts that he suffered violations of his rights as guaranteed by the U.S. Constitution. The challenged conviction arises out of the Madera County Superior Court, which is located within the jurisdiction of this Court.
28 U.S.C. § 2254(a); 2241(d).
On April 24, 1996, Congress enacted the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"), which applies to all petitions for writ of habeas corpus filed after its enactment. Lindh v. Murphy, 521 U.S. 320, 117 S.Ct. 2059, 2063 (1997; Jeffries v. Wood, 114 F.3d 1484, 1499 (9th Cir. 1997), cert. denied, 522 U.S. 1008, 118 S.Ct. 586 (1997) (quoting Drinkard v. Johnson, 97 F.3d 751, 769 (5th Cir.1996), cert. denied, 520 U.S. 1107, 117 S.Ct. 1114 (1997), overruled on other grounds by Lindh v. Murphy, 521 U.S. 320, 117 S.Ct. 2059 (1997) (holding AEDPA only applicable to cases filed after statute's enactment). The instant petition was filed after the enactment of the AEDPA and is therefore governed by its provisions.
Where a petitioner files his federal habeas petition after the effective date of the Anti-Terrorism and Effective Death Penalty Act ("AEDPA"), he can prevail only if he can show that the state court's adjudication of his 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). "Federal habeas relief may not be granted for claims subject to § 2254(d) unless it is shown that the earlier state court's decision "was contrary to" federal law then clearly established in the holdings of [the Supreme] Court." Harrington v. Richter, __ U.S. __, 131 S.Ct. 770, 785 (2011) (citing 28 U.S.C. § 2254(d)(1) and Williams v. Taylor, 539 U.S. 362, 412 (2000). Habeas relief is also available if the state court's decision "involved an unreasonable application" of clearly established federal law, or "was based on an unreasonable determination of the facts" in light of the record before the state court. Richter, 131 S.Ct. 785 (citing 28 U.S.C. § 2254(d)(1), (d)(2)). "[C]learly established ... as determined by" the Supreme Court "refers to the holdings, as opposed to the dicta, of th[at] Court's decisions as of the time of the relevant state-court decision." Williams v. Taylor, 529 U.S. at 412. Therefore, a "specific" legal rule may not be inferred from Supreme Court precedent, merely because such rule might be logical given that precedent. Rather, the Supreme Court case itself must have "squarely" established that specific legal rule. Richter, 131 S.Ct. at 786; Knowles v. Mirzayance, __ U.S. __, 129 S.Ct. 1411, 1419 (2009). Moreover, the Supreme Court itself must have applied the specific legal rule to the "context" in which the Petitioner's claim falls. Premo v. Moore, __ U.S. __, 131 S.Ct. 733, 737 (2011). "A state court's determination that a claim lacks merits precludes federal habeas relief so long as 'fairminded jurists could disagree' on the correctness of the state court's decision." Richter, 131 S.Ct. at 786.
"Factual determinations by state courts are presumed correct absent clear and convincing evidence to the contrary, § 2254(e)(1), and a decision adjudicated on the merits in a state court and based on a factual determination will not be overturned on factual grounds unless objectively unreasonable in light of the evidence presented in the state court proceedings, § 2254(d)(2)." Miller-El v. Cockrell, 537 U.S. 322, 340 (2003). Both subsections (d)(2) and (e)(1) of § 2254 apply to findings of historical or pure fact, not mixed questions of fact and law. SeeLambert v. Blodgett, 393 F.3d 943, 976-77 (2004).
Courts further review the last reasoned state court opinion. SeeYlst v. Nunnemaker, 501 U.S. 979, 803 (1991). However, "[w]here a state court's decision is unaccompanied by an explanation, the habeas petitioner's burden still must be met by showing there was no reasonable basis for the state court to deny relief." Richter, 131 S.Ct. at 784.
C. Insufficient Evidence to Support Conviction for Failing to Register as a Sex Offender Within Five Days of Establishing a Residence
Petitioner contends there was insufficient evidence that he failed to register within the meaning of California Penal Code section 290, requiring registration within five working days of establishing a residence. Because the California Supreme Court denied the claim without comment, this Court looks through to the reasoned decision of the California Court of Appeal, Fifth Appellate District. Ylst v. Nunnemaker, 501 U.S. 797, 804-05 & n. 3 (1991).
The law on insufficiency of the evidence claim is clearly established. The United States Supreme Court has held that when reviewing an insufficiency of the evidence claim on habeas, a federal court must determine whether, viewing the evidence and the inferences to be drawn from it in the light most favorable to the prosecution, any rational trier of fact could find the essential elements of the crime beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 319 (1979). Sufficiency claims are judged by the elements defined by state law. Id. at 324, n. 16.
The state appellate court found sufficient evidence to support Petitioner's conviction stating:
At the time of the alleged offense, section 290 stated in pertinent part: "(a)(1)(A) Every person [who is required to register], for the rest of his or her life while residing in California, . . . shall be required to register with the chief of police of the city in which he or she is residing, or the sheriff of the county if he or she is residing in an unincorporated area or city that has no police department . . . within five working days of coming into, or changing his or her residence within, any city, county, or city and county . . . ." (Stats. 2005, ch. 704, § 1, ch. 722, § 3.5, italics added.)
The trial court instructed the jury in CALCRIM No. 1170 (failure to register as sex offender) (Judicial Council of Cal. ...