The opinion of the court was delivered by: Jennifer L. Thurston United States Magistrate Judge
FINDINGS AND RECOMMENDATIONS TO DENY SECOND AMENDED PETITION FOR WRIT OF HABEAS CORPUS (Doc. 10) ORDER DIRECTING THAT OBJECTIONS BE FILED WITHIN TWENTY DAYS
Petitioner is a state prisoner proceeding pro se with a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254.
Petitioner is in custody of the California Department of Corrections and Rehabilitation ("CDCR") serving an indeterminate sentence of forty years and eight months-to-life, pursuant to a August 3, 2007 judgment of the Superior Court of California, County of Mariposa (the "Superior Court"). Petitioner was convicted of committing a lewd act upon a fourteen or fifteen year old child (Cal. Pen. Code § 288 (c)(1), and four counts of committing a lewd act upon a child under the age of fourteen (Cal. Pen. Code § 288(a)). (Doc. 10, p. 1).
Following his conviction, Petitioner pursued a direct appeal in the California Court of Appeals, Fifth Appellate District (the "5th DCA"). (Doc. 21, Lodged Documents ("LD") 1, 2, & 3).
Subsequently, the 5th DCA, in an unpublished decision, affirmed Petitioner's conviction and sentence. 2
(LD 4; Doc. 1, Attach.). Petitioner then filed a petition for review in the California Supreme Court, 3 which was denied on February 11, 2009. (Doc. 10, p. 2; LD 6). 4
On January 6, 2010, Petitioner filed the instant petition. (Doc. 1). Petitioner filed a first 5 amended petition on May 5, 2010 (Doc. 6), and a second amended petition on June 26, 2010. (Doc. 6 10). Respondent's answer to the second amended petition was filed on November 8, 2010. (Doc. 7 20). Petitioner did not file a Traverse. 8
Respondent concedes that the sole ground for relief in the petition has been fully exhausted. (Doc. 20, p. 7).
The Court adopts the Statement of Facts in the 5th DCA's published/unpublished decision: During voir dire the court asked the prospective jurors, "Anyone here closely related to anyone in law enforcement?" When Juror No. 60074 was called to the jury box, she acknowledged hearing the questions the court had previously asked. When the court asked, "Any of those questions you feel you should respond to?" (sic ), she replied "No." In response to further questioning, Juror No. 60074 provided personal information including that she was currently engaged.
On August 7, 2007, four days after the jury convicted Wyrick in this matter, the prosecutor wrote a letter to defense counsel advising him that she had learned Juror No. 60074 married Nick Gilbert in May 2004 and that they briefly lived together as a married couple for three months. The letter also stated that Gilbert was the son of Betty Halencak and the stepson of Tom Halencak. Betty Halencak was the secretary of Mariposa County District Attorney Robert Brown. Tom Halencak had been a Mariposa County Sheriff's Deputy from 1990 to May of 2003 and a district attorney investigator from May 2003 through February 2007. In a statement to a district attorney investigator, Juror No. 60074 stated that the above relationships did not affect her performance as a juror, she answered truthfully when asked during voir dire whether she had a close relationship with someone in law enforcement, and that she was never really close to her ex-husband's family.
On August 14, 2007, Wyrick filed his motion for a new trial alleging that Juror No. 60074 willfully hid her relationship to the Halencaks in order to be seated on the jury. The motion had the prosecutor's letter attached to it.
On August 17, 2007, the prosecutor filed a response which stated that Betty Halencak separated from Tom Halencak in December 2005 and initiated divorce proceedings on May 24, 2006. The response also stated that while obtaining the dissolution records for Juror No. 60074, the prosecutor was informed that the juror's current fiancee, Eric Paige, was the nephew of Fred Paige who formerly worked as a Mariposa County Sheriff's deputy for many years and was currently employed part-time with the Mariposa Superior Court in court security. Eric Paige also had an aunt who was a court reporter for the Mariposa Superior Court and was married to Jim Allen, the current Mariposa County Sheriff and Paige's deceased grandfather was the Mariposa County Sheriff from 1975 to 1983.
The prosecution's response also contained a statement from Tom Halencak stating that he was not close to Juror No. 60074 and had not talked to her since her divorce from his stepson.
On August 21, 2007, at a hearing on Wyrick's motion Juror No. 60074 testified that during voir dire, when the court asked the prospective jurors whether any of them was closely related to anyone in law enforcement, she interpreted the question as asking about a spouse or a blood relative like a father or brother. She did not think the court was asking about her former relationship with her former in-laws.
Juror No. 60074 further testified that she married Nick Gilbert in May 2004 and lived with him for three months after that. She was never close to Tom Halencak and never spoke to him about his work or Wyrick and she did not know anything about the case before it started. She never talked to Betty Halencak about her employment and was unaware she worked as a secretary for the Mariposa County District Attorney. Juror No. 60074 believed her fiancee, Eric Paige, had two uncles, Jim Allen and Fred Paige, who were involved in law enforcement. Allen is married to Fred's sister LeeAnn Allen who is a court reporter. She did not view a court reporter as part of law enforcement and did not think about her relationship with the Halencaks or the Paiges when the court asked if she was closely related to anyone in law enforcement. None of these relationships influenced her decision in Wyrick's case.
During voir dire Juror No. 60074 was present when a nephew of Tom Halencak was questioned and heard the court ask the prosecutor whether Tom Halencak had worked on Wyrick's case. This, however, did not prompt her to disclose her former relationship to Halencak because she did not consider her relationship to him to be close.
After hearing counsels' arguments, the court denied the motion finding that Juror No. 60074 did not deliberately fail to disclose any material information during voir dire, that she was credible and unbiased, and that there was no clear showing of prejudice to Wyrick and no juror misconduct. The court also found that Juror No. 60074 did not have a close relationship with Tom Halencak. (LD 4, pp. 2-4).
Relief by way of a petition for writ of habeas corpus extends to a person in custody pursuant to the judgment of a state court if the custody is in violation of the Constitution, laws, or treaties of the United States. 28 U.S.C. § 2254(a); 28 U.S.C. § 2241(c)(3); Williams v. Taylor, 529 U.S. 362, 375 n. 7 (2000). Petitioner asserts that he suffered violations of his rights as guaranteed by the United States Constitution. The challenged conviction arises out of the Mariposa County Superior Court, which is 2 located within the jurisdiction of this court. 28 U.S.C. § 2254(a); 28 U.S.C.§ 2241(d). 3
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