REPORTAND RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE RE: DENIAL OF PETITION FOR WRIT OF HABEAS CORPUS
WILLIAM McCURINE, Jr., Magistrate Judge.
William Jeffrey Hutchings (hereinafter "Petitioner") is a state prisoner proceeding pro se, with a Petition for a Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254. [ECF No. 1.] A jury convicted Petitioner of one count of conspiracy to commit grant theft, 65 counts of grand theft, 41 counts of deceitful practices by a mortgage foreclosure consultant and 56 counts of rent skimming. [Lodgment 7 at 1.] The San Diego Superior Court sentenced Petitioner to a prison term of 46 years. [Lodgment 7 at 2.] Hutchings presents the following claims in his federal petition: (1) the trial court abused its discretion in denying a defense motion for partial release of assets; (2) the trial court erred in denying a defense motion for mistrial following alleged juror misconduct; (3) the trial court erred in denying admission of defense evidence and unfairly influenced the jury by providing candy to its members each day; (4) trail counsel was ineffective by failing to investigate, failing to introduce certain evidence, failing to call expert witnesses, failing to object to evidence and failing to request a rehearing on a motion for mistrial; (5) the trial court erred by imposing consecutive sentences; and (6) the trial court erred by denying Petitioner's "land grant program" jury instruction. [ECF No. 1 at 25-26.]
Respondent has filed an Answer to the Petition, along with an incorporated Memorandum of Points and Authorities in support, and has lodged portions of the state court record. (ECF Nos. 11-13.) Respondent contends that federal habeas relief is not available because Claims one through three, five and six are procedurally defaulted. Respondent also argues Petitioner's fourth claim for ineffective assistance of counsel has no merit.
After receiving an extension of time in which to file a traverse, Petitioner filed his Traverse to Respondent's Answer on December 20, 2013. [ECF Nos. 19, 20 and 22.]
This Report and Recommendation is submitted to United States District Judge Roger T. Benitez pursuant to 28 U.S.C. § 636(b)(1) and Local Civil Rule HC.2 of the United States District Court for the Southern District of California. For the following reasons, the Court recommends a finding that Petitioner is not entitled to habeas relief because: (1) Claims one through three, five and six are procedurally defaulted and without merit and (2) Petitioner has not met his burden under Strickland v. Washington to demonstrate ineffective assistance of trial as alleged in Claim four.
Accordingly, the Court RECOMMENDS the Petition be DENIED.
On March 23, 2010, a jury found Petitioner guilty of one count of conspiracy to commit grand theft, 65 counts of grand theft, 41 counts of deceitful practices by a mortgage foreclosure consultant and 56 counts of rent skimming. [Lodg. No. 2 at 3 CT 482; 5 CT 916-918.] Petitioner filed an appeal on May 27, 2010 contending the trial court violated the Sixth and Fourteenth Amendments of the Constitution by inserting the concept of reasonableness into the jury instruction for mistake of fact. [Lodg. No. 4 at 4; Lodg. No. 7 at 2.] On October 18, 2011, the California Court of Appeal affirmed the judgment. [Lodg. No. 7.] On November 21, 2011, Hutchings filed a Petition for Review on the same ground raised in his appeal which was denied by the California Supreme Court on January 4, 2012. [Lodg. Nos. 8-9.]
On February 28, 2012, Hutchings filed a Petition for Writ of Habeas Corpus in the California Superior Court for the County of San Diego alleging: (1) the trial court erred in denying petitioner's proposed "land grant program" jury instruction; (2) the trial court erred in denying a defense motion for mistrial in light of prejudicial comments by the jury panel; (3) the trial court erred in denying admission of defense evidence and improperly influenced the jury; (4) ineffective assistance of trial counsel; and (5) the trial court erred in imposing consecutive sentences rather than concurrent sentences. Lodg. No. 10 at 1-24. On March 28, 2012, the San Diego Superior Court issued an Order denying Hutchings' Petition for Writ of Habeas Corpus for "fail[ing] to provide any evidence to substantiate any of the five grounds [Petitioner] raise[d] as reasons to grant th[e] petition.]" [Lodg. No. 11 at 3:13-14] (emphasis in original). The San Diego Superior Court also indicated:
"the second reason [for the denial of Hutchings' Petition] is that the general rule is a petition for writ of habeas corpus cannot serve as a substitute for an appeal, and matters that could have been, but were not, raised on a timely appeal from a judgment of conviction' re not cognizable on a petition for habeas corpus review, in the absence of special circumstances warranting a departure from that rule. In re Clark (1993) 5 Cal.4th 750, 765 (quoting In re Dixon (1953) 41 Cal. 2d 756');"> 41 Cal. 2d 756, 759). Moreover, in this state a defendant is not permitted to try out his contentions piecemeal by successive proceedings attacking the validity of the judgment against him.' Id. at 768."
Lodg. No. 11 at 3:23-4:1. (emphasis in original).
On May 12, 2012, Hutchings filed a Petition for Writ of Mandate in the California Court of Appeal requesting a hearing and an order for the release of discovery. [Lodg. No. 12.] The Court of Appeal denied the petition without comment on July 3, 2012. [Lodg. No. 13.]
On July 17, 2012, Hutchings filed a Petition for Writ of Mandate in the California Supreme Court requesting a hearing and an order for the release of discovery. [Lodg. No. 14.] On July 30, 2012, the state supreme court transferred the petition to the state appellate court to determine whether it was repetitious and should be denied under Hagan v. Superior Court, 57 Cal. 2d 767 (1962). [Lodg. No. 15.] After review, the state appellate court found the Petition for Writ of Mandate filed with the state supreme court was substantially similar to the earlier-filed petition in the state appellate court. Accordingly, the state appellate court denied the Petition for Writ of Mandate on August 6, 2012. [Lodg. No. 20.]
On August 20, 2012, Hutchings filed a Petition for review in the California Supreme Court challenging the denial of his request for a hearing and discovery. [Lodg. No. 17.] The state supreme court denied the petition without comment on September 26, 2012. [Lodg. No.18.]
On December 6, 2012, Hutchings filed a Petition for Writ of Habeas Corpus with the California Court of Appeal alleging: (1) the trial court abused its discretion in denying a defense motion for partial release of assets; (2) the trial court erred in denying a defense motion for mistrial in light of prejudicial comments by the jury panel; (3) the trial court erred in denying admission of defense evidence and improperly influenced the jury; (4) ineffective assistance of trial counsel; (5) the trial court erred in imposing consecutive sentences rather than concurrent sentences; and (6) the trial court erred in denying petitioner's proposed "land grant program" jury instruction. [Lodg. No. 19.] On February 7, 2013, the California Court of Appeal denied the petition for Hutchings' failure to raise the issues on direct appeal citing In re Seaton, 34 Cal.4th 192, 199-201 (2004), as well as the failure to explain why he could not raise the issues at an appropriate earlier time citing In re Harris, 5 Cal.4th 813, 825, fn.3 (1993) and In re Robbins, 18 Cal.4th 770, 778 (1998). [Lodg. No. 16.] The state appellate court also denied the petition for Hutchings' failure to demonstrate he "sought habeas relief on these grounds from the superior court in the first instance" citing In re Steele, 32 Cal.4th 682, 692 (2004) and In re Hillery, 202 Cal.App. 2d 293, 294 (1962).
On March 6, 2013, Hutchings filed a Petition for Writ of Habeas Corpus in the California Supreme Court alleging the same six issues previously raised with the state appellate court: (1) the trial court abused its discretion in denying a defense motion for partial release of assets; (2) the trial court erred in denying a defense motion for mistrial in light of prejudicial comments by the jury panel; (3) the trial court erred in denying admission of defense evidence and improperly influenced the jury; (4) ineffective assistance of trial counsel; (5) the trial court erred in imposing consecutive sentences rather than concurrent sentences; and (6) the trial court erred in denying petitioner's proposed "land grant program" jury instruction. [Lodg No. 21.] On May 1, 2013, the state supreme court denied the petition citing People v. Duvall, 9 Cal.4th 464, 474 (1995); In re Dixon 41 Cal. 2d. 756, 759 (1953) and In re Swain, 34 Cal. 2d 300');"> 34 Cal. 2d 300, 304 (1949). Lodg. No. 22.
On May 13, 2013, Hutchings filed a federal Petition for Writ of Habeas Corpus which alleges the same six issues previously raised with the state appellate and state supreme courts. [ECF No. 1.]
This Court gives deference to state court findings of fact and presumes them to be correct. See 28 U.S.C. § 2254(e)(1). See also Parke v. Raley, 506 U.S. 20, 35-36 (1992) (holding findings of historical fact, including inferences drawn from such facts, are entitled to a statutory presumption of correctness). The relevant facts found by the state appellate court are as follows: "Prosecution
Beginning in 2006, Hutchings commenced a purported federal land grant program promising to save homeowners facing foreclosure from losing their homes. He promoted the program with the following assertions: (1) the United States agreed to honor the land grants issued by the governments of Spain and Mexico in 1848 in the treaty of Hidalgo, through which the United States acquired California as a territory; (2) when California became a state in 1850, it issued patents to the land owners to protect their respective titles in real property under federal and California law; (3) because the land and the structure upon the land were separate entities, a homeowner facing foreclosure could defeat the mortgage by (a) placing the land back under federal control in a "federal land grant program" mimicking the treaty of Hidalgo and (b) waiting four to seven years, at which time the house would revert to the title holder free and clear of any mortgage when the bank wrote off the loan or the statute of limitations expired.
Hutchings and/or his representatives provided manuals and seminar presentations assuring homeowners the land grant was superior to any other forms of title and prohibited the bank from enforcing its loan, trespassing on the property, initiating eviction proceedings, or taking any action to defeat the homeowner's possession of the house permanently affixed to the land.
Hutchings and his representatives promised to prepare and file the deeds and other necessary paperwork, guarantee legal assistance throughout the process, and forward any paperwork from the mortgagee, including any notice of default, eviction, and sale.
Hutchings's program operated in two different ways. Homeowners would be charged a $10, 000 one time fee for the service, with the fee for any additional property discounted. In the alternative, delinquent homeowners paid one of Hutchings's companies or a designee the market lease rate for the particular property in a purported fee and lease arrangement. Under the purported leaseback arrangement, homeowners were told they retained an equity share in the property, ranging from 10 to 50 percent, and had an option to purchase the balance once the land program was completed. The resulting documentation, however, showed the homeowner ceded all interest in the property to one of Hutchings's companies.
Once eviction proceedings commenced, Hutchings did not provide any legal assistance to the homeowners and sometimes advised the homeowners to simply ignore the foreclosure proceedings. Moreover, homeowner's further attempts to communicate with Hutchings and/or his representatives failed.
Michael Dullea, an expert witness for the people, explained Hutchings made the following false representations in a seminar promoting his land grant program. The federal government owns the land in California (including the homeowner's properties) through its right of eminent domain. The federal government owns the land in California (including the homeowner's properties) because it was taken in the war with Mexico. A mortgage only provides ownership of the house, not the land. Once Land Services, LLC gets the grant deed, it starts the process of setting up a federal land grant. People have been putting property in federal land grants for 200 years. Because the federal government owns the land, neither the banks (mortgagees) nor the homeowners (mortgagors) own the land. The bank does not really own the home it acquires by virtue of a trustee's deed upon sale. The mortgagor (borrower) can end the mortgage by giving away the deed of trust. The mortgage disappears four years after the deed of trust is given away. Giving away the trust deed before the foreclosure sale stops the foreclosure sale and the enforcement of the lien. Banks will try to prove Hutchings's leaseback and purchase is a sham if the full market rent has not been paid. A house subject to foreclosure cannot be sold because of the land grant. The postforeclosure sale eviction may only be temporary. Once the bank writes off the mortgage, Hutchings's companies transfer the property out of the land grant and terminate the agreement with the homeowner.
Neither Hutchings nor his representatives ever told homeowners entering the program about the foreclosures the program had failed to avert. Further, none of the documents provided by Hutchings's program and signed by the victims thwarted foreclosure or conveyed title in the manner represented by Hutchings or his associates, and none of the victims retained possession of their homes or avoided foreclosure by virtue of Hutchings's program.
In all but three instances involving partial refunds, Hutchings and his representatives broke their promise that any and all monies paid for the land grant program would be refunded if the program did not work. Forensic reconstruction of bank records from January 2007 through June 2008 showed approximately $2 million passed through bank accounts controlled by Hutchings, the majority of the money coming from individuals and money orders. Of that amount, $275, 000 was directly traceable from 64 individuals. Disbursements from the accounts showed a total of $411, 000 tranferred to Canadian banks. Only one check was found for attorney fees, in the amount of $5, 000. Over $50, 000 was traced to a mortgage company, the monies representing accelerated payments on the mortgage on Hutchings's primary residence, the title to which was held in Hutchings's wife's name. The title history on the property revealed it was not in danger of default, and it was not placed in Hutchings's program. Search warrants executed at Hutchings's office and home yielded a number of files, including a compensation agreement, a copy of the Civil Code section on rent skimming, and a Bureau of Land Management declaration that land patent declarations have no legal effect and cannot thwart foreclosure.
Testifying on his own behalf, Hutchings claimed, based upon the law and his research, the program he offered was valid, he had no intent to defraud, and he did not violate the foreclsure consultant law or any other law. Other defense witnesses testified to Hutchings's good character."
[ See Lodg. No. 7 at 2-6.]
The Petition presents the following claims:
(1) the trial court abused its discretion in denying a defense motion for partial release of assets;
(2) the trial court erred in denying a defense motion for mistrial following alleged juror misconduct;
(3) the trial court erred in denying admission of defense evidence and unfairly influenced the jury by providing candy to its members each day;
(4) trial counsel was ineffective by failing to investigate, failing to introduce certain evidence, failing to call expert witnesses, failing to object to evidence and failing to request a rehearing on a motion for mistrial;
(5) the trial court erred by imposing consecutive sentences; and
(6) the trial court erred by denying Petitioner's "land grant program" jury instruction.
[ECF No. 1 at 25-26.]
A. Scope of Review
1. Federal Habeas Relief
This action was initiated after enactment of the Anti-terrorism and Effective Death Penalty Act of 1996 ("AEDPA"), Pub. L. No. 104-132, 110 Stat. 1214. Under 28 U.S.C. § 2254(d), as amended by AEDPA:
(d) 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 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.A. § 2254(d) (West 2006).
A state court's decision may be "contrary to" clearly established Supreme Court precedent (1) "if the state court applies a rule that contradicts the governing law set forth in [the Court's] cases" or (2) "if the state court confronts a set of facts that are materially indistinguishable from a decision of [the] Court and nevertheless arrives at a result different from [the Court's] precedent." Williams v. Taylor, 529 U.S. 362, 405-06 (2000). A state court decision may involve an "unreasonable application" of clearly established federal law, "if the state court identifies the correct governing legal rule from this Court's cases but unreasonably applies it to the facts of the particular state prisoner's case." Id. at 407. A decision may also involve an unreasonable application "if the state court either unreasonably extends a legal principle from [Supreme Court] precedent to a new context where it should not apply or unreasonably refuses to extend that principle to a new context where it should apply." Id.
"[A] federal habeas court may not issue the writ simply because the court concludes in its independent judgment that the relevant state-court decision applied clearly established federal law erroneously or incorrectly.... Rather, that application must be objectively unreasonable." Lockyer v. Andrade, 538 U.S. 63, 75-76 (2003) (internal quotation marks and citations omitted). Clearly established federal law "refers to the holdings, as opposed to the dicta, of [the United States Supreme] Court's decisions..." Williams, 529 U.S. at 412. In order to satisfy section 2254(d)(2), a federal habeas petitioner must demonstrate that the factual findings upon which the state court's adjudication of his claims rest, assuming it rests upon a determination of the facts, are objectively unreasonable. Miller-El v. Cockrell, 537 U.S. 322, 340 (2003).
"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." Harrington v. Richter, 131 S.Ct. 770, 786-87 (2011). The Supreme Court has stated that "[i]f this standard is difficult to meet, that is because it was meant to be... [as it] preserves authority to issue the writ in cases where there is no possibility fairminded jurists could disagree that the state court decision conflicts with this Court's precedents." Id. at 786 ("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.") (internal quotation marks omitted).
2. Procedural Default
Respondent contends all but one of Petitioner's federal claims are procedurally defaulted, which is an affirmative defense based on the petitioner's failure to satisfy a state law rule that in turn forecloses federal habeas review. Bennett v. Mueller, 322 F.3d 573, 580 (9th Cir. 2003) ("Federal courts 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'"), quoting Coleman v. Thompson, 501 U.S. 722, 719 (1991). If the state court's decision does not clearly rest on an independent and adequate state ground, it is presumed the denial was based at least in part on federal grounds, and the petitioner may seek relief in federal court. Siripongs v. Calderon, 35 F.3d 1308, 1317 (9th Cir. 1994).
"As a rule, a state prisoner's habeas claims may not be entertained by a federal court when (1) "a state court [has] declined to address [those] claims because the prisoner had failed to meet a state procedural requirement, " and (2) "the state judgment rests on independent and adequate state procedural grounds."'" Maples v. Thomas, 132 S.Ct. 912, 922 (2012), quoting Walker v. Martin, 13 ...