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Swagerty v. Price

United States District Court, E.D. California

August 20, 2014

MARK SWAGERTY, Petitioner,
J. PRICE, Acting Warden, Deuel Vocational Institution, [1] Respondent.

ORDER [Re: Motions at Docket Nos. 40 & 43] and MEMORANDUM DECISION

JAMES K. SINGLETON, Jr., Senior District Judge.

Mark Swagerty, a state prisoner proceeding pro se, filed a Petition for a Writ of Habeas Corpus with this Court pursuant to 28 U.S.C. § 2254. Swagerty is currently in the custody of the California Department of Corrections and Rehabilitation and is incarcerated at Deuel Vocational Institution. Respondent has answered, and Swagerty has replied.


A jury convicted Swagerty of causing, inducing, persuading, or encouraging L.F., a person under the age of 16, to become a prostitute ("pandering"), and attempting to derive support from the earnings of a prostitute ("attempted pimping"). People v. Swagerty, No. C064210, 2011 WL 4017527, at *1 (Cal.Ct.App. Sept. 12, 2011). The trial court found that he had served two prior prison terms and sentenced him to state prison for ten years, consisting of the upper term of eight years on Count 1 and two years for the prior prison terms, plus a concurrent upper term of four years on Count 2. Id. Swagerty was ordered to register as a sexual offender for the rest of his life. Id.

Swagerty directly appealed through counsel. The California Court of Appeal ordered the judgment modified by staying the sentence on Count 2, but otherwise affirmed in a reasoned, unpublished opinion. Id. at *11. Swagerty filed a counseled petition for rehearing, which the Court of Appeal also denied. Swagerty then filed a counseled petition for review to the California Supreme Court, which was summarily denied on December 14, 2011. Swagerty subsequently filed a series of five pro se petitions for writ of habeas corpus to the superior court, all of which were denied. On July 12, 2013, Swagerty filed a Second Amended Petition with this Court.


In his pro se Second Amended Petition to this Court, Swagerty argues as follows: 1) the trial court failed to sua sponte instruct on lesser included offenses of Count 1; 2) the judgment should be reversed and the trial court ordered to hold a Marsden hearing[2]; and 3) mandatory lifetime sexual offender registration violates principles of equal protection.


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, " § 2254(d)(1), or "was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding, " § 2254(d)(2). A state-court decision is contrary to federal law if the state court applies a rule that contradicts controlling Supreme Court authority or "if the state court confronts a set of facts that are materially indistinguishable from a decision" of the Supreme Court, but nevertheless arrives at a different result. Williams v. Taylor, 529 U.S. 362, 406 (2000).

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." Id. at 412. 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. Early v. Packer, 537 U.S. 3, 10 (2002). 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.'" Carey v. Musladin, 549 U.S. 70, 77 (2006) (citation omitted).

In applying these standards on habeas review, this Court reviews the "last reasoned decision" by the state court. See Robinson v. Ignacio, 360 F.3d 1044, 1055 (9th Cir. 2004) (citing Avila v. Galaza, 297 F.3d 911, 918 (9th Cir. 2002)). Under the AEDPA, the state court's findings of fact are presumed to be correct unless the petitioner rebuts this presumption by clear and convincing evidence. 28 U.S.C. § 2254(e)(1); Miller-El v. Cockrell, 537 U.S. 322, 340 (2003).


Claim One: Failure to instruct on lesser included offenses of Count 1

Swagerty first argues that the trial court erred by failing to sua sponte instruct the jury on two lesser included offenses of Count 1: attempted pandering and contributing to the delinquency of a minor. The Court of Appeal found no reversible error, concluding that evidence suggesting that L.F. was already a prostitute did not entitled him to a lesser included offense ...

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