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Aaron P. Stone v. M. Martel

November 17, 2011

AARON P. STONE, PETITIONER,
v.
M. MARTEL, ET AL., RESPONDENTS.



The opinion of the court was delivered by: Gregory G. Hollows United States Magistrate Judge

FINDINGS and RECOMMENDATIONS

Petitioner is a state prisoner proceeding pro se with an application for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. Respondent has moved to dismiss the petition, arguing that it is untimely, or in the alternative, that the claims raised are not exhausted. Petitioner has opposed the motion, and has additionally filed several other motions. For the reasons outlined below, the undersigned recommends that the motion to dismiss be granted, and that the remaining motions be denied as moot.

BACKGROUND

On November 14, 2006, petitioner was convicted by jury of six counts of violation of California Penal Code § 288(a), Lewd Acts with a Child Under 14, and was subsequently sentenced to a term of eighteen years on the convictions. The sentence consisted of: (1) an eight year sentence for one of the counts, and (2) five consecutive, middle term sentences of 2 years each on the remaining five counts. On July 31, 2008, the Court of Appeals, Third Appellate District, overturned the conviction in part, finding insufficient evidence to support the convictions, and modified the sentence to eliminate the corresponding consecutive two year term on the overturned court. Lodged Doc. No. 1, at p. 12 ("The sentence is modified to eliminate the consecutive term imposed on count six. The trial court is directed to amend the abstract of judgment to reflect the foregoing....As so modified, the judgment is affirmed.") In accordance with the Court of Appeal's order, on November 28, 2008, the trial court entered a new sentence for 16 years. See Doc. No. 1, p. 80.*fn1

On September 8, 2008, petitioner filed a petition for review in the California Supreme Court. His petition raised the following questions: (1) whether petitioner's Fourteenth Amendment due process rights were violated by the trial court's admission of evidence of defendant's prior bad acts; (2) whether the trial court's imposition of an upper-term sentence violated petitioner's Fifth, Sixth, and Fourteenth Amendment rights, since the trial court, rather than a jury, had made the findings underlying the factors relied upon by the trial court in imposing the upper-term sentence; and (3) whether the trial court erred in sentencing petitioner to consecutive terms of imprisonment. See Lodged Doc. No. 2. On October 16, 2008, the Supreme Court denied review in a summary order which did not cite to any authority. See Lodged Doc. No. 3. A review of the record reflects that petitioner has not filed any other challenges in the state Supreme Court. See Doc. No. 36, p. 6.

On January 14, 2009, the time for petitioner to file a petition for writ of certoirari in the United States Supreme Court expired. See Sup. Ct. R. 13. A review of the record reflects that petitioner did not file any petitions with the United States Supreme Court.

In the meantime, petitioner sought collateral relief in the Superior Court and the Court of Appeals. The record before this court reflects that, between 2007 and 2010, petitioner filed more than twenty petitions or motions attacking the criminal judgment.

A brief review of these pleadings is necessary to determine the respondent's motion:

(1) On January 17, 2007,*fn2 petitioner filed a petition for writ of habeas corpus in the Court of Appeal for the State of California, Third Appellate District (docket no. C054619). See Lodged Doc. No. 52. Petitioner alleged, among other things, that the evidence was insufficient to support his conviction, and that his trial counsel was ineffective. Id. The Court of Appeal denied the petition on January 25, 2007, citing In re Hillery, 202 Cal. App. 2d 293, 294 (1962) (petitioners should first seek habeas relief in superior courts) and In re Harris, 5 Cal. 4th 813, 826-27 (1993) (habeas may not be employed as a substitute for an appeal). See Lodged Doc. No. 53. (2) On May 3, 2007, petitioner filed a petition for writ of habeas corpus in Sacramento County Superior Court (docket no. 07F04643). See Lodged Doc. No. 4. Petitioner alleged, among other things, that the evidence adduced at trial was insufficient to support his convictions. Petitioner also noted that he had a pending appeal in the Court of Appeal. On May 30, 2007, the Superior Court dismissed the petition, noting that it was without authority to proceed on the writ petition for any error which was or might have been presented to the appellate court. See Lodged Doc. No. 5.

(3) On June 13, 2007, petitioner filed a petition for writ of habeas corpus in Sacramento County Superior Court (docket no. 07F05632). See Lodged Doc. No. 6. Petitioner alleged, among other things, that the evidence at trial was insufficient to support his convictions and that the victim's testimony was not credible. On July 30, 2007, the Superior Court, noting that petitioner's appeal was still pending, denied the petition "for the same reason his earlier petition was denied - while the appeal is pending, this court lacks authority to entertain any claim which was, or should have been, presented to the Court of Appeal." See Lodged Doc. No. 7.

(4) On June 18, 2007, petitioner filed a petition for writ of habeas corpus in Sacramento County Superior Court (docket no. 07F06036). See Lodged Doc. No. 8. Petitioner alleged, among other things, that his counsel was incompetent and that his pre-trial bail amount was too high. On August 8, 2007, the Superior Court denied the petition, finding that petitioner failed to establish a prima facie showing on either the counsel or bail claims. See Lodged Doc. No. 9. (A third claim was dismissed because the direct appeal was still pending.)

(5) On July 31, 2008, the Court of Appeal affirmed the judgment against petitioner, except as to Count 6, which was reversed for insufficient evidence. On or about November 24, 2008, the trial court entered its amended sentence.

(6) On September 8, 2008, petitioner filed a petition for review in the California Supreme Court. (Docket Number S166573), (see Lodged Doc. No. 2) which was denied on October 16, 2008. See Lodged Doc. No. 3.

(7) On December 17, 2008, petitioner filed a petition for writ of habeas corpus in Sacramento County Superior Court (docket no. 08F10306). See Lodged Doc. No. 10. Among other things, petitioner alleged that the trial court abused its discretion in not sentencing petitioner to probation, and in allowing testimony regarding incidents of domestic violence between petitioner and the victim's mother. On February 5, 2009, the Superior Court found that this petition was successive, because the third petition challenging the judgment, Case No. 07F06036, was denied on its merits. See Lodged Doc. No. 11. The Superior Court found that each of petitioner's claims were procedurally barred, and, in the alternative, that petitioner failed to make a prima facie showing for relief.

(8) On March 12, 2009, petitioner filed a petition for writ of habeas corpus in the Court of Appeal, Third Appellate District (docket no. C061287). See Lodged Doc. No. 54. Petitioner argued that the Superior Court erred in finding his most recent habeas petition successive because the Superior Court had lacked jurisdiction to review his prior habeas petitions, filed while his direct appeal was still pending. He additionally argued, among other things, that his sentence was unconstitutional because the trial court failed to sentence him to probation when he was eligible for it. On April 2, 2009, the Court of Appeal denied the petition as successive, citing People v. Kim, 45 Cal. 4th 1078, 1101 (2009) (piecemeal presentation of known claims is prohibited) and In re Clark, 5 Cal. 4th 750, 777 (1993) (same). See Lodged Doc. No. 55.

(9) On April 13, 2009, petitioner filed a petition for writ of habeas corpus in Sacramento County Superior Court (docket no. 09F03042). See Lodged Doc. No. 12. Petitioner alleged that the Superior Court's three prior decisions, denying his prior habeas petitions on the ground that his appeal was pending, were void judgments, and asked that the Superior Court "clarify this matter regarding any procedural bar...." Petitioner additionally argued that the trial court abused its discretion in not sentencing petitioner to probation, and that his trial counsel was ineffective. On May 28, 2009, the Superior Court denied the petition, finding that it was his fifth challenging the criminal judgment and that it was successive. See Lodged Doc. No. 13. The Superior Court additionally found that there was no merit in petitioner's sentencing or counsel claims.

(10) On June 12, 2009, petitioner filed a petition for writ of habeas corpus in the Court of Appeal, Third Appellate District (docket no. C062079). See Lodged Doc. No. 56. Petitioner alleged that the trial court "acted in excess of its jurisdiction," and asks to be re-sentenced. He claims that he only became aware of the grounds for re-sentencing after the trial court denied his first three petitions. On June 18, 2009, the Court of Appeal denied the petition as successive, citing to In re Clark, supra. See Lodged Doc. No. 57.

(11) On July 15, 2009 and July 21, 2009, petitioner filed motions for modification of his sentence in his original criminal case. See Lodged Doc. Nos. 14 and 15. Each motion was a one-page form. Petitioner did not give any grounds in support of the application. The motions were denied in minute orders by Judge Savage on July 21, 2009 and on August 4, 2009. See Lodged Doc. Nos. 16 and 17.

(12) On August 28, 2009, petitioner filed a petition for writ of mandate or prohibition with the Court of Appeal, Third Appellate District (docket no. C062771), seeking to overturn his sentence because, he argued, the trial court unconstitutionally enhanced his sentence in violation of Cunningham v. California, 127 S. Ct. 856, 549 U.S. 270 (2007). See Lodged Doc. No. 58. He again argues that the trial court abused its discretion in not sentencing him to probation. On September 3, 2009, the Court of Appeal denied the petition. See Lodged Doc. No. 59.

(13) On September 24, 2009, petitioner filed a petition for writ of mandate or prohibition with the Court of Appeal, Third Appellate District (docket no. C063009), raising again the Cunningham sentencing argument he had raised in his August 28, 2009 petition. See Lodged Doc. No. 60. On October 8, 2009, the Court of Appeal denied the petition. See Lodged Doc. No. 61.

(14) On October 13, 2009, petitioner filed a petition for writ of mandamus in the Court of Appeal, Third Appellate District (docket no. C063172), alleging errors in his original sentence, and in his amended sentence. See Lodged Doc. No. 62. In particular, petitioner claimed that he was not present at his re-sentencing hearing, and that his sentence violated Cunningham, supra. On November 12, 2009, the Court of Appeal denied the petition. See Lodged Doc. No. 63.

(15) On December 22, 2009, petitioner filed a petition for writ of mandate or prohibition with the Sacramento County Superior Court (docket number 34-2009-80000409), alleging that his original sentence and amended sentence were illegal because, among other things, the record does not support an upper-term sentence. Petitioner also argues that his due process rights were violated because he was not present at the re-sentencing hearing. See Lodged Doc. No. 18. The Superior Court construed the mandamus as a habeas petition (see Lodged Doc. No. 19), and, on March 2, 2010, denied it (see Lodged Doc. No. 20), finding it successive and untimely, and additionally finding no merit to the claims. In particular, the Superior Court noted that there was no Cunningham error, because petitioner's prior convictions were sufficient "aggravating factors" in support of an upper-term sentence.

(16) On March 15, 2010, petitioner filed a petition for writ of habeas corpus in the Sacramento County Superior Court (docket no. 10F01858). See Lodged Doc. No. 21. Petitioner had initiated an administrative proceeding at his prison, claiming that his sentence was not valid and asking the prison to recall the sentence. The prison denied his claims, explaining that the records reflected that he was sentenced legally. On April 19, 2010, the Superior Court denied petitioner's petition, which it described as an effort by petitioner to obtain "a court order, on habeas corpus, that the Department file with the court a recommendation for recall of the sentence......because [petitioner] is not sentenced by the court or his sentence is unlawful. This claim is utterly meritless." See Lodged Doc. No. 22.

(17) On April 6, 2010, petitioner filed a petition for writ of habeas corpus in the Amador County Superior Court (docket no. 10-HC-1259), alleging that the trial court abused its discretion in not sentencing him to probation, and also violated his due process rights in not having him present during re-sentencing. See Lodged Doc. No. 23. On April 23, 2010, Amador County ...


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