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Gabriel Sills v. Timothy E. Busby

September 18, 2012

GABRIEL SILLS,
PETITIONER,
v.
TIMOTHY E. BUSBY, ET.AL.,
RESPONDENTS.



The opinion of the court was delivered by: Marilyn L. Huff, District Judge United States District Court

ORDER: (1) DENYING PETITIONER'S PETITION FOR WRIT OF HABEAS CORPUS PURSUANT TO 28 U.S.C. § 2254 (2) ADOPTING REPORT AND RECOMMENDATION OF MAGISTRATE (3) DENYING CERTIFICATE OF APPEALABILITY

Petitioner Gabriel Sills ("Petitioner") a state prisoner proceeding pro se, filed a First Amended Petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254 ("petition") on January 31, 2011, seeking relief from his December 2009 conviction. (Doc. No. 5.) Petitioner pled guilty to two felony counts of committing lewd and lascivious acts with a child and one misdemeanor count of possession or control of child pornography, and agreed to a five-year sentence enhancement for an admitted prior conviction carrying a strike consequence. (Lodgment No. 2.) Petitioner did not appeal the judgment of conviction but chose to pursue collateral relief in the state court. (Doc. No. 5; Lodgment Nos. 5, 7, 9.) On March 23, 2011, Respondents unsuccessfully moved to dismiss the petition on the grounds that it was untimely.

(Doc. No. 10.) Respondents then filed an Answer opposing any habeas relief and Petitioner filed a Traverse. (Doc. No. 11, 15.) The magistrate judge issued a Report and Recommendation on June 15, 2012 recommending that the Court deny the Petition. (Doc. No. 19.) Petitioner filed an objection to the Report and Recommendation on July 3, 2012. (Doc. No. 20.) For the following reasons, the Court adopts the Report and Recommendation and denies the petition.

Background

On April 26, 2008, Petitioner was charged with four counts of lewd and lascivious acts on a child under the age of 14 years in violation of Cal. Penal Code § 288(a), with special allegations elevating the sentencing range for each count to 25 years to life, and with 100 separate counts for possession of computer images depicting persons under the age of 18 years of age engaged in or simulating sexual conduct, in violation of Cal. Penal Code § 311.11. (Lodgment No. 1 at 1-8.) The complaint also identified a March 20, 2000 conviction sustained in Medford, Oregon for sexual abuse that qualified as a first serious felony and strike prior under Cal. Penal Code § 667(a)(1). (Id. at 31.)

On October 31, 2008, Petitioner pled guilty to felony counts 1 and 2, and misdemeanor count 5. (Lodgment No. 2 at 1.) On the plea form, Petitioner checked boxes stating that he was entering his "plea freely and voluntarily," gave up his right to appeal "issues related to strike priors and any sentence stipulated," and acknowledged his understanding that the sentencing judge could consider his "prior criminal history and the entire factual background of the case" when imposing sentence. (Id. at 1-2.) He also identified his felony sexual abuse strike prior and recorded his understanding that the total agreed sentence was for a "5 year serious prior & strike stip of 18 years." (Id.) Pursuant to the plea agreement, the Superior Court sentenced Petitioner to the stipulated 18-year term on December 19, 2008.

Petitioner argues that his guilty plea is not valid because his admission of the felony strike prior was not intelligent. (Doc. No. 5) Next, he contends that the use of his prior convictions to enhance his sentence is unconstitutional because it was not a "conviction" and it was excessive. Id. He also asserts that he received ineffective assistance of counsel. Id.

Finally, he claims that he was denied access to courts in violation of his constitutional right to a speedy trial. Id. He raised the same claims in petitions for habeas corpus relief filed in the San Diego Superior Court, the California Court of Appeal, and the California Supreme Court. (Lodgment Nos. 5, 7, and 9.) All three courts denied his petition, with the Court of Appeal order of April 27, 2010 as the last reasoned state court opinion to address the federal issues. (Lodgment No. 8, In re Sills, case No. D056997.)

Analysis

I. Standard of Review

A federal court reviews an application for a writ of habeas corpus on behalf of a person in custody pursuant to the judgment of a State Courtonly on the ground that "he is in custody in violation of the Constitution or laws or treaties of the United States." 28 U.S.C. § 2254(a). The Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA") governs the review of the petition in this case. Lindh v. Murphy, 521 U.S. 320, 322-23 (1997). AEDPA imposes a "'highly deferential standard for evaluating state-court rulings,'"requiring that "state court decisions be given the benefit of the doubt." Woodford v. Visciotti, 537 U.S. 19, 24 (2002), (quoting Lindh, 521 U.S. at 333 n. 7). Section 2254(d) bars a federal court from relitigating any claim "adjudicated on the merits" in state court unless the result "was contrary to, or involved an unreasonable application of clearly established federal law, as determined by the Supreme Court of the United States" or "was based on an unreasonable determination of the facts in light of the evidence presented in the state court proceeding." 28 U.S.C. § 2254(d)(1)-(2). "[R]review under 28 U.S.C. § 2254(d)(1) is limited to the record that was before the state court that adjudicated the claim on the merits." Cullen v. Pinholster, __ U.S. __, 131 S.Ct. 1388, 1398 (2011).

A decision is "contrary to" clearly established precedents if it "applies a rule that contradicts the governing law set forth in our cases," or if it "confronts a set of facts that are materially indistinguishable from" a Supreme Court decision but reaches a different result. Early v. Packer, 537 U.S. 3, 8 (2002)(quoting Williams v. Taylor, 529 U.S. 362, 405-406).A decision is "an unreasonable application of clearly established federal law"if the state court "correctly identifies the governing legal rule but applies it unreasonably to the facts of a particular prisoner's case." Williams, 529 U.S. at 407-408. The decision must be more than just "incorrect or erroneous;" it "must [be] objectively unreasonable." Wiggins v. Smith, 539 U.S. 510, 520-21 (2003). The petitioner must show that "'there was no reasonable basis' for the state high court's decision."Harrington v. Richter, __ U.S. __, 131 S.Ct. 770, 784 (2011). These standards are applied to "the last reasoned decision" by a state court on the merits of the federal constitutional claims raised by a state prisoner seeking relief from sentence. Campbell

v. Rice, 408 F.3d 1166, 1170 (9th ...


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