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Jerome Ontario Dosty v. Gary Swarthout

June 29, 2012

JEROME ONTARIO DOSTY PETITIONER,
v.
GARY SWARTHOUT
RESPONDENT.



ORDER AND FINDINGS & RECOMMENDATIONS

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 on September 15, 2006, in the Sacramento County Superior Court on charges of vehicle theft, receiving a stolen vehicle, felon in possession of a firearm, carrying a concealed weapon, resisting arrest, receiving stolen property, robbery, false imprisonment and burglary. He seeks federal habeas relief on the ground that his sentence violates his rights to due process and a jury trial. Upon careful consideration of the record and the applicable law, the undersigned will recommend that petitioner's application for habeas corpus relief be denied.

FACTUAL BACKGROUND

In its unpublished memorandum and opinion affirming petitioner's judgment of conviction on appeal*fn1 , the California Court of Appeal for the Third Appellate District provided the following factual summary:

Most of the charges stem from an incident that occurred in April 2005, in which two assailants gained entrance to the 70-year-old victim's home by ringing her doorbell at 10:15 at night. On entering, the men hit the victim and forced her to the floor. While one of the men held the victim down, the other man ransacked the house. The assailants stole the victim's truck and several other items. One week later, defendant was observed by a sheriff's deputy driving the victim's truck at a high speed, after which he was apprehended while attempting to flee on foot. During the foot pursuit, the defendant appeared to grab something from his waistband, and a loaded, semiautomatic handgun was later discovered in the path where the pursuit had occurred. Items taken from the victim's home during the burglary were located in the truck, and other items were removed from defendant's bedroom in his sister's apartment. When the victim was brought to the scene, she observed that defendant met the description of one of the two intruders in terms of his body type and hair, although she had not seen his face at the time of the offense.

In a separate incident in March 2005, numerous items were removed from a house owned by a different victim. A rear window of the house had been broken and was the suspected point of entry into the residence. Latent fingerprints from the window were determined to belong to defendant, whom the victim did not know and had not given permission to enter the residence. (Opinion at 2-3)

ANALYSIS

I. Standard 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 ...


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