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Roosevelt Leon Cathey v. D. K. Sisto

February 6, 2012

ROOSEVELT LEON CATHEY, PETITIONER,
v.
D. K. SISTO, WARDEN, CALIFORNIA STATE PRISON, SOLANO, RESPONDENT.



The opinion of the court was delivered by: James K. Singleton, Jr. United States District Judge

MEMORANDUM DECISION

Roosevelt Cathey, a state prisoner appearing pro se, filed a Petition for Habeas Corpus under 28 U.S.C. § 2254. Cathey is currently in the custody of the California Department of Corrections and Correctional Services, incarcerated at the California State Prison, Solano. Respondent has answered, and Cathey has replied.

I. BACKGROUND/PRIOR PROCEEDINGS

In February 2007 Cathey was convicted following a jury trial along with a co-defendant, George Coles, in the Sacramento County Superior Court of Burglary in the First Degree, Cal. Penal Code § 459, with two prior serious felony convictions, Cal. Penal Code §§ 667, 1170.12. The trial court sentenced Cathey to an aggregate prison term of thirty-five years to life. On appeal, the California Court of Appeal, Third Appellate District, affirmed Cathey's conviction and sentence in an unpublished decision,*fn1 and the California Supreme Court denied review on June 25, 2008. Cathey timely filed his Petition for relief in this Court on August 5, 2008.

While Cathey's Petition before this Court was pending, Cathey sought and obtained a stay of this proceeding pending the exhaustion of his remedies in the state courts.*fn2 Cathey then filed a habeas petition in the California Supreme Court on December 28, 2008, which was summarily denied without opinion or citation to authority on June 23, 2010. Cathey filed his undated Amended Petition for relief on August 18, 2010.

The facts of the crime, as summarized by the California Court of Appeal, are:

At about 9:00 a.m. on August 21, 2006, Michael Nicolaou heard his doorbell ring and his neighbor's dogs barking. He walked out of his house and saw Coles and Cathey, who are African-American, standing in his neighbor's driveway. Nicolaou asked, "Can I help you?" Cathey said they were looking for "Tiffany" to give them a ride to work, they had called Tiffany from a phone booth, and they were going to return to the phone booth and try again. Suspicious because he knew there were no phone booths in the area, Nicolaou called the sheriff's department and provided descriptions of Coles and Cathey and the clothing they were wearing.

About 10:00 a.m. that morning, Nathan Schemel drove away from his residence and saw Coles and Cathey walking on the sidewalk in the direction of his home. At 10:45 a.m., in response to a call from the sheriff's department, he returned to his home where he saw Coles and Cathey being detained. Schemel's home had been broken into and ransacked.

Deputies Claudio Sotelo and Peter Cress had responded to Nicolaou's report. Upon arriving at the location, they saw Cathey walking down the driveway of Schemel's residence. Because Cathey matched a description provided by Nicolaou, the deputies asked Cathey why he was there. Cathey said that he was alone in the neighborhood trying to find a woman who had offered him a lawn mowing job and that he was going house to house to locate her because she had not given him an address.

Sotelo checked Schemel's house, found the door was unlocked, detained Cathey, and called for additional deputies. A person then drove up and told the deputies that he had seen a Black man running on a street directly north of Schemel's house. Sotelo directed Deputy Larry Canfield, a motorcycle officer, to try and locate the individual.

As Canfield drove through the neighborhood, he saw Coles running across a street. Using his PA system, Canfield ordered Coles to get on the ground. Coles lay face down on the grass of a residence but kept reaching into his right front pocket pants pocket with his hand. Although Canfield told Coles to remove his hand from his pocket, he would not comply.

Canfield tried to get physical control of Coles; a struggle ensued and Coles tried to grab Canfield's weapon. During the struggle, Canfield saw a butterfly knife fall from Coles's pants pocket. With the help of a bystander, Canfield subdued Coles and put him in a patrol car. A search of the area where the struggle occurred revealed a loaded .32 caliber semiautomatic firearm. The firearm had been stolen six days earlier during a residential burglary.*fn3

II. GROUNDS RAISED/DEFENSES

In his Amended Petition, Cathey raises seven grounds: (1(a)) actual innocence; (1(b)) ineffective assistance of trial counsel; (1(c)) ineffective assistance of appellate counsel; (2(a)) the sentence imposed violated the Eighth Amendment's proscription on cruel and unusual punishment; (2(b)) the trial court erred in not holding a proper Romero hearing;*fn4 (3(a)) his Sixth Amendment right to confrontation was violated when the trial court allowed a police officer to testify as to what he was told by an unidentified "phantom" witness; and (3(b)) his Sixth Amendment rights were violated when a police officer was permitted to testify to Cathey's outof-court statement. Respondent asserts no affirmative defense.*fn5

III. STANDARD OF REVIEW

Under the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"), 28 U.S.C. § 2254(d), this Court cannot grant relief unless the decision of the state court was "contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States" at the time the state court renders its decision or "was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding."*fn6 The Supreme Court has explained that "clearly established Federal law" in § 2254(d)(1) "refers to the holdings, as opposed to the dicta, of [the Supreme Court] as of the time of the relevant state-court decision."*fn7 The holding must also be intended to be binding upon the states; that is, the decision must be based upon constitutional grounds, not on the supervisory power of the Supreme Court over federal courts.*fn8 Thus, where holdings of the Supreme Court regarding the issue presented on habeas review are lacking, "it cannot be said that the state court 'unreasonabl[y] appli[ed] clearly established Federal law.'"*fn9 When a claim falls under the "unreasonable application" prong, a state court's application of Supreme Court precedent must be "objectively unreasonable," not just "incorrect or erroneous."*fn10 The Supreme Court has made clear that the objectively unreasonable standard is "a substantially higher threshold" than simply believing that the state-court determination was incorrect.*fn11 "[A]bsent a specific constitutional violation, federal habeas corpus review of trial error is limited to whether the error 'so infected the trial with unfairness as to make the resulting conviction a denial of due process.'"*fn12 In a federal habeas proceeding, the standard under which this Court must assess the prejudicial impact of constitutional error in a state court criminal trial is whether the error had a substantial and injurious effect or influence in determining the outcome.*fn13 Because state court judgments of conviction and sentence carry a presumption of finality and legality, the petitioner has the burden of showing by a preponderance of the evidence that he or she merits habeas relief.*fn14

The Supreme Court recently underscored the magnitude of the deference required: As amended by AEDPA, § 2254(d) stops short of imposing a complete bar on federal court relitigation of claims already rejected in state proceedings. Cf. Felker v. Turpin, 518 U.S. 651, 664, 116 S.Ct. 2333, 135 L.Ed.2d 827 (1996) (discussing AEDPA's "modified res judicata rule" under § 2244). It preserves authority to issue the writ in cases where there is no possibility fairminded jurists could disagree that the state court's decision conflicts with this Court's precedents. It goes no farther. Section 2254(d) reflects the view that habeas corpus is a "guard against extreme malfunctions in the state criminal justice systems," not a substitute for ordinary error correction through appeal. Jackson v. Virginia, 443 U.S. 307, 332, n.5, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979) (Stevens, J., concurring in judgment). As a condition for obtaining habeas corpus from a federal court, a state prisoner must show that the state court's ruling on the claim being presented in federal court was so lacking in justification that there was an error well understood and comprehended in existing law beyond any possibility for fairminded disagreement.*fn15

In applying this standard, this Court reviews the "last reasoned decision" by the state court.*fn16 State appellate court decisions that summarily affirm a lower court's opinion without explanation are presumed to have adopted the reasoning of the lower court.*fn17 This Court gives the presumed decision of the state court the same AEDPA deference that it would give a reasoned decision of the state court.*fn18

A state court is not required to give reasons before its decision can be deemed to be "adjudicated on the merits."*fn19 When there is no reasoned state-court decision denying an issue presented to the state, "it may be presumed that the state court adjudicated the claim on the merits in the absence of any indication or state-law procedural principles to the contrary."*fn20

"The presumption may be overcome when there is reason to think some other explanation for the state court's decision is more likely."*fn21 Where the presumption applies, this Court must perform an independent review of the record to ascertain whether the state-court decision was "objectively unreasonable."*fn22 In conducting an independent review of the record, this Court presumes that the relevant state-court decision rested on federal grounds,*fn23 giving that presumed decision the same deference as a reasoned decision.*fn24 The scope of this review is for clear error of the state court ruling on the petition:

[A]lthough we cannot undertake our review by analyzing the basis for the state court's decision, we can view it through the "objectively reasonable" lens ground by Williams. . . . Federal habeas review is not de novo when the state court does not supply reasoning for its decision, but an independent review of the record is required to determine whether the state court clearly erred in its application of controlling federal law. Only by that examination may we determine whether the state court's decision was objectively reasonable.*fn25

"[A]lthough we independently review the record, we still defer to the state court's ultimate decision."*fn26

IV. DISCUSSION

Ground 1(a): Actual Innocence In this ground, Cathey contends that he is "actually innocent" of the charge of which he was convicted-first-degree burglary. Cathey raised this claim in his habeas petition to the California Supreme Court.

While a federal habeas petitioner may assert a claim of actual innocence to overcome a procedural bar to review,*fn27 a situation not present in this case, the Supreme Court has never held that a freestanding claim of innocence is cognizable in a § 2254 petition filed by a non-capital defendant.*fn28 House declined to answer the question left open in Herrera, noting that because "[p]petitioner has failed to make a persuasive showing of actual innocence . . . . [T]he Court has no reason to pass on, and appropriately reserves, the question whether federal courts may entertain convincing claims of actual innocence."*fn29 The Ninth Circuit, however, has assumed as much without deciding the question and has held that "a habeas petitioner asserting a freestanding innocence claim must go beyond demonstrating doubt about his guilt, and must affirmatively prove that he is probably innocent."*fn30 Following the lead of the circuit, assuming, but not deciding, that a freestanding actual innocence claim is cognizable in a § 2254 proceeding, it is necessary to apply the appropriate standard to the evidence.

In the context of overcoming a procedural default, a federal habeas petitioner must demonstrate that the constitutional violations he alleges "ha[ve] probably resulted in the conviction of one who is actually innocent," such that a federal court's refusal to hear the defaulted claims would be a "miscarriage of justice."*fn31 It is important to note that, in this context, "'actual innocence' means factual innocence, not mere legal insufficiency."*fn32 To make the requisite showing of actual innocence, the petitioner must produce "new reliable evidence-whether it be exculpatory scientific evidence, trustworthy eyewitness accounts, or critical physical evidence-that was not presented at trial" and "must show that it is more likely than not that no reasonable juror would have convicted him in the light of the new evidence."*fn33

New evidence is relevant evidence that was either excluded or unavailable at trial.*fn34 In making its analysis, a federal habeas court considers the entire record, old evidence as well as new, and "on this total record, the court must make a probabilistic determination of what reasonable, properly instructed jurors would do."*fn35 In so doing, the court "may consider how the timing of the submission and the likely credibility of the affiants bear on the probable reliability of that evidence."*fn36

In the context of the hypothetical freestanding actual innocence claim, the Supreme Court has described the threshold as "extraordinarily high."*fn37 "The sequence of the Court's decisions in Herrera and Schlup-first leaving unresolved the status of freestanding claims and then establishing the gateway standard-implies at the least that Herrera requires more convincing proof of innocence than Schlup."*fn38 Measured against this standard, Cathey has fallen far short of establishing his actual innocence.

Cathey has produced no new evidence.*fn39 Reduced to its essence, Cathey's argument is that the evidence does not establish that he entered the building or, if he entered the building, he did so without the intent to commit a felony. Cathey's argument is that the evidence is insufficient to establish the elements of the crime of burglary, not an actual innocence argument. Accordingly, this Court addresses it as such.*fn40 The California Supreme Court did not give any reasons for denying this claim. When there is no reasoned state-court decision denying an issue presented to the state, "it may be presumed that the state court adjudicated the claim on the merits in the absence of any indication or state-law procedural principles to the contrary."*fn41 "The presumption may be overcome when there is reason to think some other explanation for the state court's decision is more likely."*fn42 Where the presumption applies, this Court must perform an independent review of the record to ascertain whether the state-court decision was "objectively unreasonable."*fn43 In conducting an independent review of the record, this Court presumes that the relevant state-court decision rested on federal grounds,*fn44 giving that presumed decision the same deference as a reasoned decision.*fn45
As articulated by the Supreme Court in Jackson, the constitutional standard for sufficiency of the evidence is whether, "after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt."*fn46 In making this determination, this Court may not usurp the role of the finder of fact by considering how it would have resolved any conflicts in the evidence, made the inferences, or considered the evidence at trial.*fn47 Rather, when "faced with a record of historical facts that supports conflicting inferences," this Court "must presume-even ...

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