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Outa Saechao,*Fn1 v. B. Gower

October 23, 2012

OUTA SAECHAO,*FN1 PETITIONER,
v.
B. GOWER,*FN2 RESPONDENT.



The opinion of the court was delivered by: Kendall J. Newman United States Magistrate Judge

ORDER

I. Introduction

Petitioner is a state prisoner, proceeding without counsel, with an application for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. Both parties consented to proceed before the undersigned for all purposes. See 28 U.S.C. § 636(c).

Petitioner challenges his 2009 conviction on charges of petty theft with a prior, a prior serious felony conviction, and a prior prison term. Petitioner was sentenced to a determinate term of seven years in state prison on December 14, 2009. Petitioner claims the trial court erred in denying petitioner's motion for acquittal, and in failing to instruct the jury on the theory of aiding and abetting, and claims he suffered ineffective assistance of counsel in violation of the Sixth Amendment. Petitioner was sentenced to seven years in state prison. After careful review of the record, this court concludes that the petition should be denied.

II. Procedural History

On December 23, 2008, petitioner was charged with petty theft with a prior, a felony, and fraudulent use of an access card, a misdemeanor. It was further alleged that petitioner suffered a prior serious felony conviction, within the meaning of California's Three Strikes law, and served a prior prison term. (Clerk's Transcript ("CT") at 1-3, 11, 24.)

On May 29, 2009, a jury convicted petitioner of both counts. (CT at 127-30.) In a bifurcated proceeding, petitioner waived his right to a jury trial, and the trial court found true the allegations of a prior conviction and prior prison term. (CT at 151.) On December 14, 2009, petitioner was sentenced to an upper term of three years on count 1, doubled to six years under Three Strikes, plus an additional year for the enhancement, for a total sentence of seven years. (CT at 162, 185-91.) Petitioner was sentenced to time served on count 2. (CT at 186-91.)

Petitioner timely appealed to the California Court of Appeal, Third Appellate District, and the conviction was affirmed on August 22, 2011. (Respondent's Lodged Document ("LD") No. 4.) Petitioner did not file a petition for review in the California Supreme Court.

On October 17, 2011, petitioner filed a petition for writ of habeas corpus in the California Supreme Court, raising the same claims petitioner raised on appeal. (LD No. 5.) The California Supreme Court denied the habeas petition on February 15, 2012, citing In re Waltreus, 62 Cal. 2d 218, 225 (1965). (LD 6.)

Petitioner filed the instant petition on February 24, 2012. (Dkt. No. 1.)

III. Facts*fn3

The opinion of the California Court of Appeal contains the following factual summary:

On June 20, 2008, Mary Meisner inserted her debit card into the automated teller machine (ATM) at Washington Mutual Bank in Redding. After typing in her access code, she made a deposit and then withdrew $100. Two men, later identified as [petitioner] and Kao Saechao, were standing behind Meisner during her transactions. Meisner walked out the bank's door, failing to retrieve her debit card which was still in the ATM. She did not recall pushing the "no" button when prompted on the screen with the question whether she wanted another transaction. Nor did she recall that her card had been ejected. [Petitioner] and Kao immediately walked up to the ATM. [Petitioner] looked at the screen and used the ATM keypad. After withdrawing $300 from Meisner's account, [petitioner] and Kao left the bank. Meisner did not know [petitioner] or Kao and did not give either permission to withdraw money from her account. Kao, who had an account at the bank, did not use his debit card that day to withdraw money from his account.

When Meisner balanced her checkbook, she discovered the $300 withdrawal posted on her account on June 20, realizing that she had left her debit card in the ATM. She reported to the bank and law enforcement that there had been an unauthorized use of her debit card. The bank canceled her debit card and advised that her card had also been used for a $46.01 transaction at a Circle K Store which Meisner had not done.

The police obtained the bank's ATM surveillance photographs and officers identified [petitioner] and Kao. The bank photographs were introduced at trial.

On June 26, 2008, Redding Police Officer Robert Wilson interviewed Kao who had been arrested for an unrelated crime. Kao was very apologetic and wanted to pay the money back. He did not seem scared. Kao explained that when he tried to put his debit card into the ATM the card would not go in and [petitioner] stepped up to help. After the transaction, [petitioner] grabbed the debit card from the machine and they left. In [petitioner's] car, [petitioner] and Kao discussed the debit card and the money taken from the ATM. They discussed returning both but decided not to because they would get into trouble. Kao never stated that he hadtossed the debit card out the window and into the neighbor's trash, contrary to his testimony at [petitioner's] trial.

On September 18, 2008 and again on September 22, 2008, Kao called Officer Wilson but never said that he had lied about [petitioner's] involvement during the June 26, 2008, interview. Kao told the officer that he had been unable to locate [petitioner] in order for the officer to interview him.

A fraud investigator for the bank explained at trial that an ATM would not accept a second debit card if a card was already in the machine. The machine would display a message asking whether another transaction was desired. The maximum amount that could be withdrawn from certain accounts was $400.

Kao testified at [petitioner's] trial. Kao and [petitioner] are cousins. About a week prior to the incident, Kao opened a savings and a checking account at Washington Mutual, depositing about $10 into each. On June 20, 2008, Kao went to the bank with [petitioner] to withdraw money from Kao's account. Kao had never used an ATM. Kao tried to insert his card but words "pop[ped] up." Kao put his card into his pocket. Kao never entered his personal identification number. Kao did not understand the words and asked [petitioner] for help. [Petitioner] asked how much Kao wanted to withdraw. Kao said he wanted $300, the maximum. [Petitioner] operated the ATM and $300 came out as well as the debit card. Kao claimed he took the money and card. Kao believed that $300 had come from his account because he had overdraft protection.

[Petitioner] and Kao went to Kao's home. After [petitioner] left, Kao checked his pocket and found two debit cards. Kao then realized that he had withdrawn money from someone else's account. Scared, Kao threw the debit card out the window and into the neighbor's trash. Kao denied using the Meisner's debit card at Circle K.

Kao denied telling the officer that [petitioner] took Meisner's card. But Kao also testified that he told the officer that [petitioner] must have the card because he (Kao) did not take it out of the machine. Kao stated that he was scared, having been arrested for something else, and lied to the officer because he did not want to get into more trouble. Kao also claimed he lied when he told the officer that he and [petitioner] spent the money on food and "stuff" at the mall. Kao claimed [petitioner] never handled the money or the card. Kao denied telling the officer that he and [petitioner] had discussed the card in [petitioner's] car. Kao claimed he lied when he told the officer that he and [petitioner] decided not to return the money or card because they would get into trouble. Kao later denied telling the officer any such thing. Kao admitted asking the officer during the interview and later in September whether he could pay the money back. Kao admitted that he never told the officer that [petitioner] was not involved. Kao testified that he had lied when he said otherwise to the officer. Kao claimed he had tried to tell the officer after the interview that he had lied. Kao admitted that he never informed the prosecutor that [petitioner] was not involved. In January 2009, Kao told a defense investigator what really happened.

The parties stipulated that [petitioner] had a prior conviction for theft of a firearm and had served a prison term for that conviction.

A defense investigator testified that on January 6, 2009, he spoke with Kao who came to the investigator's office. Kao claimed he was responsible for getting [petitioner] into trouble and gave the investigator the story Kao told at trial. The investigator admitted on cross-examination that the defense never informed the prosecutor of Kao's statements on January 6, 2009. (People v. Saechao, slip op. at 2-5.)

IV. Standards for a Writ of Habeas Corpus

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 Estelle v. McGuire, 502 U.S. 62, 67-68 (1991); Park v. California, 202 F.3d 1146, 1149 (9th Cir. 2000).

Federal habeas corpus relief is not available for any claim decided on the merits in state court proceedings unless the state court's 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.

28 U.S.C. § 2254(d).

Under section 2254(d)(1), a state court decision is "contrary to" clearly established United States Supreme Court precedents if it applies a rule that contradicts the governing law set forth in Supreme Court cases, or if it confronts a set of facts that are materially indistinguishable from a decision of the Supreme Court and nevertheless arrives at different result. Early v. Packer, 537 U.S. 3, 7 (2002) (citing Williams v. Taylor, 529 U.S. 362, 405-06 (2000)).

Under the "unreasonable application" clause of section 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. Williams, 529 U.S. at 413. 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." Id. at 412; see also Lockyer v. Andrade, 538 U.S. 63, 75 (2003) (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.'") (internal citations omitted). "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, 131 S. Ct. 770, 786 (2011).

The court looks to the last reasoned state court decision as the basis for the state court judgment. Avila v. Galaza, 297 F.3d 911, 918 (9th Cir. 2002). If there is no reasoned decision, "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." Harrington, 131 S. Ct. at 784-85. That presumption may be overcome by a showing that "there is reason to think some other explanation for the state court's decision is more likely." Id. at 785 (citing Ylst v. Nunnemaker, 501 U.S. 797, 803 (1991)).

Where the state court reaches a decision on the merits but provides no reasoning to support its conclusion, the federal court conducts an independent review of the record. "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). Where no reasoned decision is available, the habeas petitioner has the burden of "showing there was no reasonable basis for the state court to deny relief." Harrington, 131 S. Ct. at 784. "[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. at 786.

V. Procedural Default

Petitioner raised the instant claims for the first time in his habeas petition filed in the California Supreme Court. (LD No. 5.) Citing in re Waltreus, 62 Cal. 2d 218, 225 (1965),*fn4 the California Supreme Court denied the petition without further comment. (LD No. 6.) Respondent argues that the ruling of the California Supreme Court constitutes a procedural bar which precludes this court from addressing the merits of petitioner's claims. (Dkt. No. 13 at 8.)

State courts may decline to review a claim based on a procedural default. Wainwright v. Sykes, 433 U.S. 72, 81-82 (1977). As a general rule, a federal habeas court "'will not review a question of federal law decided by a state court if the decision of that court rests on a state law ground that is independent of the federal question and adequate to support the judgment.'" Calderon v. United States District Court (Bean), 96 F.3d 1126, 1129 (9th Cir. 1996) (quoting Coleman v. Thompson, 501 U.S. 722, 729 (1991)). The state rule for these purposes is only "adequate" if it is "firmly established and regularly followed." Id. (quoting Ford v. Georgia, 498 U.S. 411, 424 (1991)). See also Bennett v. Mueller, 322 F.3d 573, 583 (9th Cir. 2003) ("[t]o be deemed adequate, the state law ground for decision must be well-established and consistently applied.") The state rule must also be "independent" in that it is not "interwoven with the federal law." Park, 202 F.3d at 1152 (quoting Michigan v. Long, 463 U.S. 1032, 1040-41 (1983)). Even if the state rule is independent and adequate, the claims may be reviewed by the federal court if the petitioner can show: (1) cause for the default and actual prejudice as a result of the alleged violation of federal law; or (2) that failure to consider the claims will result in a fundamental miscarriage of justice. Coleman, 501 U.S. at 749-50.

A reviewing court need not invariably resolve the question of procedural default prior to ruling on the merits of a claim where the default issue turns on difficult questions of state law. Lambrix v. Singletary, 520 U.S. 518, 524-25 (1997);seealsoBusby v. Dretke, 359 F.3d 708, 720 (5th Cir. 2004). Under the circumstances presented here, this court finds that petitioner's claims can be resolved more easily by addressing ...


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