United States District Court, S.D. California
DONALD V. MITCHELL, Petitioner,
MATTHEW MARTEL, Warden, Respondent.
ORDER (1) ADOPTING IN PART AND DECLINING TO ADOPT IN PART REPORT & RECOMMENDATION, AND (2) DENYING PETITION FOR WRIT OF HABEAS CORPUS
GONZALO P. CURIEL, District Judge.
On May 3, 2010, Petitioner Donald Eugene Mitchell ("Petitioner"), originally proceeding pro se, filed a Petition for Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254 in which he alleges ineffective assistance of counsel and denial of a mental competency hearing. (Dkt. No. 1.) On September 15, 2011, the Court granted Petitioner's request for appointment of counsel and appointed CJA panel attorney Kurt David Hermansen. (Dkt. No. 35.) On July 29, 2013, Respondent filed a Response to Petition for Writ of Habeas Corpus and Memorandum of Points and Authorities. (Dkt. No. 54.) Petitioner filed a Traverse on September 19, 2013. (Dkt. No. 58.)
Magistrate Judge David H. Bartick issued a Report and Recommendation ("R&R") recommending the Petition for Writ of Habeas Corpus be denied, finding that Petitioner's first claim of ineffective assistance of counsel was procedurally barred while his second claim was not, but ultimately finding that neither claim has merit. (Dkt. No. 59.) On January 10, 2014, Respondent filed objections. (Dkt. No. 60.)
For the reasons outlined below, the Court ADOPTS the R&R in part and DECLINES to adopt the R&R in part, and DENIES the Petition for Writ of Habeas Corpus.
This Court gives deference to state court findings of fact and presumes them to be correct; Petitioner may rebut the presumption of correctness, but only by clear and convincing evidence. See 28 U.S.C. § 2254(e)(1) (2012); see also Parle v. Fraley , 506 U.S. 20, 35-36 (1992) (holding that findings of historical fact, including inferences properly drawn from these facts, are entitled to statutory presumption of correctness). The following facts are taken from the California Court of Appeal opinion:
At about 4:30 a.m. on October 26, 1996, Grace Estep was walking on Market Street in the City of San Diego. Estep was walking from a friend's residence to a methadone clinic on Home Avenue. During that walk Estep encountered Mitchell, who called to her. Estep recognized Mitchell as someone she had seen the day before. He appeared to be drunk.
Mitchell was dressed in a football jersey with a number on it and had his hair in "jehri [sic] curls." He demanded that Estep go with him and when she attempted to get around him he firmly grabbed her.
Mitchell pulled Estep toward the Chollas Elementary School across the street. After a distance Estep managed to pull free from Mitchell by slipping out of the jacket. She ran away by jumping over a nearby fence. Estep returned to retrieve her jacket and Mitchell again approached her. Estep managed to get away and run to the nearby welfare office where she called police.
Estep was an admitted heroin user who described herself as being five feet three or four inches tall and weighing one hundred fifteen pounds to one hundred twenty pounds.
Estep went with police officers in search of her assailant. When she observed Mitchell she identified him for police. When he was arrested Mitchell was wearing a football jersey bearing the number 55 on it. Mitchell was described by police as five feet eleven inches tall weighing two hundred twenty pounds.
Mitchell called two friends to testify that he had been dropped off at a night club in the area that evening and had not obtained a ride home. A third witness, a friend of Estep, testified she did not recall that Estep had stayed with her the night before the attack. She also said Estep never told her about the attack.
(Lodgment No. 6 at 2-3.)
On April 18, 1997, a jury convicted Petitioner of false imprisonment by violence. (Lodgment No. 1 at 63.) The trial court subsequently determined that Petitioner had previously been convicted of three crimes that qualified him for sentencing under the Three Strikes law and had served a prison term. (Lodgment No. 2, vol. 4 at 225-39.) The court sentenced Petitioner to imprisonment for twenty-five years to life. (Lodgment No. 1 at 135.)
On December 23, 1997, Petitioner appealed to the California Court of Appeal, contending (1) that the trial court abused its discretion in precluding defense impeachment of the victim with evidence of a prior misdemeanor conviction for prostitution, and (2) the sentence under the Three Strikes law was cruel and unusual. (Lodgment 3.) On July 24, 1998, the appellate court denied the appeal. (Lodgment 6.)
On August 7, 1998, Petitioner filed a petition for review in the California Supreme Court challenging his sentence. (Lodgment 7.) On September 30, 1998, the California Supreme Court summarily denied review. (Lodgment 8.) Petitioner did not seek a petition for writ of certiorari from the United States Supreme Court.
On October 16, 2009, Petitioner filed a petition for writ of habeas corpus in the California Supreme Court. (Lodgment 9.) In the petition, Petitioner claimed his defense counsel was ineffective for failing to investigate the victim's record of prostitution or to investigate Petitioner's mental competence. (Id. at 3.) On April 4, 2010, the California Supreme Court denied the petition, citing In re Robbins , 18 Cal.4th 770, 780 ...