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Clarence Leon Dews v. Kern Valley State Prison

June 19, 2012

CLARENCE LEON DEWS,
PETITIONER,
v.
KERN VALLEY STATE PRISON, ET. AL.,
RESPONDENTS.



The opinion of the court was delivered by: Sheila K. Oberto United States Magistrate Judge

ORDER DISCHARGING ORDER TO SHOW CAUSE (DOC. 8) FINDINGS AND RECOMMENDATIONS TO DISMISS THE PETITION FOR WRIT OF HABEAS CORPUS WITHOUT LEAVE TO AMEND (DOC. 1) FINDINGS AND RECOMMENDATIONS TO DISMISS ALL PENDING MOTIONS AS MOOT (DOCS. 3, 11, 14, 16, 19, 20, 21)

FINDINGS AND RECOMMENDATIONS TO DECLINE TO ISSUE A CERTIFICATE OF APPEALABILITY AND TO DIRECT THE CLERK TO SEND PETITIONER A COMPLAINT FORM AND TO CLOSE THE ACTION OBJECTIONS DEADLINE: THIRTY (30) DAYS

Petitioner is a state prisoner proceeding pro se and in forma pauperis with a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254. The matter has been referred to the Magistrate Judge pursuant to 28 U.S.C.§ 636(b)(1) and Local Rules 302 through 304. Pending before the Court is Petitioner's petition, which was filed on March 12, 2012, and transferred to this Court on March 22, 2012.

I. Discharge of the Order to Show Cause On April 3, 2012, the Court issued to Petitioner an order to show cause why the petition should not be dismissed for failure to exhaust state court remedies as to his claims.

Because Petitioner responded to the order to show cause, the order to show cause issued on April 3, 2012, is DISCHARGED.

II. Screening the Petition

Rule 4 of the Rules Governing § 2254 Cases in the United States District Courts (Habeas Rules) requires the Court to make a preliminary review of each petition for writ of habeas corpus. The Court must summarily dismiss a petition "[i]f it plainly appears from the petition and any attached exhibits that the petitioner is not entitled to relief in the district court...." Habeas Rule 4; O'Bremski v. Maass, 915 F.2d 418, 420 (9th Cir. 1990); see also Hendricks v. Vasquez, 908 F.2d 490 (9th Cir. 1990). Habeas Rule 2(c) requires that a petition 1) specify all grounds of relief available to the Petitioner; 2) state the facts supporting each ground; and 3) state the relief requested. Notice pleading is not sufficient; the petition must state facts that point to a real possibility of constitutional error. Rule 4, Advisory Committee Notes, 1976 Adoption; O'Bremski v. Maass, 915 F.2d at 420 (quoting Blackledge v. Allison, 431 U.S. 63, 75 n. 7 (1977)). Allegations in a petition that are vague, conclusory, or palpably incredible are subject to summary dismissal. Hendricks v. Vasquez, 908 F.2d at 491.

The Court may dismiss a petition for writ of habeas corpus either on its own motion under Habeas Rule 4, pursuant to the respondent's motion to dismiss, or after an answer to the petition has been filed. Advisory Committee Notes to Habeas Rule 8, 1976 Adoption; see, Herbst v. Cook, 260 F.3d 1039, 1042-43 (9th Cir. 2001).

Petitioner alleges that he is an inmate of the Kern Valley State Prison (KVSP) in Delano, California, located in the Eastern District of California. Petitioner names the warden of the prison as a Respondent. Petitioner challenges his conviction of receiving stolen property in the Superior Court of the State of California, County of Fresno, for which he was sentenced on October 12, 2011. (Pet., doc. 1, 2.) Petitioner raises the following claims in the petition: 1) the courts must not keep stating that counsel for an indigent defendant must receive transcripts of the trial proceedings because pursuant to the Sixth and Fourteenth Amendments, the accused shall be informed of the nature and cause of the accusation, be confronted with the witnesses against him, and have compulsory process; 2) an indigent defendant must be allowed a right to a transcript pursuant to the Fourth and Fifth Amendments and due process of law; 3) the order issued by the Eastern District Court on February 9, 2012, directed the clerk to close the case, which denied Petitioner the right to redress the court under the First Amendment; 4) under the Sixth and Fourteenth Amendments, the accused has an independent right to a reporter's transcript of criminal trial proceedings, and rights to be informed of the charges, confront witnesses against him, compulsory process for obtaining witnesses in his favor, and the assistance of counsel in his defense; and 5) a claim set forth verbatim as follows:

"There are 'the right to study, to confront, to re-examine or to examine, to have the accusation of the cause of the nature of why there is witnesses against, this duty to and indigent defender is compelled by the 5th, 6th, 14th, to have theses (sic) rights by the Constitution of the people of the United Constitutional Amendment. Your honor, this is a constitutional right; it must be protected, it must not be denied a defendant...." (Id. at 5-6.)

III. Background

The Court takes judicial notice of an opinion filed on May 9, 2012, in People v. Clarence Leon Dews, case number F061339, in the Court of Appeal of the State of California, Fifth Appellate District (CCA). *fn1 This decision is the opinion on direct appeal from the judgment rendered in Fresno County Superior Court case number F09906781, the judgment to which Petitioner's claims relate.

The opinion summarizes the evidence introduced at Petitioner's trial, which resulted in his conviction of receiving stolen property in violation of Cal. Pen. Code § 496(a) on December 1, 2009, with a prior "strike" conviction within the meaning of Cal. Pen. Code § 667(b)-(i), a prior serious felony conviction within the meaning of Cal. Pen. Code § 667(a)(1), and nine prior prison term enhancements within the meaning of Cal. Pen. Code § 667.5(b). Petitioner was sentenced to fifteen years in prison. (Op. at 1-2.)

With respect to the facts relating to Petitioner's receipt of stolen property, Gerald McCarter discovered that the door of his house on West Belmont had been forced open and the interior ransacked; some of the personal property from the residence was missing, and some had been moved and stacked by the front door as if someone were going to return and remove the items. McCarter departed after waiting unsuccessfully for about four hours for the perpetrators. He returned at about 10:30 p.m. and observed that the front door and screen were open, and a car was parked on the street in front of the house. Armed with a handgun, McCarter entered the house and discovered Petitioner's brother, Archie, going through some electrical equipment in the living room. When Archie failed to respond to McCarter's inquiries, McCarter fired a warning shot. Petitioner emerged from a back bedroom. Petitioner and Archie were detained and arrested by law enforcement officers, who were called to the scene. A search of Petitioner incident to arrest yielded distinctive items which McCarter identified as having been removed from the house and having belonged to his late father, a previous resident. Archie testified, admitting that he had told a deputy that he had been looking for things in the house that he could recycle for a few dollars, and that a friend had told him that the house contained a lot of stuff, including some pretty good fishing poles. (Id. at 6-11.)

The only issues raised in the appeal concerned the propriety of the trial court's denial of Petitioner's second motion to represent himself, which was made in conjunction with a motion to discharge Petitioner's appointed trial counsel a few days before Petitioner's trial was scheduled to begin. The CCA affirmed the judgment, concluding that the trial court had properly found that when Petitioner had previously represented himself, his tactics, including refiling motions and seeking repeated continuances, were obstreperous, and Petitioner's renewed motion to represent himself made on the eve of trial was undertaken for the purpose of obstruction or delay. (Id. at 11-31.)

The docket and records reflect that in Petitioner's direct appeal, Petitioner was represented by appointed appellate counsel, who on multiple occasions procured augmentations of the record, filed opening and reply briefs, and waived oral argument. A clerk's transcript and a reporter's transcript of 1156 pages were also filed on February 9, 2011.

Petitioner's allegations in his petition for writ of habeas corpus filed in the California Supreme Court and correspondence with his counsel on appeal reveal that Petitioner requested from the trial court his own copy of the transcripts. The trial court denied Petitioner's request because Petitioner's appellate counsel would obtain the transcripts and provide them to Petitioner. (Doc. 1-1, 5-8, 16.)

Appellate counsel declined to forward the transcripts to Petitioner, stating that Petitioner would not serve as counsel's advisor during the appeal; rather, counsel would determine whether legal advice or research was needed. (Id. at 9, 28-29.) The CCA denied Petitioner's petition for writ of habeas corpus, noting in part that Petitioner had appellate counsel, who was sent the record on appeal; further, Petitioner had not shown that the appellate process was an inadequate remedy. (Id. ...


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