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Robert Hayden Nesbitt, Jr v. Francisco Jacquez

September 5, 2012

ROBERT HAYDEN NESBITT, JR., PETITIONER,
v.
FRANCISCO JACQUEZ, WARDEN, RESPONDENT.



The opinion of the court was delivered by: Gregory G. Hollows United States Magistrate Judge

FINDINGS & RECOMMENDATIONS

I. Introduction

Although petitioner is currently proceeding pro se in this application for writ of habeas corpus, he was appointed counsel, who fully briefed the issues, after which she moved to withdraw at petitioner's request, which motion was granted. Petitioner, after pleading no contest to ten counts of second degree robbery, was sentenced to a term of 133 years to life under the "three strikes law" in Solano County Superior Court on December 9, 2005. Amended Petition (AP) at docket # 4, pp. 1, 8; Answer, Exhibit (Ex.) B, Reporter's Transcript (RT), December 9, 2005, pp. 47-48. Petitioner sets forth in the operative amended petition (filed while petitioner proceeded pro se), the following as his sole challenge to the sentence: "the state trial court and court of appeal unreasonably applied established federal constitutional law when it decided that petitioner was not entitled to a fair sentencing hearing." Id., at 4. In supplemental points and authorities submitted by then-counsel for petitioner, the single claim was more precisely articulated as: "the sentencing court violated his right to due process when it considered unreliable hearsay in a juvenile probation report," citing Gardner v. Florida, 430 U.S. 349, 358, 97 S.Ct. 1197,1204 [] (1977) ("it is now clear that the sentencing process, as well as the trial itself, must satisfy the requirements of the Due Process Clause"); Ohio v. Roberts, 448 U.S. 56, 66, 100 S.Ct. 2531, 2539 [] (1980)(hearsay statement of unavailable witness "admissible only if it bears adequate 'indicia of reliability'").*fn1 Petitioner's Points & Authorities (Ptnr's. P. & A. at docket # 44, p. 1. After a careful review of the record, the court recommends that the petition be denied.

II. AEDPA

The statutory limitations of federal courts' power to issue habeas corpus relief for persons in state custody is provided by 28 U.S.C. § 2254, as amended by the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA). The text of § 2254(d) states:

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.

As a preliminary matter, the Supreme Court has recently held and reconfirmed "that § 2254(d) does not require a state court to give reasons before its decision can be deemed to have been 'adjudicated on the merits.'" Harrington v. Richter, 131 S.Ct. 770, 785 (2011).

Rather, "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." Id. at 784-785, citing Harris v. Reed, 489 U.S. 255, 265, 109 S.Ct. 1038 (1989) (presumption of a merits determination when it is unclear whether a decision appearing to rest on federal grounds was decided on another basis). "The 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.

The Supreme Court has set forth the operative standard for federal habeas review of state court decisions under AEDPA as follows: "For purposes of § 2254(d)(1), 'an unreasonable application of federal law is different from an incorrect application of federal law.'" Harrington, supra, 131 S.Ct. at 785, citing Williams v. Taylor, 529 U.S. 362, 410, 120 S.Ct. 1495 (2000). "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." Id. at 786, citing Yarborough v. Alvarado, 541 U.S. 652, 664, 124 S.Ct. 2140 (2004).

Accordingly, "a habeas court must determine what arguments or theories supported or . . could have supported[] the state court's decision; and then it must ask whether it is possible fairminded jurists could disagree that those arguments or theories are inconsistent with the holding in a prior decision of this Court." Id. "Evaluating whether a rule application was unreasonable requires considering the rule's specificity. The more general the rule, the more leeway courts have in reaching outcomes in case-by-case determinations.'" Id. Emphasizing the stringency of this standard, which "stops short of imposing a complete bar of federal court relitigation of claims already rejected in state court proceedings[,]" the Supreme Court has cautioned that "even a strong case for relief does not mean the state court's contrary conclusion was unreasonable." Id., citing Lockyer v. Andrade, 538 U.S. 63, 75, 123 S.Ct. 1166 (2003).

The undersigned also finds that the same deference is paid to the factual determinations of state courts. Under § 2254(d)(2), factual findings of the state courts are presumed to be correct subject only to a review of the record which demonstrates that the factual finding(s) "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." It makes no sense to interpret "unreasonable" in § 2254(d)(2) in a manner different from that same word as it appears in § 2254(d)(1) -- i.e., the factual error must be so apparent that "fairminded jurists" examining the same record could not abide by the state court factual determination. A petitioner must show clearly and convincingly that the factual determination is unreasonable. See Rice v. Collins, 546 U.S. 333, 338, 126 S.Ct. 969, 974 (2006).

The habeas corpus petitioner bears the burden of demonstrating the objectively unreasonable nature of the state court decision in light of controlling Supreme Court authority.

Woodford v. Viscotti, 537 U.S. 19, 123 S. Ct. 357 (2002). Specifically, the petitioner "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, supra, 131 S.Ct. at 786-787. "Clearly established" law is law that has been "squarely addressed" by the United States Supreme Court.

Wright v. Van Patten, 552 U.S. 120, 125, 128 S.Ct. 743, 746 (2008). Thus, extrapolations of settled law to unique situations will not qualify as clearly established. See e.g., Carey v. Musladin, 549 U.S. 70, 76, 127 S.Ct. 649, 653-54 (2006) (established law not permitting state sponsored practices to inject bias into a criminal proceeding by compelling a defendant to wear prison clothing or by unnecessary showing of uniformed guards does not qualify as clearly established law when spectators' conduct is the alleged cause of bias injection). The established Supreme Court authority reviewed must be a pronouncement on constitutional principles, or other controlling federal law, as opposed to a pronouncement of statutes or rules binding only on federal courts. Early v. Packer, 537 U.S. 3, 9, 123 S. Ct. 362, 366 (2002).

The state courts need not have cited to federal authority, or even have indicated awareness of federal authority in arriving at their decision. Early, supra, 537 U.S. at 8, 123 S.Ct. at 365. Where the state courts have not addressed the constitutional issue in dispute in any reasoned opinion, the federal court will independently review the record in adjudication of that issue. "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 v. Thompson, 336 F.3d 848, 853 (9th Cir. 2003).

Finally, if the state courts have not adjudicated the merits of the federal issue, no AEDPA deference is given; the issue is reviewed de novo under general principles of federal law.

James v. Ryan, __ F.3d __, 2012 WL 639292 *18-*19 (9th Cir. 2012).

III. Background

As this court has previously stated in adjudicating petitioner's discovery motion in this matter, "the undersigned has reviewed the entire Romero motion and underlying proceedings, including the testimony, argument and sentencing, as well as petitioner's copy of the 1991 juvenile probation report at issue." See Order, p. 7, filed on January 28, 2011 at docket # 34. In doing so, this court's independent review of the record has previously confirmed the 2007 state appellate court summary of the background to the Romero motion and its accuracy with regard to the witness testimony and other evidence presented at the hearing, as well as the argument and decision on the motion. Id. In the unpublished decision, the state appellate court correctly summarized the procedural background, as follows:

Defendant was charged with and eventually pleaded no contest to 10 counts of second degree robbery (Pen.Code,1 § 211; counts I and III through XI), being a felon in possession of a firearm (§ 12021, subd. (a)(1); count II), and conspiracy to commit robbery (§§ 182, subd. (a)(1), 211; count XII). The robberies all occurred between May 23 and July 7, 1997. Defendant was further charged with and admitted the following special allegations: (1) as to count I, that he personally used a firearm (§§ 1203.06, subd. (a)(1), 12022.5); (2) as to counts I and III through XI, that he had a prior serious felony conviction (§ 667, subd. (a)(1)); and (3) as to counts I through XII, that he had six prior strike convictions (§ 667, subds.(b)-(I)), all of which were for robbery (§ 211).

People v. Nesbitt, 2007 WL 2110983 *1 (Cal. Ct. App. July 24, 2007)(unpub. op.).

The state appellate court also summarized the factual background of the 1997 offenses "from the presentence report:"

Counts I and II: On May 23, 1997, defendant entered a Round Table Pizza restaurant, grabbed a $20 bill off the counter, and asked the employee, "Are you in charge?" He told the employee to open the safe, and said he had a gun. Defendant asked again, "Are you in charge?" and said, "I'm fixin' to rob you." The employee falsely told defendant that some customers sitting at a table were the restaurant's managers and owners. Defendant walked the employee over to the table. After a brief conversation with the customers, defendant said, "I'm tired of this, I want your fuckin' money." When defendant stepped behind the employee the two began to grapple and the employee saw that defendant had a large chrome revolver with the hammer cocked back, so he let go of defendant. The employee told defendant he would give him the change and asked him not to shoot him because "he had a kid." Defendant, holding the gun and pointing it at the employee, fled the store. The handgun described by witnesses was recovered later that day after defendant fled from police. It had five live rounds and one expended round in the cylinder.

Count III: On May 28, 1997, defendant entered a Bank of the West, approached a teller, and stated, "I want to make a withdrawal. Give me all the money in the register. You have 15 seconds or I'll blow your fucking brain out." He took the money, placed it in a black bag, and fled. The bank's loss was $6,215.

Counts IV through VII: On June 20, 1997, defendant and a co-defendant, Adam Powell, entered a Home Savings Bank branch and approached the teller window. Defendant told the teller he wanted to make a withdrawal. He took his backpack off, placed it on the counter, and stated, "Give me you[r] fucking money." As the teller emptied her drawer, defendant told her, "[You're] running out of time," and "[h]urry up." Defendant ordered a second teller to do the same. During these events, defendant was holding something in his hand that was covered by a white handkerchief. While the second teller gave defendant money, Powell jumped over the counter and robbed two other tellers from behind the counter. Both men then fled the scene. The bank's total loss was $10,194.17.

Counts VIII and IX: On June 25, 1997, defendant and Powell entered the Surety Bank. Defendant placed a bag on the teller counter, and told the teller, "Give me all your money." When the teller said she was afraid, defendant repeated his demand in a louder voice, vaulted over the counter, and again shouted, "Give me all your money." The teller pulled money from her drawer and defendant put it in his bag. After walking over to Powell, defendant returned to the same teller and demanded more money. The teller gave him additional money from merchant courier bags she had previously been counting. Defendant and Powell fled the scene. The bank's total losses had not been determined at the time the sentencing report was prepared. According to an employee, the robbery had a strong and lasting emotional impact on the tellers, especially due to defendant and Powell jumping over the counter and taking control of their workspace.

Counts X and XI: On July 7, 1997, defendant and Powell entered the same Bank of the West branch defendant had robbed on May 28, approached the teller windows, vaulted into the teller area, and demanded money from the tellers. Witnesses reported that the robbers said, "It's all right, just relax, give me all your money," and "Hurry up, you're taking too long." Defendant and Powell fled the scene with $22,023.16.

Count XII: This conspiracy count listed nine overt acts relating to counts IV through XI.

People v. Nesbitt, 2007 WL 2110983 at *1-*2 (Cal. Ct. App. July 24, 2007); see also, Pre-Sentence Report, Respondent's Lodged Documents, Exhibit A, Clerk's Transcript (CT) at 767-773.

The state appellate court concisely and accurately summarizes the background of the Romero motion at issue herein:

[] The Romero Motion

After protracted pretrial proceedings, defendant pleaded no contest to all charges and admitted the special allegations on October 6, 2003. The parties agreed there were no promises regarding sentencing and that defense counsel would be filing a Romero motion. Defendant acknowledged that he could receive a maximum sentence of 360 years to life in prison. Immediately after filing his Romero motion, defendant moved to set aside his plea. At defendant's request, a second attorney was appointed to review his plea agreement and Romero motion. In February 2005, defendant's second counsel, Robert Fracchia, advised the court that defendant would not pursue his motion to withdraw his plea, but that he wished to submit supplementary materials in support of his Romero motion. Defendant thereafter filed several supplemental documents in support of his Romero motion, including: a psychosocial history prepared by Dr. Gretchen E. White, a clinical psychologist retained by the defense; defendant's own report as to his personal development during the period of his incarceration; and a declaration by a county official as to defendant's conduct at the jail.

People v. Nesbitt, 2007 WL 2110983 at *3 (Cal. Ct. App. July 24, 2007); see also, respondent's Lodged Document, Exhibit B, Reporter's Transcript (RT), October 6, 2003; RT, November 15, 2004; RT, February 10, 2005; RT, July 29, 2005; RT, Aug. 5, 2005; respondent's Lodged Documents, Ex. A, Clerk's Transcript (CT) (vol II), pp. 653- 671, 673-690, 692-693.

The record shows that petitioner's counsel, through the testimony of a Dr. Gretchen White, who prepared a psychosocial history for petitioner,*fn2 and through the testimony of petitioner's mother that presented petitioner as a victim of severe abuse, both physical and psychological, by his parents, especially his father. Ptnr. P&A, p. 2; respondent's Ex. B, RT, July 29, 2005 & RT, August 5, 2005. Under cross-examination, respondent questioned Dr. White's analysis based, in part, on reports of other professional evaluators in the record.*fn3

Petitioner also presented evidence of rehabilitation and of his having matured through the testimony of several Solano County Sheriff's Department jail officers. RT, July 29, 2005.

As the state appellate court stated in more detail with regard to petitioner's psychosocial history:

On July 29, August 5, and August 26, 2005, the trial court heard evidence and argument on defendant's Romero motion. Dr. White testified about her written psychosocial history, which included allegations that defendant had suffered extreme physical and psychological abuse at the hands of his father. According to the report, defendant was beaten with a belt a minimum of three times per week from a very early age. He would be punished for making extremely minor mistakes, such as dropping food on the floor.

Defendant had to have permission from his father for everything, including getting a glass of water. He was so afraid of his father that he would sometimes drink water from the toilet rather than approach his father. Defendant was constantly under restrictions from his parents to the point that he was unable to make friends or play team sports. Due to the father's financial irresponsibility, defendant and his brother also had few toys and could not afford to participate in organized activities outside the home such as the Boy Scouts. At about six years of age, defendant began running away. According to defendant's mother, defendant ran away at least twice a year until he was about 14 years old, and would stay away for one to three days, sometimes staying in parks and libraries.

Both parents were career United States Air Force personnel and military mores had a significant effect on their thinking. According to defendant's father, they tended to see things in "black and white" terms. The family also moved frequently, increasing defendant's social isolation and resulting in dramatic changes in the socioeconomic and racial make-ups of the neighborhoods in which he lived. According to Dr. White, the combination of factors in defendant's upbringing caused him to internalize a very punitive attitude toward himself, and to exhibit excessive anger and strong tendencies toward impulsivity as well as self-sabotage. On the latter point, she opined that when defendant was on the verge of succeeding he would assume that since his success would not affect his parents' attitude toward him he would "get back at them by messing up."

Dr. White's psychosocial history of defendant also referenced a serious automobile accident that occurred when defendant was 15 years old. He was riding in a car with schoolmates that flipped over three times. Defendant was thrown from the vehicle and suffered severe injuries and a period of apparent depression. It was shortly after this accident that defendant committed the armed robbery for which he was sent to Rites of Passage.

Defendant's mother testified about the beatings to which defendant had assertedly been subjected, his pattern of running away from home, the restrictions and controls placed on him by his father, and the physical and emotional effects of the car accident that occurred when he was 15. His father was present at the hearing but did not testify. According to Dr. White, when she interviewed defendant's father he minimized the alleged abuse that defendant had experienced. She never asked him about the mother's specific claims of abuse, such as the regular beatings and extreme strictness over minor infractions.

People v. Nesbitt, 2007 WL 2110983 *3-*4 (Cal. Ct. App. July 24, 2007).*

As to testimony regarding petitioner's "transformation while in custody," the state appellate court summarized the record as follows:

Other witnesses testified about defendant's personal growth during his incarceration in the county jail and about the positive effect he had on other inmates. [] Stanley Maynard met defendant through his stepson, who was defendant's cellmate. Maynard found him to be sincere, intelligent, and very supportive of others. Former inmate Leroy Comier testified that defendant helped him grow, mature mentally, take responsibility for his criminal conduct, and better himself. Philip Norris had known defendant for about 11 years, dating from defendant's CYA confinement. He had seen tremendous changes in defendant, and had turned to defendant often for advice and guidance.

Dr. Michael Castell had a Ph.D. in counseling psychology and had worked in the mental health field for 30 years. At the time of his testimony, he had been running inmate programs for the Solano County Sheriff's Office for eight years. He had his first counseling session with defendant at the end of 2000. He watched defendant go from being in an isolation unit for disciplinary reasons to being a model prisoner who was constantly striving to better himself in terms of his thinking, education, and behavior. According to Castell, defendant had read hundreds of books on serious subjects and was actively trying to grapple with issues of moral development and personal authenticity. He had taken a leadership role in the prison's life skills program for inmates. Castell had heard from several inmates that defendant helped them stay out of trouble.

People v. Nesbitt, 2007 WL 2110983 *4.

IV. Claim and Analysis

Claim - Due Process Violation at Sentencing *fn4

Petitioner challenges his sentencing hearing as unfair because the sentencing judge took judicial notice of, and relied on, evidence in a juvenile probation report petitioner characterizes as unreliable.*fn5 Petitioner's Points & Authorities at docket # 44, p. 1.

In his pro se amended petition, petitioner summarized the factual support of his claim as:

The trial court's erroneous taking of judicial notice of the statements within the 1991 probation report without affording the defense an[] opportunity to contest the reliability of the improperly notice[d] statements, eviscerated the defense presentation and denied his right to fair sentencing, thus violating his constitutional rights.

AP, p. 4.

Petitioner raises three subclaims in his pro se amended petition:

1) issue not waived where trial counsel requested continuance of the sentencing hearing to address the court's improperly noticed matters and court ruled on the substantive issue of judicial notice;

2) trial court erred by taking judicial notice of hearsay statements contained in the juvenile probation report and relying on them as true in denying petitioner's Romero motion;

3) trial court's improper exercise of judicial notice of statements where statements accepted as true prejudiced petitioner and violated his constitutional rights by eviscerating defense's ability to make a presentation in support of the Romero motion and to contest the court's findings. AP, pp. 19, 21, 25.

1) Issue not waived where trial counsel requested continuance of the sentencing hearing to address the court's improperly noticed matters and court ruled on the substantive issue of judicial notice Petitioner concedes that his trial counsel neither objected to proceeding with the Romero hearing after the trial judge alerted counsel to the court's review of the subject [1991] juvenile probation report nor objected to use of the probation report at the hearing's conclusion.

AP, p. 19. However, petitioner asserts, his counsel's failure to object at that point did not result in a waiver of the issues where counsel raised the impropriety to the court thereafter "and the court addressed the merits of the objections." Id. Petitioner cites several California cases in an effort to shore up his position: People v. Wagoner, 89 Cal. App.3d 605, 616[, 152 Cal. Rptr. 639] [Ct. App. 1979 ]("[a]bsent an objection at the trial level to the contents of the probation report, a defendant is deemed to have waived this issue"), citing People v. Medina, 78 Cal. App.3d 1000, 1007[, 144 Cal. Rptr. 581] [Ct. App. 1978] ("[u]nless the record shows an objection to allegedly improper entries and an erroneous ruling thereon, the issue is simply not available on appeal")*fn6 ; People v. Evans, 141 Cal. App.3d 1019[, 1021][,190 Cal. Rptr. 633] [(Ct. App. 1983)], [1983]

("any objection to the contents of a probation report or other material relied on by the sentencing court must be made in the superior court or is waived")*fn7 ; People v. Santana, 134 Cal. App. 3d 773[, 785][, 184 Cal. Rptr. 733] ([Ct. App.] 1982) (appellant cannot raise on appeal an argument regarding a failure of court or probation officer to give admonitions as to constitutional rights waived by admissions as to prior convictions, etc., which was not raised at sentencing hearing).

Petitioner points to the Santana court's explaining (in dicta) that had the point been raised below: the trial court could have done several things including (1) continuing the sentencing hearing to permit the district attorney to bring in authenticated official reports of the convictions and imposition of probation and parole as prima facie evidence of these events; and (2) permitting appellant at the continued hearing to bring in evidence to refute the reports of convictions, etc.

Santana, 134 Cal. App. 3d at 785, 184 Cal. Rptr. 733.

Petitioner contends that following the court's ruling denying the Romero motion, his counsel, "who had not read the probation report until after the court made her ruling," included in a motion to continue the sentencing hearing "a thorough discussion of the law on judicial notice and the impropriety of the court's action." AP, p. 20. Petitioner argues that neither of his attorneys knew precisely what the court would be taking judicial notice of, meaning the alleged "hearsay statements" in the probation report, and, because the court addressed the merits of his counsel's objection at the sentencing hearing, the issue was litigated and in the record for adjudication by the state appellate court. Id., at 20-21.

The record indicates that the sentencing court heard evidence on petitioner's Romero motion on July 29, 2005, and August 5, 2005. Answer (dkt # 46-1), p. 12,*fn8 respondent's Ex. B RT, July 29, 2005 & RT, August 5, 2005. Petitioner argues that at the close of the evidence presented at the Romero hearing, wherein the petitioner had presented evidence both of severe physical and psychological abuse by his parents, particularly, his father, and substantial evidence of his rehabilitation, the judge's words indicated she had not decided to deny the motion based only on petitioner's criminal history, pointing out that she stated at that time: "I think the Romero motion is distinctive...the court at this time doesn't know what the outcome is going to be on the Romero motion." Ptnr. P&A (dkt # 44), p. 3, quoting the Aug. 5, 2005 RT at p. 98.*fn9 Petitioner contends that later the sentencing court relied on materially inaccurate information at the sentencing hearing. Ptnr. P&A, pp. 2-3. The court and the parties all addressed the motion on Aug. 26, 2005, and the prosecutor, at the beginning, sought judicial ...


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