United States District Court, E.D. California
FINDINGS AND RECOMMENDATIONS
CAROLYN K. DELANEY, Magistrate Judge.
Petitioner is a California prisoner proceeding pro se with a petition for writ of habeas corpus under 28 U.S.C. § 2254. He stands convicted of five offenses related to an incident occurring on January 13, 2009 during which petitioner and another man, while impersonating peace officers, attempted to rob a marijuana grower at gunpoint in the grower's house, while the grower's wife and small child were present. Petitioner pled "no contest" in the Superior Court of El Dorado County. He now challenges his pleas and negotiated sentences entered thereon. Respondents filed their answer on December 7, 2012. Petitioner filed his traverse on January 2, 2013.
The following summary of facts related to petitioner's convictions is provided by counsel for respondents:
Per evidence at a March 25, 2009 preliminary hearing, Placer County Deputy Sheriff Sean Fitzgerald arrived at a home on 4094 Carson Road in the County of El Dorado at about 3:30 p.m. on January 13, 2009, in response to a 911 call. (Doc 45 at 38, 50.) Resident Billy Petree ran up and told Deputy Fitzgerald to enter, that "they are robbing me" and that "they are going out the back door." ( Id. at 39.) Deputy Fitzgerald ran to the back yard and saw two persons in law enforcement clothing fleeing over the back fence. ( Id. at 40.)
As would be related by Mr. Petree to Detective John Yaws, the 911 call happened while Petitioner and codefendant Harvey Baker- both of whom were impersonating Sheriff officers-held Petree's family at gunpoint in their family home in an attempt to rob them of money and marijuana. (Doc. 45 at 51-54.) Petitioner threatened to shoot Petree's child. ( Id. at 54.) At some point, they handcuffed Petree. ( Id. at 55.) Reasoning that actual law enforcement officers would not have left him handcuffed alone in a room, Petree dialed 911 during the burglary. ( Id. at 55.) Petree announced he had dialed 911, and Baker tried to get Petitioner to leave. ( Id. at 55.) Baker removed Petree's handcuffs and both robbers fled as Deputy Fitzgerald's vehicle arrived. ( Id. at 56-57.) Petree's common law wife Crystal Cody would later recount that Petitioner (whom she identified by conduct) pointed a firearm at the head of her daughter K-Lee. ( Id. at 59, 60-61).
Deputy Fitzgerald saw the robbers flee over the fence, and saw petitioner drop a handgun. (Doc. 45 at 40, 41.) Deputy Fitzgerald caught Baker within about 200 to 300 yards from the residence. ( Id. at 41-42). Baker wore law enforcement clothing. ( Id. at 43.) Petree approached, "yelling and screaming" that his neighbors had "caught the other guy." (Doc. 45 at 44.) Petitioner was outfitted in law enforcement clothing, some of it stolen. ( Id. at 45, 71, 72-74.)
On the scene, Petree promptly identified Petitioner and Baker as the robbers. (Doc. 45 at 46.) He said petitioner was the robber who had dropped the gun. ( Id. at 45-46, 57.)
Petitioner and Baker had arrived in a gold Lincoln-model car. (Doc. 45 at 68.) Inside the car were various items of law enforcement property, including vehicle hardware (police visor lights) and officially-marked law enforcement clothing. ( Id. ) There were also various other items of stolen personal property.
While in jail awaiting trial, Petitioner telephoned his mother and asked her to get Terry Benson to persuade the victims to sign affidavits attesting "that this crime didn't happen or this wasn't a crime or... just a big joke or prank gone bad or something along those lines." (Doc. 45 at 78.) In a later telephone call with Benson, Petitioner said the victims needed to be persuaded to sign affidavits stating "this was a big accident, that this didn't happen, they need to get this to the judge and D.A. so this whole thing can go away, " and in exchange Petitioner would "take care of them big time." ( Id. at 79.) Officers seized from Petitioner's cell several affidavits that Petitioner intended to send to Benson under the pretense that Benson had a law office, which affidavits were for the victims to sign. ( Id. at 81-82.)
On May 26, 2010 in the Superior Court of El Dorado County, the day before petitioner was scheduled to go to trial, petitioner pled no contest to the following offenses in exchange for the following sentences:
Petitioner also accepted a sentence enhancement of 1 year for impersonating a police officer pursuant to California Penal Code § 667.17. Petitioner's total sentence is 18 years and 8 months. Petitioner did not appeal his plea or sentences. He did present several collateral attacks, however. All of the claims addressed below were denied in state court without meaningful comment, except as indicated.
II. Standard For Habeas Corpus Relief
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). Also, federal habeas corpus relief is not available for any claim decided on the merits in state court proceedings unless the state court's 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. § 2254(d) (referenced herein in as "§ 2254(d)." It is the habeas petitioner's burden to show he is not precluded from obtaining relief by § 2254(d). See Woodford v. Visciotti , 537 U.S. 19, 25 (2002).
The "contrary to" and "unreasonable application" clauses of § 2254(d)(1) are different. As the Supreme Court has explained:
A federal habeas court may issue the writ under the "contrary to" clause if the state court applies a rule different from the governing law set forth in our cases, or if it decides a case differently than we have done on a set of materially indistinguishable facts. The court may grant relief under the "unreasonable application" clause if the state court correctly identifies the governing legal principle from our decisions but unreasonably applies it to the facts of the particular case. The focus of the latter inquiry is on whether the state court's application of clearly established federal law is objectively unreasonable, and we stressed in Williams [v. Taylor , 529 U.S. 362 (2000)] that an unreasonable application is different from an incorrect one.
Bell v. Cone , 535 U.S. 685, 694 (2002). A state court does not apply a rule different from the law set forth in Supreme Court cases, or unreasonably apply such law, if the state court simply fails to cite or fails to indicate an awareness of federal law. Early v. Packer , 537 U.S. 3, 8 (2002).
The court will look to the last reasoned state court decision in determining whether the law applied to a particular claim by the state courts was contrary to the law set forth in the cases of the United States Supreme Court or whether an unreasonable application of such ...