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Peter Lynn Galloway v. R. H. Trimble

December 13, 2012

PETER LYNN GALLOWAY, PETITIONER,
v.
R. H. TRIMBLE, WARDEN,
RESPONDENT.



ORDER AND FINDINGS & RECOMMENDATIONS

Petitioner is a state prisoner proceeding pro se with a petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. Petitioner challenges a judgment of conviction entered against him on December 18, 2008 in the Sacramento County Superior Court for second degree robbery with findings that he had previously suffered one prior "strike" conviction, served two prior prison terms, and suffered one "serious or violent" felony prior conviction. He seeks federal habeas relief, claiming that his trial counsel rendered ineffective assistance in failing to accurately convey to him the terms of a plea offer. Petitioner also seeks to expand the record in this federal habeas action with several transcripts and letters. Upon careful consideration of the record and the applicable law, the undersigned will deny petitioner's request to expand the record and recommend that his application for habeas corpus relief be denied.

I. Factual and Procedural Background

In its unpublished memorandum and opinion affirming petitioner's judgment of conviction on appeal*fn1 , the California Court of Appeal for the Third Appellate District provided the following factual and procedural summary:

PROCEDURE

Defendant was charged by information with one count of second degree robbery. (Pen. Code, § 211.) The information also alleged that defendant had two prior strikes (robbery and kidnapping) (Pen. Code, §§ 667, 1170.12) and two prior prison terms for other felonies (false impersonation and bank fraud) (Pen. Code, § 667.5, subd. (b)). Finally, the information alleged that the prior robbery was a serious felony within the meaning of Penal Code section 667, subdivision (a).

Before trial, the court granted the prosecutor's motion to strike the kidnapping prior.

A jury found defendant guilty of second degree robbery, and the court found the prior conviction and prison term allegations true. The trial court imposed the upper term of five years in prison for the second degree robbery, doubled to 10 years because of the strike. The court added five years for the prior serious felony and one year each for the prior prison terms, all consecutive. The total state prison term imposed was 17 years.

FACTS

Defendant committed the crime at Nordstrom Rack in Sacramento on June 21, 2007. The two main sources of evidence against defendant were (1) two witnesses to the crime and (2) a surveillance video.

Testimony of Witnesses Heather Djuric was acting as store manager on the evening of the crime. She was assisting a customer with a refund at a cash register near the front of the store. The customer gave Djuric her passport, from which Djuric entered information into the register. The cash register opened, and Djuric began taking cash out of the drawer. As she did so, defendant collided with her and she was knocked to the ground, about four or five feet from the register.

She landed on a divider between registers, resulting in injured ribs and a shoulder tear. In a daze, Djuric thought at first that another employee may have tripped and fallen into her.

Joshua Meredith, the store's loss prevention officer, saw defendant enter the cashiers' area, shove Djuric, and take money from the cash register. After a struggle, Meredith and others detained defendant until police arrived.

When interviewed by a sheriff's deputy immediately after the incident, Djuric said that she had been grabbed then shoved. Surveillance Video The surveillance video capturing the incident is about 70 seconds long. The view is of most of the cashiers' area, where there are four cash registers. Some of the immediate area outside of the cashiers' area is also visible. The camera looks down onto the cashiers' area, at an angle.

Inside the cashiers' area are two employees assisting customers, who are outside the cashiers' area. As the video begins, the employee on the left side of the image (identified at trial as Djuric) is typing on the keyboard of the cash register, while the customer she is assisting is looking at a shoe on the counter.

Fifteen seconds into the video, defendant appears, walking past the cashiers' area and talking on a cell phone. He walks around a display of clothing, then returns to the area just outside the cashiers' area, behind Djuric's back. Still talking on the cell phone, defendant bends over, looking in the direction of Djuric for about 15 seconds.

Fifty seconds into the video, Djuric hands something to the customer as the cash register opens. As soon as the cash register opens, defendant, still outside the cashiers' area, walks toward the camera. He disappears from the camera image, which does not include one end of the cashiers' area.

Fifty-five seconds into the video, defendant appears inside the cashiers' area where Djuric is taking cash out of the register. Much larger than Djuric, defendant rushes in and, in one motion, knocks Djuric away from the cash register with his right forearm and grabs for cash in the register with both hands. Djuric crashes to the ground with considerable force, several feet from the register. The cash she has in her hand ends up on the floor behind her.

Sixty seconds into the video, defendant leaves the cashiers' area with cash from the register in his hands. (Opinion at 6-9.)

On June 29, 2010, the California Court of Appeal affirmed petitioner's judgment of conviction. (Doc. 35.) Petitioner did not file a petition for review in the California Supreme Court.

As described in more detail below, petitioner raised the ineffective assistance of counsel claim contained in the petition before this court in habeas petitions filed in the Sacramento County Superior Court, the California Court of Appeal, and the California Supreme Court. (Resp't's Lod. Docs. 4, 6, 8.) The Sacramento County Superior Court denied petitioner's habeas petition in a reasoned decision on the merits of petitioner's claims. (Resp't's Lod. Doc. 5.) The California Court of Appeal and California Supreme Court summarily denied the habeas petitions filed by petitioner in those courts. (Resp't's Lod. Docs. 7, 9.)

On May 26, 2011, petitioner commenced this action by filing a federal petition for writ of habeas corpus. In that petition, petitioner asserted three claims for federal habeas relief:

(1) ineffective assistance of trial counsel; (2) a due process violation; and (3) ineffective assistance of appellate counsel. (Doc. 1 at 5-6.) After respondent filed a motion to dismiss the petition for failure to exhaust state court remedies with respect to claims (2) and (3), petitioner filed an amended petition, raising the sole claim that his trial counsel rendered ineffective assistance in failing to accurately convey to petitioner a plea offer that was made to him. (Doc. 24.)

II. Analysis

A. Standards of Review Applicable to Habeas Corpus Claims

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 Wilson v. Corcoran, 562 U.S.___, ___, 131 S. Ct. 13, 16 (2010); Estelle v. McGuire, 502 U.S. 62, 67-68 (1991); Park v. California, 202 F.3d 1146, 1149 (9th Cir. 2000).

Title 28 U.S.C. § 2254(d) sets forth the following standards for granting federal habeas corpus relief:

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 ...


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