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Andre R. Scott v. Gary Swarthout

July 10, 2012


The opinion of the court was delivered by: Carolyn K. Delaney United States Magistrate Judge


Petitioner is a state prisoner and has filed a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254. Presently before the court is respondent's October 31, 2011 motion to dismiss these habeas proceedings. (See Dkt. No. 31.) Respondent makes three arguments in the motion; specifically: (1) the petition is untimely; (2) petitioner failed to exhaust Claim III of his amended habeas petition; and (3) petitioner failed to raise cognizable federal habeas issues with respect to Claims II, IV, VI and VII of the amended federal habeas petition. Petitioner, proceeding through counsel, filed a response in opposition to respondent's motion to dismiss and respondent thereafter filed a reply. (See Dkt. Nos. 37, 42.) For the following reasons, it is recommended that the motion to dismiss be granted due to untimeliness.


A. State Court Proceedings

Petitioner was convicted in the Sacramento County Superior Court of three counts of robbery in the second degree in violation of CAL. PENAL CODE § 211 and of being a felon in possession of a firearm in violation of CAL. PENAL CODE § 12021(a). (See Resp't's Lodged Doc. 1.)*fn1 Several sentencing enhancements were also found to be true. Petitioner received a sentence of 116 years and eight months to life imprisonment on September 12, 2003.

Petitioner appealed his judgment and conviction. On July 20, 2005, the California Court of Appeal, Third Appellate District affirmed the judgment. (See Resp't's Lodged Doc. No. 2.)

Petitioner then filed a petition for review with the California Supreme Court. (See Dkt. No. 4.) On November 16, 2005, the California Supreme Court granted the petition for review and stated the following:

The issue to be briefed and argued is limited to the following: Did the trial court err in instructing the jury that all employees have constructive possession of their employer's property during a robbery, and, if so, what is the proper standard for determining whether an employee has constructive possession of the employer's property during a robbery?

(Resp't's Lodged Doc. No. 5.) On February 19, 2009, the California Supreme Court affirmed the decision of the California Court of Appeal, Third Appellate District. (See Resp't's Lodged Doc. No. 6.)

Petitioner next filed a state habeas petition in the Sacramento County Superior Court on May 16, 2010.*fn2 (See Resp't's Lodged Doc. No. 7.) On July 12, 2010 the Sacramento County Superior Court denied the state habeas petition by stating the following:

Petitioner challenges his 2003 conviction for multiple counts of armed robbery. He contends that his counsel was ineffective because he declined to call Diane Reveles, petitioner's then girlfriend, as a witness at trial.

In considering a petition for writ of habeas corpus, a court must determine whether petitioner has stated a prima facie claim for relief and whether the claims are procedurally barred. (People v. Romero (1994) 8 Cal.4th 728, 737.) The petitioner bears the burden of pleading sufficient grounds for relief. (People v. Duvall (1995) 9 Cal.4th 464, 474.) To satisfy the initial burden of pleading, the petition should (1) state fully and with particularity facts on which the relief is sought, and (2) include copies of reasonably available documentary evidence supporting the claims. (Id.)

a. The Petition is Barred Because it is Untimely

Petitioner bears the burden of showing that his petition is timely. (In re Robbins (1998) 18 Cal.4th 770, 780.) He must allege with specificity when information in support of his claim was discovered and why it should not have been discovered sooner. (Id.) Whether a petitioner has substantially delayed filing his petition is measured from the time the petitioner becomes aware of the grounds on which he seeks relief, which can be as early as the date of his conviction. (In re Clark (1993) 5 Cal.4th 750, 756, fn. 5.)

Here, petitioner was convicted in 2003. As discussed below, petitioner was aware of the facts on which he bases his ineffective assistance of counsel claim at trial, and his other claim of prosecutorial misconduct stems from challenges to a warrant that his counsel raised at trial. Petitioner does not, and indeed cannot, show that "the facts upon which [he] relies were not known to him and could not in the exercise of due diligence have been discovered by him at any time substantially earlier than the time of his motion for the writ." (In re Clark, supra, 5 Cal.4th at 779 (emphasis in original).) Accordingly, the petition is untimely.

An untimely habeas corpus petition is barred from habeas corpus review unless (1) petitioner is presenting newly-discovered claims after demonstrating due diligence, or (2) it alleges facts, which if proven, would establish that a fundamental miscarriage of justice occurred as a result of the proceedings leading to conviction. (In re Robbins, supra, 18 Cal.4th at 811-12, 812 fn.32; In re Clark, supra, 5 Cal.4th 750, 774-75.) Only the following represent a "fundamental miscarriage of justice for these purposes: (1) an error of constitutional magnitude led to a trial that was so fundamentally unfair that absent the error, no reasonable judge or jury would have convicted the petitioner, (2) the petitioner is actually innocent of the crime or crimes of which the petitioner is convicted, (3) the death penalty was imposed by a sentencing authority which had such a grossly misleading profile of the petitioner before it that absent the trial error or omission, no reasonable judge or jury would have imposed the sentence of death, or (4) petitioner was convicted or sentenced under an invalid statute. (In [re] Robbins, supra, 18 Cal.4th 770, 811-812, 812 fn.32, In re Clark, supra, 5 Cal.4th 750, 787-98.) None of the exceptions to the procedural bars for untimely petitions apply here, and the petition is denied on these grounds.

b. The Petition Fails to Plead a Prima Facie Claim for Relief Even if the court were to consider the merits of petitioner's claims, he has failed to state a prima facie claim for relief.

Petitioner first contends that he received ineffective assistance of counsel because counsel did not present the testimony of potential witness Diane Reveles. Ms. Reveles was petitioner's girlfriend who lived with him at the time of the robbery and was present when police arrived at petitioner's apartment the morning of the robbery.

Petitioner argues that he did not commit the offense. He maintains that co-defendants Kenney and Mamaril visited his apartment the evening before the robbery, and that Mamaril stayed the evening. He claims that he allowed Kenney to borrow his car, that Kenney returned to the apartment early the next morning, and Kenney then jumped out of the bedroom window when he heard the police sirens. Petitioner claims that he testified to this effect, and argues that Ms. Reveles testimony would have corroborated his at trial. He also attaches to the petition a declaration from Ms. Revel[e]s stating that petitioner did not leave the house during the morning of the robbery.

For petitioner to show ineffective assistance of counsel, he must first "show counsel's performance was 'deficient' because his or her 'representation fell below an objective standard of reasonableness . . . under prevailing professional norms." (In re Harris, supra, 5 Cal.4th at 833 (citing Strickland v. Washington (1984) 466 U.S. 668 and People v. Pope (1979) 23 Cal.3d 412).) In evaluating the sufficiency of counsel's representation, courts must be highly deferential. A petitioner claiming ineffective assistance of counsel must overcome a presumption that, considering all of the circumstances, counsel's actions "might be considered sound trial strategy." (Strickland, supra, 466 U.S. at 689.) A failure to call certain witnesses in a criminal trial will usually be deemed "trial tactics as to which [reviewing courts] will not ordinarily exercise judicial hindsight." (People v. Beagle (1972) 6 Cal.3d 441, 458 (superseded by statute on other grounds); see also People v. Bolin (1998) 18 Cal.4th 297, 333 (noting that ...

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