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Theron Kenneth Holston v. Matthew Cate

IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF CALIFORNIA


December 13, 2012

THERON KENNETH HOLSTON, PETITIONER,
v.
MATTHEW CATE, SECRETARY, CALIFORNIA DEPARTMENT OF CORRECTIONS AND REHABILITATION, RESPONDENT.

The opinion of the court was delivered by: James K. Singleton, Jr. United States District Judge

MEMORANDUM DECISION and ORDER [Re: Motions at Docket Nos. 31 and 33]

Theron Kenneth Holston, a state prisoner appearing pro se, filed a Petition for a Writ of Habeas Corpus under 28 U.S.C. § 2254. Holston is currently in the custody of the California Department of Corrections and Rehabilitation, on parole. Respondent has answered, and Holston has replied. At Docket No. 31 Holston has requested the appointment of counsel, and at Docket No. 33 a request for immediate release on his own recognizance.

I. BACKGROUND/PRIOR PROCEEDINGS

Holston was charged in an information of second-degree burglary (Penal Code § 211) and misdemeanor assault (Penal Code § 245).*fn1 In addition as to the second-degree burglary charge, the information alleged that Holston had served four prior prison terms (Penal Code § 667.5(b)), including possession of a controlled substance (Cal. Health & Safety Code § 11377), possession of an incendiary device (Penal Code § 453(b)), obstructing an executive officer (Penal Code § 69), and indecent exposure (Penal Code § 314.1). On December 1, 2009, Holston entered into a negotiated plea agreement whereby he pleaded no contest to a substituted petty theft charge with a prior (Pen. Code § 666) on the burglary count, admitted a prior theft-related conviction, and admitted two prison priors, possession of an incendiary device (Penal Code § 453(b)) and obstructing an executive officer (Penal Code § 69). The misdemeanor assault charge and the other two priors were dismissed. The same day, the Yuba County Superior Court sentenced Holston in accordance with the negotiated plea agreement to the stipulated sentence of five years in prison. The trial court awarded Holston 205 days of custody credits, including 137 actual days and sixty-eight days of conduct credits. The California Court of Appeal, Third Appellate District, affirmed Holston's conviction and sentence in an unpublished decision.*fn2 The California Supreme Court summarily denied review on November 10, 2010, and the Supreme Court denied certiorari on October 3, 2011.*fn3 Holston timely filed his Petition for relief in this Court on February 14, 2011, and his Amended Petition with leave of court on November 30, 2011.

While his appeal was pending Holston, appearing pro se, initiated as series of petitions for habeas relief in the state courts.

First Round: A petition in the Sacramento County Superior Court (RIC10012462), which was denied on July 2, 2010; on July 28, 2010, a petition in the Court of Appeal (C065674), which was summarily denied without opinion or citation to authority on August 5, 2010; and on September 14, 2010, a petition in the California Supreme Court (S186564), which was also summarily denied on May 11, 2011.

Second Round: On November 24, 2010, a petition in the Sacramento County Superior Court (HC RR 10-0000029), which was denied on February 8, 2011. On February 8, 2011, a petition in the California Court of Appeal (9C067491), which was summarily denied March 3, 2011, and on March 14, 2011, in the California Supreme Court (S191373), which was denied on May 11, 2011, citing In re Miller (1941) 17 Cal.2d 734, 735 [112 P.2d 10].

Third Round: On April 21, 2011, a petition for habeas relief in the California Court of Appeal (C067963), which was summarily denied without opinion or citation to authority, and the California Supreme Court denied review on June 29, 2011 (S192935).

Fourth Round On November 14, 2011, a petition in the California Court of Appeal (C069688), which was summarily denied on June 25, 2012.*fn4

The facts underlying his plea are well known to the parties and are not relevant to the issues raised. Consequently, they are not repeated here.

II. GROUNDS RAISED/DEFENSES

In his Amended Petition Holston raises four grounds: (1) ineffective assistance of appellate counsel; (2) application of Penal Code § 666(b) violated the Ex Post Facto Clause; (3) the finding that Holston was an offender as defined in Penal Code § 666(b), i.e., a registered sex offender, was not properly pleaded or proven; and (4) the trial court's finding that he was an offender as defined in Penal Code § 666(b) was based upon insufficient evidence. Respondent does not assert any affirmative defenses.

In his Petition, Holston requests a veritable cornucopia of relief, including: (1) that his good conduct credits be increased to a total of 273 days; (2) that the sentence be vacated and amended to provide for six months in the county jail; (3) that the count to which he entered his guilty plea be amended to be a misdemeanor under Penal Code § 484, 488 (petty theft), and the remaining two prison term allegations be stricken; (4) that the fines and restitution awards be waived; and (5) that his immediate release be ordered.

III. STANDARD OF REVIEW

Under the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"), 28 U.S.C. § 2254(d), this Court cannot grant relief unless the decision of the state court was "contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States" at the time the state court renders its decision or "was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding."*fn5 The Supreme Court has explained that "clearly established Federal law" in § 2254(d)(1) "refers to the holdings, as opposed to the dicta, of [the Supreme Court] as of the time of the relevant state-court decision."*fn6 The holding must also be intended to be binding upon the states; that is, the decision must be based upon constitutional grounds, not on the supervisory power of the Supreme Court over federal courts.*fn7 Thus, where holdings of the Supreme Court regarding the issue presented on habeas review are lacking, "it cannot be said that the state court 'unreasonabl[y] appli[ed] clearly established Federal law.'"*fn8 When a claim falls under the "unreasonable application" prong, a state court's application of Supreme Court precedent must be "objectively unreasonable," not just "incorrect or erroneous."*fn9 The Supreme Court has made clear that the objectively unreasonable standard is "a substantially higher threshold" than simply believing that the state-court determination was incorrect.*fn10 "[A]bsent a specific constitutional violation, federal habeas corpus review of trial error is limited to whether the error 'so infected the trial with unfairness as to make the resulting conviction a denial of due process.'"*fn11 In a federal habeas proceeding, the standard under which this Court must assess the prejudicial impact of constitutional error in a state court criminal trial is whether the error had a substantial and injurious effect or influence in determining the outcome.*fn12 Because state court judgments of conviction and sentence carry a presumption of finality and legality, the petitioner has the burden of showing by a preponderance of the evidence that he or she merits habeas relief.*fn13

The Supreme Court recently underscored the magnitude of the deference required:

As amended by AEDPA, § 2254(d) stops short of imposing a complete bar on federal court relitigation of claims already rejected in state proceedings. Cf. Felker v. Turpin, 518 U.S. 651, 664, 116 S.Ct. 2333, 135 L.Ed.2d 827 (1996) (discussing AEDPA's "modified res judicata rule" under § 2244). It preserves authority to issue the writ in cases where there is no possibility fairminded jurists could disagree that the state court's decision conflicts with this Court's precedents. It goes no farther. Section 2254(d) reflects the view that habeas corpus is a "guard against extreme malfunctions in the state criminal justice systems," not a substitute for ordinary error correction through appeal. Jackson v. Virginia, 443 U.S. 307, 332, n.5, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979) (Stevens, J., concurring in judgment). As a condition for obtaining habeas corpus from a federal court, a state prisoner 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.*fn14

In applying this standard, this Court reviews the "last reasoned decision" by the state court.*fn15 State appellate court decisions that summarily affirm a lower court's opinion without explanation are presumed to have adopted the reasoning of the lower court.*fn16 This Court gives the presumed decision of the state court the same AEDPA deference that it would give a reasoned decision of the state court.*fn17

Under California's unique habeas procedure, a prisoner who is denied habeas relief in the superior court files a new original petition for relief in the court of appeal. If denied relief by the court of appeal, the defendant has the option of either filing a new original petition for habeas relief or a petition for review of the court of appeal's denial in the California Supreme Court.*fn18

This is considered as the functional equivalent of the appeal process.*fn19 Under AEDPA, the state court's findings of fact are presumed to be correct unless the petitioner rebuts this presumption by clear and convincing evidence.*fn20 This presumption applies to state-trial courts and appellate courts alike.*fn21

A state court is not required to give reasons before its decision can be deemed to be "adjudicated on the merits."*fn22 When there is no reasoned state-court decision denying an issue presented to the state, "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."*fn23

"The presumption may be overcome when there is reason to think some other explanation for the state court's decision is more likely."*fn24 Where the presumption applies, this Court must perform an independent review of the record to ascertain whether the state-court decision was "objectively unreasonable."*fn25 In conducting an independent review of the record, this Court presumes that the relevant state-court decision rested on federal grounds,*fn26 giving that presumed decision the same deference as a reasoned decision.*fn27 The scope of this review is for clear error of the state court ruling on the petition:

[A]lthough we cannot undertake our review by analyzing the basis for the state court's decision, we can view it through the "objectively reasonable" lens ground by Williams. . . . Federal habeas review is not de novo when the state court does not supply reasoning for its decision, but an independent review of the record is required to determine whether the state court clearly erred in its application of controlling federal law. Only by that examination may we determine whether the state court's decision was objectively reasonable.*fn28

"[A]lthough we independently review the record, we still defer to the state court's ultimate decision."*fn29

IV. DISCUSSION

A. Appointment of Counsel [Docket No. 31]

There is no constitutional right to counsel in federal habeas proceedings.*fn30 Appointment of counsel is not required in a habeas corpus proceeding in the absence of an order granting discovery or an evidentiary hearing.*fn31 This Court may appoint counsel under the Criminal Justice Act in this case if the court determines that the interests of justice so require.*fn32 This Court does not so determine. Accordingly the Motion for Appointment of Counsel at Docket No. 31 is DENIED.

B. Release on Own Recognizance [Docket No. 33]

The record reflects that Holston has already been released, thereby rendering this question moot. Accordingly, the Application for Release on Own Recognizance Pending Determination on Petition for Writ of Habeas Corpus at Docket No. 33 is DENIED as moot.

C. Merits

At the time of Holston's conviction, Penal Code § 666 read:

Every person who, having been convicted of petty theft, grand theft, auto theft under Section 10851 of the Vehicle Code, burglary, carjacking, robbery, or a felony violation of Section 496 and having served a term therefor in any penal institution or having been imprisoned therein as a condition of probation for that offense, is subsequently convicted of petty theft, then the person convicted of that subsequent offense is punishable by imprisonment in the county jail not exceeding one year, or in the state prison.

Effective September 9, 2010, as relevant to the issues sub judice, § 666 was amended to read:

(a) Notwithstanding Section 490, every person who, having been convicted three or more times of petty theft, grand theft, auto theft under Section 10851 of the Vehicle Code, burglary, carjacking, robbery, or a felony violation of Section 496 and having served a term therefor in any penal institution or having been imprisoned therein as a condition of probation for that offense, is subsequently convicted of petty theft, then the person convicted of that subsequent offense is punishable by imprisonment in the county jail not exceeding one year, or in the state prison.

(b) Notwithstanding Section 490, any person described in paragraph (1) who, having been convicted of petty theft, grand theft, auto theft under Section 10851 of the Vehicle Code, burglary, carjacking, robbery, or a felony violation of Section 496, and having served a term of imprisonment therefor in any penal institution or having been imprisoned therein as a condition of probation for that offense, who is subsequently convicted of petty theft, is punishable by imprisonment in the county jail not exceeding one year, or in the state prison.

(1) This subdivision shall apply to any person who is required to register pursuant to the Sex Offender Registration Act, or who has a prior violent or serious felony conviction, as specified in subdivision (c) of Section 667.5 or subdivision (c) of Section 1192.7.

Holston's arguments are based upon a single premise-that the constitution requires that the amendment of California Penal Code § 666 after Holston entered his plea and sentence was imposed, apply to him. The State courts unanimously held against Holston.

Despite his lengthy exhortations and linguistic gymnastics, Holston totally ignores the effect of the fact that he entered a plea of guilty to a reduced charge in exchange for the State agreeing to cap the prison term at five years, dismissing a second count and striking two priors that, if convicted and the priors found to be true, likely would have put him behind bars for the duration of his natural life under California's "three-strikes" law. Holston effectively seeks to overturn this plea. Holston, however, faces a high hurdle in seeking to overturn a guilty plea on collateral review. As the Supreme Court held in Mabry:

It is well settled that a voluntary and intelligent plea of guilty made by an accused person, who has been advised by competent counsel, may not be collaterally attacked. It is also well settled that plea agreements are consistent with the requirements of voluntariness and intelligence because each side may obtain advantages when a guilty plea is exchanged for sentencing concessions, the agreement is no less voluntary than any other bargained-for exchange. It is only when the consensual character of the plea is called into question that the validity of a guilty plea may be impaired. In Brady v. United States, 397 U.S. 742, 90 S.Ct. 1463, 25 L.Ed.2d 747 (1970), we stated the applicable standard:

[A] plea of guilty entered by one fully aware of the direct consequences, including the actual value of any commitments made to him by the court, prosecutor, or his own counsel, must stand unless induced by threats (or promises to discontinue improper harassment), misrepresentation (including unfulfilled or unfulfillable promises), or perhaps by promises that are by their nature improper as having no proper relationship to the prosecutor's business (e.g. bribes).*fn33

Twenty years later the Supreme Court explained:

[The Supreme Court] recently explained, in reversing a lower court determination that a guilty plea was not voluntary: "[T]he law ordinarily considers a waiver knowing, intelligent, and sufficiently aware if the defendant fully understands the nature of the right and how it would likely apply in general in the circumstances-even though the defendant may not know the specific detailed consequences of invoking it." United States v. Ruiz, 536 U.S. 622, 629, 122 S.Ct. 2450, 153 L.Ed.2d 586 (2002) (emphasis in original). We similarly observed in Patterson: "If [the defendant] . . . lacked a full and complete appreciation of all of the consequences flowing from his waiver, it does not defeat the State's showing that the information it provided to him satisfied the constitutional minimum." 487 U.S., at 294, 108 S.Ct. 2389 (internal quotation marks omitted).*fn34

Holston makes no claim that his plea was not voluntarily entered, that he lacked any understanding of the consequences of his plea, or that the State has breached the plea agreement.

The prevailing view is that the relief to be afforded in federal courts on invalid plea agreements is either specific enforcement of the agreement or, alternatively, to permit the defendant to withdraw the plea.*fn35 Plea agreements are "constitutional contracts," the interpretation of the terms of which is controlled by the principles of contract law, construed in light of the rights and obligations created by the Constitution.*fn36 Courts will generally enforce the plain language of the plea agreement if it is clear and unambiguous on its face, but will construe all ambiguities against the government.*fn37

Holston does not seek to withdraw his plea, there is no claim that the plea agreement is ambiguous, nor does Holston seek to enforce its terms. Quite to the contrary, Holston is requesting this Court to compel the Yuba County Superior Court to modify his plea over the objections of the State, not in accordance with any understanding or fact that existed at the time he entered his plea, but as a result of changes to the law after he entered his plea. Reduced to its essence, what Holston is asking this Court to do is to further reduce the charge to which he pled guilty from a felony to misdemeanor, reduce the sentence that he accepted from five years imprisonment to six months in the county jail, and to compel the State to accept those terms over its objection. Holston cites no authority for this novel proposition and independent research by this Court has not uncovered any such authority. Indeed, that the law would countenance such an approach is counter-intuitive to the basic principles underlying a negotiated plea. In short, the relief Holston seeks exceeds the jurisdictionof this Court in a federal habeas proceeding. Moreover, even if this Court could reach Holston's arguments, he would not prevail.*fn38

Ground 1: Ineffective Assistance of Appellate Counsel

On direct appeal Holston contended he was entitled to additional pre-sentence credits under an amendment to Penal Code § 4019 that became effective after he was sentenced. The Court of Appeal rejected that contention because Holston was a registered sex offender, a fact that excluded him from the benefits of the amendment.*fn39 In Holston's opening brief appellate counsel conceded that Holston was in fact required to register as a sex offender.*fn40 Holston contends that this fact was neither pleaded nor proven and that his appellate counsel was therefore ineffective for conceding the point. Holston does not contend that he was not a registered sex offender*fn41 or that his status as such made the ameliorative provisions of § 4019, as amended, inapplicable, just that counsel should not have conceded the point. According to Holston this concession not only prejudiced him on direct appeal, i.e., the denial of his additional presentence credits, but also was the basis for the denial of his subsequent claim in his state habeas proceedings that he was entitled to the benefit of the amendment to Penal Code § 666.

Holston raised his ineffective assistance of appellate counsel claim before the California Supreme Court in an "Application for Leave to File Supplemental Petition for Writ of Habeas Corpus" in his third round of state habeas petitions, while his petition for review of the Court of Appeal's denial of his petition to that court was pending.*fn42 The California Supreme Court summarily denied Holston relief without opinion or citation to authority.

Under Strickland, to demonstrate ineffective assistance of counsel, Holston must show both that his counsel's performance was deficient and that the deficient performance prejudiced his defense.*fn43 A deficient performance is one in which "counsel made errors so serious that counsel was not functioning as the 'counsel' guaranteed by the Sixth Amendment."*fn44 Holston must show that defense counsel's representation was not within the range of competence demanded of attorneys in criminal cases, and that there is a reasonable probability that, but for counsel's ineffectiveness, the result would have been different.*fn45 An ineffective assistance of counsel claim should be denied if the petitioner fails to make a sufficient showing under either one of the Strickland prongs.*fn46

Strickland and its progeny do not mandate that this Court act as a "Monday morning quarterback" in reviewing tactical decisions.*fn47 Indeed, the Supreme Court admonished in Strickland:

Judicial scrutiny of counsel's performance must be highly deferential. It is all too tempting for a defendant to second-guess counsel's assistance after conviction or adverse sentence, and it is all too easy for a court, examining counsel's defense after it has proved unsuccessful, to conclude that a particular act or omission of counsel was unreasonable. A fair assessment of attorney performance requires that every effort be made to eliminate the distorting effects of hindsight, to reconstruct the circumstances of counsel's challenged conduct, and to evaluate the conduct from counsel's perspective at the time. Because of the difficulties inherent in making the evaluation, a court must indulge a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance; that is, the defendant must overcome the presumption that, under the circumstances, the challenged action might be considered sound trial strategy. There are countless ways to provide effective assistance in any given case. Even the best criminal defense attorneys would not defend a particular client in the same way.*fn48

In reviewing ineffective assistance of counsel claims in a federal habeas proceeding:

The question "is not whether a federal court believes the state court's determination" under the Strickland standard "was incorrect but whether that determination was unreasonable-a substantially higher threshold." Schriro, supra, at 473, 127 S.Ct. 1933. And, because the Strickland standard is a general standard, a state court has even more latitude to reasonably determine that a defendant has not satisfied that standard. See Yarborough v. Alvarado, 541 U.S. 652, 664, 124 S.Ct. 2140, 158 L.Ed.2d 938 (2004) ("[E]valuating 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").*fn49

It is through this doubly deferential lens that a federal habeas court reviews Strickland claims under the § 2254(d)(1) standard.*fn50

The Supreme Court, applying the "doubly deferential standard," has made clear that when adjudicating ineffective assistance of counsel claims in federal habeas proceedings, unlike the situation on direct review, focus is not on whether counsel's performance fell below the Strickland standard. Rather, the focus is on whether the state-court decision holding that counsel was not ineffective constituted an "unreasonable application of federal law[,] [which] is different from an incorrect application of federal law."*fn51

Under § 2254(d), a habeas court must determine what arguments or theories supported or, as here, 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.*fn52

Holston bears the burden of proving that counsel's appellate strategy was deficient. "[T]he defendant must overcome the presumption that, under the circumstances, the challenged action 'might be considered sound [appellate] strategy.'"*fn53 "[Holston] bears the heavy burden of proving that counsel's assistance was neither reasonable nor the result of sound [appellate] strategy."*fn54 "In determining whether the defendant received effective assistance of counsel, 'we will neither second-guess counsel's decisions, nor apply the fabled twenty-twenty vision of hindsight,' but rather, will defer to counsel's sound [appellate] strategy."*fn55 "Because advocacy is an art and not a science, and because the adversary system requires deference to counsel's informed decisions, strategic choices must be respected in these circumstances if they are based on professional judgment."*fn56 The failure of appellate counsel to raise meritless or weak issues does not constitute ineffective assistance of counsel.*fn57 Here, it was incontrovertible that Holston was a registered sex offender,*fn58 a fact that deprived Holston of the benefits of the amendment to § 4019. Indeed, appellate counsel in this case recognized the problem and, and "taking the bull by the horns," argued that, notwithstanding his status as a registered sex offender, Holston was nonetheless entitled to the benefit of the amendment; an argument that the Court of Appeal rejected.

Based on the record before it, this Court cannot say that the assumed decision of the California Supreme Court that appellate counsel was not ineffective in choosing his appeal strategy 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."*fn59

Nor, viewing the matter through the doubly-deferential lens of Mirzayance-Richter, can this Court find that the state court unreasonably applied the correct legal principle to the facts of the Holston's case within the scope of Andrade-Williams-Landrigan-Richter; i.e., the state court decision was not more than incorrect or erroneous, its application of clearly established federal law was not objectively unreasonable. In particular, Holston has failed to overcome the strong presumption that appellate counsel's representation falls within the wide range of reasonable professional assistance.*fn60 Holston is not entitled to relief under his first ground.

Grounds 2: Ex Post Facto Clause

With respect to his arguments vis-a-vis the retroactive application of the amendment to Penal Code § 666(b), he raised those claims for the first time before the California Supreme Court in a supplement to the petition,*fn61 which was summarily denied. He then presented the claims in the Yuba County Superior Court in his second round of state habeas petitions. The Yuba County Court rejected Holston's argument: "The Court determines that, if [Holston] had been prosecuted after the amendment of Penal Code Section 666, his sentence would have been still been proper under current section 666(b)."*fn62 The California Court of Appeal summarily denied relief, and the California Supreme Court denied relief citing In re Miller.*fn63

As amended, § 666(a) increased the number of prior convictions necessary to trigger that section from one to three. In his second ground, Holston contends that application of the provision of § 666(b) in the amended section that excludes registered sex offenders from the change in § 666(a), effectively leaving them in the same position they were in prior to amendment, violates the Ex Post Facto Clause. This Court disagrees.

"The bulk of our ex post facto jurisprudence has involved claims that a law has inflicted 'a greater punishment, than the law annexed to the crime, when committed.'"*fn64 The fatal flaw in Holston's argument is that he received the exact same punishment under § 666(b) as he did under the law as it existed on the date he committed the offense to which he pleaded guilty, nothing more. Because his punishment was not increased, his argument is utterly meritless. Holston is not entitled to relief under his second ground.*fn65

Grounds 3 and 4: Propriety of Finding Registered Sex Offender Status In his third and fourth grounds Holston contends that his status as a registered sex offender was not properly pleaded by the State (third ground) and was unsupported by the evidence (fourth ground). This argument fails. Holston raised this issue before the California Supreme Court in his supplement to his habeas petition in the first round of state habeas proceedings. Contrary to Holston's arguments, he specifically admitted this fact in his supplement: "Additionally, [Holston] contends that subdivision (b)(1) of amended [§] 666, may not be applied retrospectively to [Holston's] 2001 conviction for indecent exposure, that gave rise to his requirement to register as a sex offender. To do so would violate Penal Code section 3, the California and United States Constitution, ex post facto clauses."*fn66 Under California habeas procedure: "A petition for a writ of habeas corpus is a collateral attack on a presumptively valid judgment. Therefore, the petitioner bears a heavy burden initially to plead sufficient grounds for relief, and then later to prove them."*fn67 "If no prima facie case for relief is stated, the court will summarily deny the petition."*fn68 Because the very facts that Holston pleaded negated a prima facie case of entitlement to relief, this Court must assume that the California Supreme Court acted in accordance with its own law, albeit sub silentio."*fn69 Holston's arguments before this Court not only lack merit, but are frivolous.*fn70 Accordingly, Holston is not entitled to relief under either his third or fourth ground.

V. CONCLUSION AND ORDER

Holston is not entitled to relief on any ground raised in his Petition.

IT IS THEREFORE ORDERED THAT the Petition under 28 U.S.C. § 2254 for Writ of Habeas Corpus is DENIED.

IT IS FURTHER ORDERED THAT the Motion for Appointment of Counsel at Docket No. 31 is DENIED.

IT IS FURTHER ORDERED THAT the Application for Release on Own Recognizance Pending Determination on Petition for Writ of Habeas Corpus at Docket No. 33 is DENIED as moot.

IT IS FURTHER ORDERED THAT the Court declines to issue a Certificate of Appealability.*fn71 Any further request for a Certificate of Appealability must be addressed to the Court of Appeals.*fn72

The Clerk of the Court is to enter judgment accordingly.

James K. Singleton, Jr.


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