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Leonid Adamovich Gritsyuk v. and

May 30, 2012

LEONID ADAMOVICH GRITSYUK, PETITIONER,
v.
AND F. X. CHAVEZ, WARDEN, CALIFORNIA STATE PRISON, RESPONDENT.



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

MEMORANDUM DECISION

ORDER [Re: Motion at Docket No. 11]

Leonid Adamovich Gritsyuk ("Leo"),*fn1 a state prisoner appearing pro se, filed a Petition for a Writ of Habeas Corpus under 28 U.S.C. § 2254. Leo is currently in the custody of the California Department of Corrections and Rehabilitation, incarcerated the Sierra Conservation Center in Jamestown, California. Respondent has answered. Leo has replied.

I. BACKGROUND/PRIOR PROCEEDINGS

In November of 2008, Leo pled no contest in the Sacramento County Superior Court to gross vehicular manslaughter while intoxicated, Cal. Pen. Code § 191.5(a), and driving with a blood alcohol level of .08 percent or more with three or more prior offenses, Cal. Veh. Code § 23152(b). Leo also admitted during his plea of no contest that he had a prior felony that fell under California's three-strikes law, Cal. Pen. Code § 667. In December of 2011 Leo was sentenced to fourteen years and four months in state prison. The trial court sentenced him to:

(1) four years on the vehicular manslaughter count, which was doubled to eight years because of Leo's prior strike; (2) eight months for driving under the influence, which was doubled to sixteen months for the prior strike; and (3) five years based on his prior serious felony conviction (prior strike). Leo did not appeal his conviction or sentence on direct appeal in state court.

The facts of Leo's case, stated during his change of plea hearing as the factual basis for his plea in November 2008, are as follows:

As to Count 1, in the County of Sacramento, in June 10 th , 2006, [Leo], while driving his motor vehicle, which was a truck, with a passenger in the front seat and also a passenger in the back seat, all of whom had been drinking throughout the day, they all got into [Leo's] truck. Drove Northbound on I-5. The car was going between 65 and 85 miles an hour, attempting to pass traffic in a reckless manner. At one point [Leo] did drive his truck on the dirt median of I-5 northbound, wherein he lost control of the truck. It stuck the guardrail. It barrel-rolled across the freeway, partially ejecting the victim in this case, . . . [Leo] was combative with law enforcement, and his blood alcohol -- his blood draw approximately two hours later was .17.

As to Count 7, [Leo], in January of '07, January 6 th of '07, a witness civilian called 911 reporting a truck in the middle of a residential street with the doors wide open, the lights on, and the engine running. That witness reported that there was a drunk individual walking about the street mumbling. The witness reported that the person got back into the truck and drove away, giving a description of the suspect as well as the truck. The law enforcement stopped him a short distance away while watching the car drive erratically. [Leo], who was subsequently identified by this civilian, refused FSTs and PAS. His breath test that time was .19, .21.

Further, [Leo] has suffered a number of prior DUI convictions as to Count 7; one being 23152(a) of the Vehicle Code on June 4 th of 2000. Another being a violation of Section 23512(a) On April 14, 2004, and further, a separate conviction for Section 23152(b) of the Vehicle Code on May 24 th , 2004, all of which occurred in Sacramento County.

Further, [Leo] did suffer a prior strike conviction, which is alleged as violation of Section 422 of the Penal Code in that he threatened to kill his wife while he was under the influence of alcohol and threw a knife in her direction, striking the wall with that knife.*fn2 On October 1, 2009, Leo filed a petition for habeas corpus in the Sacramento County

Superior Court, which the state trial court denied in an unreported reasoned Order on December 28, 2009. On February 22, 2010, Leo filed a petition for habeas corpus in the California Court of Appeal, Third Appellate District, which summarily denied his petition without citation to authority. On June 4, 2010, Leo filed a petition for habeas corpus in the California Supreme Court, which also summarily denied his petition without citation to authority on January 12, 2011. Leo timely filed his Petition to this Court on January 21, 2011.

II. GROUNDS/ISSUES RAISED

In his Petition to this Court, Leo raises three grounds: (1) there is insufficient evidence to support the prior strike enhancement under California Penal Code § 667 because Leo claims his prior offense under California Penal Code § 422 was a misdemeanor and not a felony; (2) the terms of Leo's 1999 plea agreement for his prior offense under California Penal Code § 422 were breached when that conviction was used as an enhancement to his current sentence, in violation of his Fifth, Eighth, and Fourteenth Amendment rights; and (3) Leo's trial court counsel was ineffective for failing to properly investigate Leo's conviction in 1999 under California Penal Code § 422. Respondent does not assert any affirmative defenses. See Rules Governing Section 2254 Cases in the U.S. Dist. Courts, Rule 5(b) (2011) ("The answer must . . . state whether any claim in the petition is barred by a failure to exhaust state remedies, a procedural bar, non-retroactivity, or a statute of limitations.").

Leo requested an evidentiary hearing and appointment of counsel in his habeas Petition to this Court, and those requests have also been renewed in his Traverse to this Court.

III. STANDARD OF REVIEW

The standard of review governing federal habeas petitions is contained in the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"), 28 U.S.C. § 2254(d), which applies to all federal habeas petitions filed after the statute's enactment in April 1996. See Lindh

v. Murphy, 521 U.S. 320, 326 (1997) (noting that Congress's intent was for AEDPA to apply to cases that were filed after the statute's enactment). Because Leo filed his Petition after the effective date of the statute, its provisions apply to his case.

Under AEDPA, 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," § 2254(d)(1), or "was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding," § 2254(d)(2).

A state-court decision is "contrary" to federal law "if the state court applies a rule that contradicts the governing law set forth" in controlling, Supreme Court authority or "if the state court confronts a set of facts that are materially indistinguishable from a decision" of the Supreme Court, but nevertheless arrives at a different result. Williams v. Taylor, 529 U.S. 362, 405-06 (2000). The Supreme Court has noted that "[a]voiding these pitfalls does not require citation of our cases-indeed, it does not even require awareness of our cases, so long as neither the reasoning nor the result of the state-court decision contradicts them." Early v. Packer, 537 U.S. 3, 8 (2002).

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." Lockyer v. Andrade, 538 U.S. 63, 75 (2003) (citing Williams, 529 U.S. at 409-10, 412). 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. Schriro v. Landrigan, 550 U.S. 465, 473 (2007) (citing Williams, 529 U.S. at 410). "AEDPA thus imposes a highly deferential standard for evaluating state-court rulings, and demands that state-court decisions be given the benefit of the doubt." Renico v. Lett, 130 S. Ct. 1855, 1862 (2010) (citations omitted) (internal quotation marks omitted). "[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.'" Lewis v. Jeffers, 497 U.S. 764, 780 (1990) (quoting Donnelly v. DeChristoforo, 416 U.S. 637, 642, 643 (1974)). 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. Fry v. Pliler, 551 U.S. 112, 121 (2007). Because "[s]tate 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. Silva v. Woodford, 279 F.3d 825, 835 (9th Cir. 2002).

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.

Harrington v. Richter, 131 S. Ct. 770, 786-87 (2011) (emphasis added).

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." Williams, 529 U.S. at 412. 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. Early, 537 U.S. at 10. 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.'" Carey v. Musladin, 549 U.S. 70, 77 (2006) (alterations in original) (citation omitted); see also Wright v. Van Patten, 552 U.S. 120, 126 (2008) (per curiam) (stating that when no Supreme Court case gives a "clear answer to the question presented," then the state-court decision cannot be contrary to or an unreasonable application of clearly established federal law); Kessee v. Mendoza-Powers, 574 F.3d 675, 678-79 (9th Cir. 2009). Accordingly, "it is not an unreasonable application of clearly established Federal law for a state court to decline to apply a specific legal rule that has not been squarely established" by the Supreme Court. Knowles v. Mirzayance, 556 U.S. 111, 122 (2009).

In applying these standards in habeas review, this Court reviews the "last reasoned decision" by the state court. Robinson v. Ignacio, 360 F.3d 1044, 1055 (9th Cir. 2004) (citing Avila v. Galaza, 297 F.3d 911, 918 (9th Cir. 2002)). 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. See Richter, 131 S. Ct. at 784("As every Court of Appealsto consider the issue has recognized, determining whether a states court's decision resulted from an unreasonable legal or factual conclusion does not require that there be an opinion from the state court explaining the state court's reasoning."); Ylst v. Nunnemaker, 501 U.S. 797, 802-03 (1991) ("Where there has been one reasoned state judgment rejecting a federal claim, later unexplained orders upholding that judgment or rejecting the same claim rest upon the same ground."). 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. See Richter, 131 S. Ct. at 784-85 (rejecting the argument that a summary disposition was not entitled to § 2254(d) deference).

Under AEDPA, the state court's findings of fact are presumed to be correct unless the petitioner rebuts this presumption by clear and convincing evidence. 28 U.S.C. § 2254(e)(1); see also Miller-El v. Cockrell, 537 U.S. 322, 340 (2003) ("Factual determinations by state courts are presumed correct absent clear and convincing evidence to the contrary . . . ." (citing 28 U.S.C. § 2254(e)(1))). This presumption applies to state-trial courts and appellate courts alike. See Stevenson v. Lewis, 384 F.3d 1069, 1072 (9th Cir. 2004) ("Stevenson does not address these factual findings, let alone challenge them with clear and convincing evidence. Accordingly, we presume them to be correct." (citing 28 U.S.C. § 2254(e)(1); Pollard v. Galaza, 290 F.3d 1030, 1035 (9th Cir. 2002))).

Under California's unique habeas procedure, a prisoner who is denied habeas relief in the superior court files a new original petition for relief in the court of appeal. If denied relief by the court of appeal, the defendant has the option of either filing a new original petition for habeas relief or a petition for review of the court of appeal's denial in the California Supreme Court. See Carey v. Saffold, 536 U.S. 214, 221-22 (2002). This is considered as the functional equivalent of the appeal process. Id. at 222.

A state court is not required to give reasons before its decision can be deemed to be "adjudicated on the merits." Richter, 131 S. Ct. at 784-85. 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." Id. (citing Harris v. Reed, 489 U.S. 255, 265 (1989)). However, "[t]he presumption may be overcome when there is reason to think some other explanation for the state court's decision is more likely." Id. at 785 (citing Ylst, 501 U.S. at 803). Where the presumption applies, this Court must perform an independent review of the record to ascertain whether the state-court decision was "objectively unreasonable." Reynoso v. Giurbino, 462 F.3d 1099, 1109 (9th Cir. 2006) (quoting Pham v. Terhune, 400 F.3d 740, 742 (9th Cir. 2005) (per curiam)). In conducting an independent review of the record, this Court presumes that the relevant state-court decision rested on federal grounds. See Coleman v. Thompson, 501 U.S. 722, 740 (1991) ("The presumption at present applies only when it ...


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