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Charlie Chong Thao v. Swarthouth

June 24, 2011

CHARLIE CHONG THAO, PETITIONER,
v.
SWARTHOUTH, WARDEN,
RESPONDENT.



ORDER & FINDINGS AND RECOMMENDATIONS

Petitioner is a state prisoner proceeding pro se with a petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. The petition before the court challenges petitioner's judgment of conviction entered in the Sacramento County Superior Court in 2007 for residential burglary, commercial burglary, robbery, kidnapping for the purpose of robbery, false imprisonment, and criminal threats. Petitioner seeks federal habeas relief on the grounds that (1) his trial counsel rendered ineffective assistance by failing to investigate and prepare for trial, specifically by failing to (a) make a discovery motion; (b) prepare jury instructions; (c) hire an investigator or conduct an independent investigation; (d) consult with a "facial expressionist expert"; (e) have an investigator meet with petitioner; (f) object to the admission of petitioner's confession based on a Miranda violation; (g) seek to exclude petitioner's confession based on coercion; (h) call defense witnesses to testify about petitioner's state of mind; (i) call the county jail psychiatric staff; and (j) obtain a psychiatric evaluation or consult with a psychiatrist; (2) his appellate counsel rendered ineffective assistance by failing to raise the ineffective assistance of trial counsel claims listed above on appeal; and (3) that he is actually innocent. Petitioner also seeks an evidentiary hearing on Claims 1 and 2.

Upon careful consideration of the record and the applicable law, the undersigned will recommend that petitioner's application for habeas corpus relief be denied, in part due to his failure to exhaust all of his claims in state court and in part on the merits. The undersigned will also deny petitioner's request for an evidentiary hearing.

PROCEDURAL BACKGROUND

On November 15, 2007, a Sacramento County Superior Court jury found petitioner guilty of residential burglary and commercial burglary in violation of California Penal Code § 459*fn1 ; robbery in violation of § 211; kidnapping for the purpose of robbery in violation of § 209(b)(1); false imprisonment in violation of § 236; and making criminal threats in violation of § 422. (Lod. Doc. 1 (hereinafter "CT") at 169-170.) On December 14, 2007, petitioner was sentenced to life in state prison with the possibility of parole, plus seven years. (CT 227-230.)

Petitioner appealed his judgment of conviction to the California Court of Appeal for the Third Appellate District. On October 21, 2008, in a reasoned opinion the state appellate court reduced petitioner's sentence to life in prison with the possibility of parole, plus four years and eight months, but otherwise affirmed the judgment. (Lod. Doc. 6 at 11.) Petitioner then filed a petition for review with the California Supreme Court. (Lod. Doc. 7.) On December 23, 2008, the California Supreme Court summarily denied that petition. (Lod. Doc. 8.)

On December 28, 2009, petitioner filed his original federal habeas petition in this court. (Doc. No. 1.) On January 13, 2010, petitioner filed a habeas corpus petition in the Sacramento County Superior Court, which was denied on March 2, 2010. (Lod. Docs. 9, 10.)

On March 18, 2010, the magistrate judge previously assigned to this case recommended that the petition be dismissed on procedural grounds. (Doc. No. 7.) On April 6, 2010, petitioner filed a habeas corpus petition in the California Supreme Court. (Lod. Doc. 11.) On May 11, 2010, the previously assigned magistrate judge vacated his earlier findings and recommendations. (Doc. No. 9). By order dated June 22, 2010, this case was reassigned to the undersigned magistrate judge.*fn2 (Doc. No. 11.) On October 6, 2010, the undersigned dismissed the original habeas petition and granted petitioner leave to file an amended petition. (Doc. No. 13.) On October 13, 2010, the California Supreme Court summarily denied petitioner's habeas corpus petition. (Lod. Doc. 12.) On November 23, 2010, the undersigned issued findings and recommendations recommending that the federal habeas petition be dismissed without prejudice on procedural grounds. (Doc. No. 16.)

On December 7, 2010, petitioner filed his first amended petition (hereinafter "FAP"). (Doc. 18.) On January 13, 2011, the undersigned vacated the prior findings and recommendations and ordered a response to the FAP. (Doc. No. 19.) Respondent filed an answer on March 14, 2011. (Doc. No. 22.) Petitioner filed a traverse on April 18, 2011. (Doc. No. 27.)

FACTUAL BACKGROUND

In its unpublished memorandum and opinion, shortening petitioner's sentence as described above but in all other respects affirming his judgment of conviction on appeal, the California Court of Appeal for the Third Appellate District provided the following factual summary:

In November 2006, L.P., branch manager and vice-president of a bank in Elk Grove, California, lived with her husband and daughter in the City of Galt.

On the morning of November 3, 2006, L.P.'s husband left the house to go to work at approximately 6:00 a.m. The couple's daughter left for school at approximately 7:10 a.m. As L.P. prepared for work, still wearing her robe and slippers, she heard the doorbell ring. She looked through the peephole but did not recognize the person standing there. When L.P. opened the door, defendant pointed a gun at her and entered the home. L.P. screamed. Defendant told her to be quiet and said, "Give me your money." L.P. gave defendant $75 that was sitting on the kitchen counter, and $40 to $50 from her purse. She told defendant that was all the money she had. He said, "Let's go to the bank." When L.P. said the bank was closed, defendant said, "You have the key. Get the key now." L.P. retrieved her keys from the bedroom and got into the back seat of defendant's car as instructed. Defendant climbed into the driver's seat and placed the gun on his lap. Defendant drove to the bank where L.P. worked. During the drive,

L.P. recognized defendant as a customer of the bank and her daughter's former tutor. When they arrived at the bank, defendant donned a black mask. L.P. unlocked the back door and entered the bank with defendant following behind her. L.P. silenced the alarm and opened the vault door. Unable to access the vault money without a second key, L.P. opened the safe deposit box containing her till money instead and gave defendant the contents -approximately $5,000, including $35 in "bait" money. FN2 Defendant said, "That's not enough. I want more." Although L.P. kept telling defendant she could not open the file cabinet to access the cash in the vault, defendant insisted she had a key. Finally,

L.P. suggested that defendant shoot open the box containing the second access key. Defendant grabbed a tool and pried the lock box open. L.P. opened the cabinet and placed the cash, including "bait" money and an electronic tracking device, into defendant's backpack. Defendant said, "Let's go," and they left the bank. As she exited the bank, L.P. reset the alarm and locked the doors. Defendant ordered L.P. back into the car, and then climbed into the driver's seat. He laid the gun on his lap and told L.P. he was taking her home.

FN2. L.P. described "bait" money as bills from which the serial numbers have been recorded for tracking purposes in the event of a robbery.

Defendant initially headed in the direction of L.P.'s home. During the drive, L.P.'s cell phone rang twice, and defendant took it from her. As he neared Galt, defendant turned away from L.P.'s home and down a rural road unfamiliar to L.P. Defendant stopped the car and told L.P. not to identify him, threatening that he and some of his friends would hurt L.P. and her family if she did. When L.P. promised not to tell, he told her to get out of the car and told her to keep walking and not to stop to talk to anyone. L.P. got out of the car and started walking. Defendant drove away, but returned once, reminded her to "do what he said and keep walking," and then drove off. As L.P. walked towards her home, two people stopped and offered help. L.P. declined, fearing defendant would follow through on his threats. As she neared her home, L.P.'s husband, driving by on his way to check on her after hearing the bank had been robbed, stopped and picked her up. They drove back home, notified police and then drove to the Galt Police Department to report the incident.

Bank surveillance cameras recorded the defendant and L.P. in the bank that morning. L.P. provided police with a description of defendant and his vehicle and informed them he had worked at the Elk Grove Learning Center and had tutored their daughter. Police obtained defendant's name and address from the Learning Center, but were unable to find defendant in Sacramento County.

The next day, defendant was apprehended in San Francisco following a high-speed chase through the city. Defendant had in his possession the backpack used in the robbery, along with over $22,000 in cash. Police later recovered over $55,700 in cash, the electronic tracking device and the "bait" money, along with the pants, ski mask and replica pistol used by defendant in the robbery. Defendant admitted L.P.'s version of events, and told police he planned the crimes and acted alone. FN3 FN3. At trial, defendant testified he and L.P. planned the bank robbery and agreed to meet in San Francisco the next day to split the proceeds.

By complaint, deemed to be the information, defendant was charged with first degree residential burglary (count one), first degree robbery (count two), kidnapping for the purpose of robbery (count three), second degree commercial burglary (count four), second degree robbery (count five), false imprisonment (count six) and criminal threats (count seven).

Defendant was tried by a jury and found guilty on all counts. The court imposed a sentence of life with the possibility of parole on count three, plus a consecutive aggregate term of seven years comprised of the middle term of four years on count one; one year four months (one-third the middle term) on count two; the middle term of two years on count four; one year (one-third the middle term) on count five; the middle term of two years on count six; and eight months (one-third the middle term) on count seven. The court stayed execution of the sentences for second degree commercial burglary (count four) and false imprisonment (count six) pursuant to section 654. (Lod. Doc. 6 at 1-5)*fn3

ANALYSIS

I. Standards of Review

Applicable to Habeas Corpus Claims

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 Wilson v. Corcoran, 562 U.S.___, ___, 131 S. Ct. 13, 16 (2010); Estelle v. McGuire, 502 U.S. 62, 67-68 (1991); Park v. California, 202 F.3d 1146, 1149 (9th Cir. 2000).

Title 28 U.S.C. § 2254(d) sets forth the following standards for granting federal habeas corpus relief:

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 ...


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