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Joseph Sherman v. Chief Probation Officer

August 5, 2011

JOSEPH SHERMAN,
PETITIONER,
v.
CHIEF PROBATION OFFICER, ET AL., RESPONDENTS.



The opinion of the court was delivered by: Terry J. Hatter, Jr.Senior United States District Judge

Order

The Court has considered the petition for habeas corpus, together with the moving and opposing papers.

On October 25, 2005, in the Sacramento County Superior Court, the Petitioner was found guilty by a jury of the following misdemeanors: (1) Engaging in disruptive conduct within the state capitol (Penal Code § 171F); (2) Twice willfully and knowingly resisting, delaying, or obstructing officers engaging in their duties (Penal Code § 148(a)); and (3) Contempt of court (Penal Code § 166(a)). The Petitioner was sentenced to 180 days in jail and three years probation. The Petitioner appealed the judgment to the appellate division of the Sacramento County Superior Court, but the appellate division found no arguable issues and affirmed judgment on November 16, 2006. On June 21, 2007, the California Court of Appeal denied Petitioner's writ of habeas corpus. On September 12, 2007, the California Supreme Court denied Petitioner's writ of habeas corpus. On October 23, 2007, Petitioner, in pro se, filed this federal writ of habeas corpus.

To obtain habeas relief under 28 U.S.C. § 2254(a), the Petitioner must be in custody pursuant to the judgment of a state court. A Petitioner is deemed "in custody" if he files his writ of habeas corpus during his period of probation. Chaker v. Crogan, 428 F.3d 1215, 1219 (9th Cir. 2005). The Petitioner filed his federal habeas petition on October 23, 2007, almost a year before his probation terminated on October 21, 2008. Further, the fact that the Petitioner is no longer on probation does not make his petition moot. Chaker, 428 F.3d at 1219. Accordingly, the Court will consider the merits of the petition.

A writ of habeas corpus may be granted only if the Petitioner's state court judgment was in violation of "clearly established federal law, as decided by the Supreme Court," or was based on an "unreasonable determination of the facts" based on the evidence before the state court. 28 U.S.C. § 2254(d)(1-2). Factual decisions made by the state court are presumed to be correct, and the Petitioner has the burden of proof to show the state court made a factual mistake by "clear and convincing evidence." 28 U.S.C. § 2254(e)(1).

Insufficiency of Evidence

The Petitioner's first claim is that "there was insufficient evidence to show probable cause in his convictions." This claim challenges the sufficiency of the evidence supporting the Petitioner's convictions.

On September 12, 2007, the California Supreme Court denied Petitioner's writ of habeas corpus, citing to In re: Lindley, 29 Cal. 2d 709, 117 P.2d 918 (1947). Pursuant to Lindley, "[a] petitioner who fails to exhaust sufficiency of evidence claims in his direct appeal and raises them instead in a subsequent state habeas petition has procedurally defaulted those claims as a matter of California law." Carter v. Giurbino, 385 F.3d 1194, 1197 (9th Cir. 2004). While the Petitioner raised this issue on his direct appeal to the appellate division of the Sacramento County Superior, he did not attempt to take a direct appeal to the California Court of Appeal or the California Supreme Court. Rather, the Petitioner filed only state habeas petitions with those two courts. Accordingly, the Petitioner failed to preserve this claim by not continuing his direct appeal beyond the appellate division of the Superior Court. The Petitioner could have filed an application asking the appellate division of the Superior Court to certify his direct appeal for transfer to the California Court of Appeal, pursuant to California Rules of Court 8.1005(b)(1). Accordingly, this claim was procedurally defaulted by the California Supreme Court.

The United States Supreme Court has ruled that a habeas claim is barred from federal habeas review if a state court has deemed the claim to have been procedurally defaulted under an independent state rule:

In all cases in which a prisoner has defaulted his federal claims in state court pursuant to an independent and adequate state procedural rule, federal habeas review of the claims is barred unless the prisoner can demonstrate cause for the default and actual prejudice as a result of the alleged violation of federal law, or demonstrate that failure to consider the claims will result in a miscarriage of justice.

Coleman v. Thompson, 501 U.S. 722, 750, 111 S. Ct. 2546, 2565, 115 L. Ed. 2d 640, 670 (1991). The Ninth Circuit has held that Lindley is an "independent and adequate state procedural bar" which prevents federal habeas review of claims procedurally defaulted by the California Supreme Court. Carter v. Giurbino, 385 F.3d 1194, 1198 (9th Cir. 2004). Accordingly, the Petitioner's insufficiency of evidence claim is barred unless he can show cause and prejudice, or demonstrate that there will be a miscarriage of justice if his claim is not reviewed.

"Cause" under the cause and prejudice test "must be something external to the [P]petitioner, something that cannot fairly be attributed to him ... ." Coleman 501 U.S. at 753, 111 S. Ct. at 2566, 115 L. Ed. 2d at 671. In this case, the Petitioner was representing himself, so his failure to appeal to the California Court of Appeal was entirely up to him. Therefore, there was no external cause.

The miscarriage of justice exception deals with actual innocence instead of legal innocence, and has been rejected in virtually every case. Casey v. Moore, 386 F.3d 896, 921, n.27 (9th Cir. 2004). To fall within this exception, the Petitioner's innocence must rest on supplemental and reliable evidence obtained post-trial. Casey, 386 F.3d at 921. While the Petitioner relies on videotape and audiotape evidence to show his actual innocence, those tapes were presented to the jury. Though the jury heard only one side of the audiotape, the Petitioner had access to ...


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