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Jerrick Renne Bland v. Michael Evans

August 16, 2011


The opinion of the court was delivered by: Timothy J Bommer United States Magistrate Judge



Petitioner is a state prisoner proceeding pro se with an application for writ of habeas corpus pursuant to 28 U.S.C. § 2254. Pursuant to 28 U.S.C. § 636(c)(1), Petitioner consented in January 2010 to have a United States Magistrate Judge conduct all further proceedings in this case. Respondent consented in February 2010. After a jury trial, Petitioner was convicted of inflicting corporal injury and battery causing great bodily injury. Furthermore, the jury found as true that Petitioner personally inflicted great bodily injury under circumstances involving domestic violence. Petitioner was sentenced to six years imprisonment. Petitioner raises two claims in this federal habeas petition; specifically: (1) the trial court violated his due process rights when it permitted the impeachment of his father with his prior domestic violence convictions ("Claim I"); and (2) the trial court violated Petitioner's equal protection rights when it denied Petitioner probation contrary to the probation and prosecutor's recommendations ("Claim II"). For the following reasons, the federal habeas petition will be denied.


The victim recanted at trial, but the evidence, including her pretrial statements, showed defendant beat her severely.

The victim, age 21 at the time of trial, lived with defendant and their daughter, who was almost two years old. The victim testified she loved defendant. On the morning of July 14, 2007, she went to the hospital by ambulance, but she testified she was drunk and did not know if she called 911. She had been at a club the night before with her "brother, an ex-co-worker and his wife." Although she was only 20 years old at the time, her sister let her into the club, where she stayed until closing time, then her brother and his wife took her home. At the hospital she learned she had "fractured ribs" and chipped teeth. She received those injuries before her brother took her home. She testified she was "absolutely positive" she was not injured at home because she was home alone. She claimed she must have been hurt between the club and the club parking lot by a woman, or else her brother would have intervened.

On cross-examination she changed her testimony, stating "there was some people from there that was from another gang," and when the club closed "the girls was ready to fight me, and my brother was trying to get us out of the club." Her assailants were women led by "Tay Tay," "from a gang called the Heights." The victim never told this story before for fear of retaliation.

In a 911 call and at the hospital, the victim said she had been injured by her "baby's daddy," although she said his name was Tyrell Johnson. She testified the voice on the 911 call was not hers, but the caller used her name, gave her address and telephone number to the operator, described having hurt ribs and being 20 years old, and said her child was at her grandmother's, which is where the victim's child was that night, and was able to answer the operator's questions, that is, was not so drunk as to be unable to carry on a conversation. The victim testified she did not know anyone named Tyrell Johnson.

A Sacramento County deputy sheriff testified he responded to the victim's apartment at about 6:30 that morning, and "It was pretty obvious that there had been a fight. The apartment was just trashed." The victim was not cooperative, but "stated that she was sleeping and she was woke[n] up by her boyfriend who was assaulting her by punching her with a closed fist." She said his name was "Jerrick Gray." Eric Grays is defendant's father ("Grays" being his father's last name). Another deputy sheriff testified that that evening, at the hospital, the victim told him that early that morning, "her boyfriend and the father of her child named Jerrick Bland came home and began assaulting her." She told this officer that she first called her father, then called 911. She described her assailant to the officer, and in her testimony she conceded this accurately described defendant.

The victim refused to allow photographs to be taken of her injuries. When a victim advocate called the victim and read out statements attributed to her, she claimed not to know what happened and hung up the telephone.

According to the emergency room doctor, medical records showed the victim arrived at the hospital around 7:30 that morning. No alcohol was found in a sample taken from her at 11:25 that morning. She had "a closed head injury with concussion, left rib fractures, . . . a collapsed lung -- and then what we term 'blunt abdominal trauma.'" all of which was attributed in the records to "domestic violence." The victim denied telling anyone that she was assaulted by her "baby's daddy," as the hospital records stated.

The victim testified she was incoherent at the hospital because of morphine she was given, but the emergency room doctor testified she was "oriented" and able to interact with staff, and that she had been given "probably the smallest dose" of morphine for an adult, only two milligrams.

Defendant and his father appeared at the jail that evening, and his father said they were there so defendant could turn himself in "on outstanding domestic violence warrants." When told defendant was not wanted, defendant's father said "No, my son beat on the mother of his baby this morning" and defendant said "Yeah. I need to turn myself in for the domestic violence I did this morning." Neither of them ever referred to allegations of violence. Defendant's father did mention he "was concerned with retaliation" from the victim's brothers.

Defendant's father testified and denied he ever said defendant had assaulted the victim, he only said defendant had allegedly assaulted the victim. Grays was impeached with three prior felony convictions for domestic violence. Based on his own experience, Grays testified he knew such cases are treated seriously by the police. Grays testified the victim's father and brothers had vandalized his car because of the alleged assault, explaining he took his son to the police station to avoid further conflict with the victim's family. He testified defendant played football "with North Valley [Lions], [a] semi-pro team." Grays testified he and defendant waited at the police station for two hours until the police concluded defendant should be arrested.

We pause to note that defendant's father's version of events conflicted with the victim's version. She testified her brother had been with her when she was attacked by women outside a bar and he then took her home. If that were true, her brother would have known defendant did not hurt her and her family would have had no reason to retaliate against defendant or his family.

Defendant's nephew testified he was with defendant the day before he was arrested, and woke up with him at their "auntie's house" at around 8:00 that morning, so they could go to Raging Waters. He first told this story to an investigator a couple of months before trial, about nine months after the events described.

Defendant testified he had been playing semi-pro football the day before, then went to a barbecue with his nephew and stayed overnight at his aunt's house, now owned by his cousin. The next morning they were going to Raging Waters, so he went to his apartment between 8:00 and 9:00 a.m., to get a towel. He saw the couch was overturned and the victim was not home, but claimed he was not worried "too much," although he did try to call the victim. His father later called to say defendant was wanted by the police, and told him "I been there before" and it was best to turn himself in. Defendant denied assaulting the victim and denied telling the police he had.

(Slip Op. at p. 2-6 (emphasis in original).)


After Petitioner was convicted and sentenced, he appealed to the California Court of Appeal and raised the issues he raises in his federal habeas petition. The California Court of Appeal affirmed the judgment on June 3, 2009. Petitioner's petition for review to the California Supreme Court was summarily denied on August 12, 2009. Petitioner filed his federal habeas petition on January 25, 2010. Respondent filed his answer on May 21, 2010.*fn2 Respondent filed a traverse on October 5, 2010.


An application for writ of habeas corpus by a person in custody under judgment of a state court can only be granted for violations of the Constitution or laws of the United States. See 28 U.S.C. § 2254(a); see also Peltier v. Wright, 15 F.3d 860, 861 (9th Cir. 1994); Middleton v. Cupp, 768 F.2d 1083, 1085 (9th Cir. 1985) (citing Engle v. Isaac, 456 U.S. 107, 119 (1982)).

Petitioner filed this petition for writ of habeas corpus after April 24, 1996, thus the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA") applies. See Lindh v. Murphy, 521 U.S. 320, 326 (1997). Under AEDPA, federal habeas corpus relief is not available for any claim decided on the merits in the 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 state court. See 28 U.S.C. 2254(d).

As a threshold matter, this Court must "first decide what constitutes 'clearly established Federal law, as determined by the Supreme Court of the United States.'" Lockyer v. Andrade, 538 U.S. 63, 71 (2003) (quoting 28 U.S.C. § 2254(d)(1)). "'[C]learly established federal law' under § 2254(d)(1) is the governing legal principle or principles set forth by the Supreme Court at the time the state court renders its decision.'" Id. (citations omitted). Under the unreasonable application clause, a federal habeas court making the unreasonable application inquiry should ask whether the state court's application of clearly established federal law was "objectively unreasonable." See Williams v. Taylor, 529 U.S. 362, 409 (2000). Thus, "a federal court may not issue the writ simply because the 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 411.

Although only Supreme Court law is binding on the states, Ninth Circuit precedent remains relevant persuasive authority in determining whether a state court decision is an objectively unreasonable application of clearly established federal law. See Clark v. Murphy, 331 F.3d 1062, 1070 (9th Cir. 2003) ("While only the Supreme Court's precedents are binding . . . and only those precedents need be reasonably applied, we may look for guidance to circuit precedents."). In this case, the last reasoned court decision was from the California Court of Appeal on direct appeal.


A. Claim I

In Claim I, Petitioner argues that his due process rights were violated when the trial court allowed his father to be impeached with his prior domestic violence convictions. The California Court of Appeal analyzed this Claim as follows:

Defendant contends the trial court should have sanitized his father's prior convictions, so the jury would not learn that his father had been convicted of domestic abuse. In part he also contends the trial court failed to engage in an appropriate balancing test. We disagree with these contentions.

The prosecutor moved in limine in part to impeach Grays, defendant's father, with three felony convictions, one domestic violence conviction (§ 273.5) and another case in which he was convicted of domestic violence (ibid.) and felony assault (§ 245, subd. (a)(1)).

The defense filed a counter-motion to sanitize the domestic violence convictions, so the jury would not "impute the sins of the father to the son."

At the hearing, the prosecutor argued the father's experience with domestic violence was relevant because it tended to show he would not have told the police his son had committed such violence unless it had actually occurred, and he knew the police would take the case seriously, further, the prosecutor was not going to argue "the apple doesn't fall [far] from the tree" to suggest to the jury to conclude defendant was an abuser because his father had been an abuser. Defendant's trial counsel continued to argue that the jury would impute "the sins of the father onto the son."

After considering the argument, including the defense view of Evidence Code section 352, the trial court denied the request to sanitize the priors.

At trial Grays testified he had been convicted of felony spousal abuse in 2003, and in 1995 was convicted of two felonies in another "domestic violence" case.

On appeal, defendant first argues the trial court failed to weigh the appropriate factors to determine whether the evidence was more prejudicial than probative under Evidence Code section 352. We disagree. A trial court need not state its analysis on the record. The trial court considered the written and oral arguments presented by the parties and then made its ruling. The "record as a whole thus shows the trial court undertook a weighing of the probative value and the ...

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