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Johnny C. Thomas v. Gary Swarthout

December 5, 2011

JOHNNY C. THOMAS, PETITIONER,
v.
GARY SWARTHOUT,
RESPONDENT.



The opinion of the court was delivered by: Carolyn K. Delaney United States Magistrate Judge

ORDER & FINDINGS AND RECOMMENDATIONS

Petitioner is a state prisoner proceeding pro se with an application for writ of habeas corpus pursuant to 28 U.S.C. § 2254. This action is proceeding on the first amended petition filed on April 28, 2011. (Dkt. No. 11 ("Ptn.").) Pending before this court is respondent's June 28, 2011 motion to dismiss the petition in part on the grounds that three of petitioner's claims are unexhausted, and one of his claims is not cognizable in federal law. (Dkt. No. 15 ("Mtn.").) Also pending is petitioner's July 17, 2011 motion to voluntarily dismiss the petition in part, conceding that two of his claims in the first amended petition are unexhausted and requesting that these claims be dismissed. (Dkt. No. 19.) Petitioner has also filed a motion for summary judgment (Dkt. No. 17) and a motion for an evidentiary hearing. (Dkt. Nos. 17, 22.) The undersigned addresses all of these motions below.

FACTUAL BACKGROUND

The following factual summary is taken from the California Court of Appeal, First Appellate District's opinion on direct appeal, dated July 24, 2009:

On the evening of June 28, 2005, Belinda Hill (the victim) visited the Fairfield apartment of her friends Barbara and Nicholas Rubio. FN2 The three drank beer but did not use drugs. Around 2:00 the next morning, defendant went to the Rubios' apartment and knocked on their window. Barbara let defendant into her home, and defendant began threatening the victim about coming home. The victim told defendant she "would be there," defendant left, and the victim spent the night at the Rubios' apartment.

FN2. To avoid confusion, we refer to the Rubios by their first names.

Later that morning, around 8:00, defendant returned to the Rubios' apartment, banged on their front door, and entered the apartment. Defendant threw Nicholas's phone down and "just went wild." He punched the victim, kicked her in the ribs, grabbed her by the head, and slammed her onto the dining room table, breaking the table in half. According to Nicholas, the victim tried to get out of the apartment, but defendant hit and kicked her until she was on the ground in "a puddle of blood." Barbara testified that defendant dragged the victim out of the Rubios' apartment by her hair. Barbara went to her next door neighbor's apartment and asked her neighbor to call 911.

Defendant fled in a white car. When police arrived at the scene, they saw blood in the hallway that led to the Rubios' apartment. The victim was in the Rubios' apartment holding a blood-soaked compress to her head. She had a "golf ball size egg on her forehead" and an open cut on her face that was bleeding. The victim was taken by ambulance to the hospital, where she was crying and visibly upset. She had a "gaping wound" over her eye that required stitches. The victim appeared to be under the influence of alcohol. Police spoke with the victim at the hospital, and she appeared to be frightened to report who caused her injuries.

Police were dispatched back to the Rubios' apartment around 8:53 a.m. after receiving a report that the person who beat the victim had returned and was banging on the door. When officers arrived at the scene, they saw a white car that appeared to be unoccupied in front of the apartment complex. When officers walked toward the apartment, they saw defendant's head "pop up" in the back seat of the car. Defendant was arrested. After he was read his rights pursuant to Miranda v. Arizona (1966) 384 U.S. 436, defendant said that the victim was injured when she fell down.

Defendant was charged by information with corporal injury to a spouse or cohabitant (Pen.Code, § 273.5, subd. (a) FN3-count 1), with an allegation that defendant personally inflicted great bodily injury under circumstances involving domestic violence (§ 12022.7, subd. (e)). The information also alleged a strike prior (§§ 667, subds.(b)-(I), 1170.12, subds. (a)-(d)) based on a 1983 homicide conviction in Texas. The information later was amended to allege an additional strike prior based on a 1975 Texas burglary conviction. As set forth more fully below ( post, § II.C.1), a second amended information was later filed to add a count of assault by means likely to produce great bodily injury (§ 245, subd. (a)(1)-count 2), with an allegation that defendant personally inflicted great bodily injury under circumstances involving domestic violence (§ 12022.7, subd. (e)).

FN3. All statutory references are to the Penal Code unless otherwise indicated.

Defendant was represented by counsel at his preliminary hearing, but the trial court later granted defendant's motion pursuant to Faretta v. California (1975) 422 U.S. 806 (Faretta) to represent himself. Defendant represented himself at his first trial, which ended in a hung jury; the trial court declared a mistrial. An attorney represented defendant at his second trial after defendant requested counsel. Nicholas and Barbara testified at the second trial, and identified defendant as the person who beat the victim. The victim did not testify after a deputy public defender representing her stated that the victim would be asserting her Fifth Amendment privilege against self-incrimination, based on the fact that she might expose herself to perjury charges for filing a false police report. FN4 Because the People did not want to grant the victim immunity, the prosecutor elected to proceed to trial without the victim's testimony. However, members of the victim's family, including her teenaged daughter, testified that defendant was driving the victim's daughter to school at the time of the beating, which supported defendant's claim that the Rubios fought with the victim and defendant arrived only after the victim suffered injuries.

FN4. Defendant previously had filed a "Declaration of Innocence Statement" from the victim, in which she claimed that it was the Rubios and their neighbor, not defendant, who beat her, and that they also forced her to accuse defendant of the beating.

The jury found defendant guilty as charged, and found the related great bodily injury allegations true. Following a court trial, the trial court found the prior conviction allegations true.FN5 FN5. The trial court later granted defendant's motion for a new trial as to the strike based on the Texas burglary conviction. The prosecutor later conceded that the burglary conviction should be stricken, because there was insufficient proof that the conviction qualified as a residential burglary under California law.

The trial court sentenced defendant to a total term of 18 years, calculated as follows: the upper term of four years on count 1, doubled to eight years because of the strike prior, plus the upper term of five years on the great bodily injury enhancement (ยง 12022.7, subd. (e)), with an additional five years for the ...


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