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George Edward Coles v. D.K. Sisto

February 13, 2012



Petitioner is a state prisoner proceeding pro se with a petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. Petitioner challenges a judgment of conviction entered against him in 2007 by the Sacramento County Superior Court on charges of first degree burglary, receiving stolen property, being a convicted felon in possession of a firearm, unlawfully possessing a switch-blade knife, and resisting a law enforcement officer. He seeks federal habeas relief on the following grounds: (1) the trial court erred in admitting hearsay testimony that resulted in petitioner being denied his Sixth Amendment right to confrontation and his Fourteenth Amendment rights to due process and a fair trial; (2) petitioner's trial attorney rendered ineffective assistance; and (3) the sentence he received constitutes cruel and unusual punishment. Upon careful consideration of the record and the applicable law, the undersigned will recommend that petitioner's application for habeas corpus relief be denied.


In its unpublished memorandum and opinion affirming petitioner's judgment of conviction, the California Court of Appeal for the Third Appellate District provided the following factual summary:

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.

Notice of Lodging Documents filed February 4, 2009 (Doc. No. 11), Resp't's Lod. Doc. 4 (hereinafter Opinion) at 2-4.)*fn1


I. Standards of Review Applicable to Habeas Corpus Claims

An application for a writ of habeas corpus by a person in custody under a judgment of a state court can be granted only for violations of the Constitution or laws of the United States. 28 U.S.C. § 2254(a). A federal writ is not available for alleged error in the interpretation or application of state law. See Wilson v. Corcoran, 562 U.S.___, ___, 131 S. Ct. 13, 16 (2010); Estelle v. McGuire, 502 U.S. 62, 67-68 (1991); Park v. California, 202 F.3d 1146, 1149 (9th Cir. 2000).

Title 28 U.S.C. § 2254(d) sets forth the following standards for granting federal habeas corpus relief:

An application for a writ of habeas corpus on behalf of a person in custody pursuant to the judgment of a State court shall not be granted with respect to any claim that was adjudicated on the merits in State court proceedings unless the 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 the State court proceeding.

For purposes of applying § 2254(d)(1), "clearly established federal law" consists of holdings of the United States Supreme Court at the time of the state court decision. Stanley v. Cullen, 633 F.3d 852, 859 (9th Cir. 2011) (citing Williams v. Taylor, 529 U.S. 362, 405-06 (2000)). Nonetheless, "circuit court precedent may be persuasive in determining what law is clearly established and whether a state court applied that law unreasonably." Stanley, 633 F.3d at 859 (quoting Maxwell v. Roe, 606 F.3d 561, 567 (9th Cir. 2010).

A state court decision is "contrary to" clearly established federal law if it applies a rule contradicting a holding of the Supreme Court or reaches a result different from Supreme Court precedent on "materially indistinguishable" facts. Price v. Vincent, 538 U.S. 634, 640 (2003). Under the "unreasonable application" clause of § 2254(d)(1), a federal habeas court may grant the writ if the state court identifies the correct governing legal principle from the Supreme Court's decisions, but unreasonably applies that principle to the facts of the prisoner's case.*fn2

Lockyer v. Andrade, 538 U.S. 63, 75 (2003); Williams, 529 U.S. at 413; Chia v. Cambra, 360 F.3d 997, 1002 (9th Cir. 2004). In this regard, a federal habeas court "may not issue the writ simply because that 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." Williams, 529 U.S. at 412. See also Schriro v. Landrigan, 550 U.S. 465, 473 (2007); Lockyer, 538 U.S. at 75 (it is "not enough that a federal habeas court, in its independent review of the legal question, is left with a 'firm conviction' that the state court was 'erroneous.'"). "A state court's determination that a claim lacks merit precludes federal habeas relief so long as 'fairminded jurists could disagree' on the correctness of the state court's decision." Harrington v. Richter, 562 U.S.___, ___,131 S. Ct. 770, 786 (2011) (quoting Yarborough v. Alvarado, 541 U.S. 652, 664 (2004)). Accordingly, "[a]s 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." Harrington,131 S. Ct. at 786-87.

If the state court's decision does not meet the criteria set forth in § 2254(d), a reviewing court must conduct a de novo review of a habeas petitioner's claims. Delgadillo v. Woodford, 527 F.3d 919, 925 (9th Cir. 2008); see also Frantz v. Hazey, 533 F.3d 724, 735 (9th Cir. 2008) (en banc) ("[I]t is now clear both that we may not grant habeas relief simply because of § 2254(d)(1) error and that, if there is such error, we must decide the habeas petition by considering de novo the constitutional issues raised.").

The court looks to the last reasoned state court decision as the basis for the state court judgment. Stanley, 633 F.3d at 859; Robinson v. Ignacio, 360 F.3d 1044, 1055 (9th Cir. 2004). If the last reasoned state court decision adopts or substantially incorporates the reasoning from a previous state court decision, this court may consider both decisions to ascertain the reasoning of the last decision. Edwards v. Lamarque, 475 F.3d 1121, 1126 (9th Cir. 2007) (en banc). "When a federal claim has been presented to a state court and the state court has denied relief, 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." Harrington, 131 S. Ct. at 784-85. This presumption may be overcome by a showing "there is reason to think some other explanation for the state court's decision is more likely." Id. at 785 (citing Ylst v. Nunnemaker, 501 U.S. 797, 803 (1991)). Where the state court reaches a decision on the merits but provides no reasoning to support its conclusion, a federal habeas court independently reviews the record to determine whether habeas corpus relief is available under § 2254(d). Stanley, 633 F.3d at 860; Himes v. Thompson, 336 F.3d 848, 853 (9th Cir. 2003). "Independent review of the record is not de novo review of the constitutional issue, but rather, the only method by which we can determine whether a silent state court decision is objectively unreasonable." Himes, 336 F.3d at 853. Where no reasoned decision is available, the habeas petitioner still has the burden of "showing there was no reasonable basis for the state court to deny relief." Harrington, 131 S. Ct. at 784.

When it is clear, however, that a state court has not reached the merits of a petitioner's claim, the deferential standard set forth in 28 U.S.C. § 2254(d) does not apply and a federal habeas court must review the claim de novo. Stanley, 633 F.3d at 860; Reynoso v. Giurbino, 462 F.3d 1099, 1109 (9th Cir. 2006); Nulph v. Cook, 333 F.3d 1052, 1056 (9th Cir. 2003).

II. Petitioner's Claims

A. Alleged Violation of the Rights to Confrontation, Due Process and a Fair Trial

As noted above, petitioner claims that his Sixth Amendment right to confrontation and his right to due process and a fair trial under the Fourteenth Amendment were violated. (Doc. No. 41 at 7-14.) In this regard, petitioner argues that the trial court erred by allowing Deputy Sotelo to testify as to what he had been told a citizen who alerted police that a black man was running on a nearby street. Petitioner contends that the admission of this hearsay testimony deprived him of his right to confront his accuser. The challenged trial testimony was as follows:

[DEPUTY DISTRICT ATTORNEY] MACY: Who did the citizen go up to?

DEPUTY SOTELO: They didn't go up to anybody. They just stopped their car as they were driving west on Klamath River.

MS. MACY: Okay. Did the person, the citizen contact you? DEPUTY SOTELO: Yes MS. MACY: They basically told me that ...

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