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McNeely v. Chappell

United States District Court, E.D. California

September 4, 2014

DOCK McNEELY, Petitioner,
v.
KEVIN CHAPPELL, Respondent.

ORDER

EDMUND F. BRENNAN, Magistrate Judge.

Petitioner is a state prisoner proceeding pro se with a petition for a writ of habeas corpus.[1] He challenges a judgment of conviction entered against him on September 18, 2009 on charges of failing to register as a sex offender, based on a 1995 state court conviction for continuous sexual abuse of a child.[2] He seeks federal habeas relief on the grounds that his conviction and sentence violate the decision of the U.S. Court of Appeals for the Ninth Circuit in McNeely v. Blanas, 336 F.3d 822 (9th Cir. 2003), as well as the Double Jeopardy Clause. Upon careful consideration of the record and the applicable law, the court finds that the application for habeas corpus relief must be denied.

I. Background

The following procedural background relevant to the claims contained in the petition before this court was provided by the California Court of Appeal in its unpublished memorandum and opinion affirming petitioner's judgment of conviction on appeal:

On March 25, 1994, defendant pleaded guilty to one count of continuous sexual abuse of a child. As a result, on August 25, 1995, he was placed on five years' probation. Also as a result of the conviction, he was required to register as a sex offender.
Approximately every 30 days from September 15, 2006 through September 13, 2007, defendant registered as a sex offender at the Sacramento Sexual Assault Felony Enforcement (SAFE) Team office, stating he was a transient. During this time, defendant had a girlfriend, Lisa Brown, who lived in Elk Grove. Defendant told the neighbors he lived there and was not leaving. He spent multiple nights each week at her house, parked his car in her garage and stored his personal property there. In November of 2006, he rented a mailbox at a UPS store about a mile and a half from Brown's home. He used this mailbox address to apply for and receive an electronic benefits transfer (EBT) card for cash aid and food stamps. Throughout the year, the EBT card was used at various stores within a five-mile radius of Brown's home in Elk Grove. Defendant did household chores at the home, interacted with the neighbors, fished from the dock and used a paddleboat in the lake near the home. A sex offender living in Elk Grove is required to register with the Elk Grove Police Department.
In June 2007, the SAFE team officers became suspicious of defendant's claimed status as a transient. He appeared too well dressed and well groomed. As part of the registration process, they asked him standard questions about his transient status. Defendant was uncooperative, and his demeanor was evasive and argumentative. Accordingly, they began an investigation. They established surveillance of him after he came in to register in June, July, August, and September. Their surveillance revealed defendant might be living in Elk Grove at Brown's house.
In late September 2007, a search warrant was served at Brown's house. Defendant was in the house alone, wearing a bathrobe. His personal property was found in the house and garage and his car was parked in the garage. Between September 2006 and September 2007, defendant did not register as a sex offender with the Elk Grove Police Department. He was arrested for failing to register as a sex offender.
Defendant denied that he lived at Brown's home. He stated he never stayed there more than a couple of nights a week. Brown had made it clear to him that he could not register as living at her home unless he married her. He admitted spending time in the home as Brown's guest and boyfriend, showering there, eating there and storing important records and clothes there. He also admitted caring for her yard and shopping at nearby stores. He did not have a key to the home, did not receive mail there and did not pay bills there. Brown's testimony was consistent with defendant's testimony.
Following his arrest in September, on March 4, 2008, defendant was released from custody. Shortly thereafter, he rented an apartment on Hudson Way. On March 10, 2008, he registered as a sex offender with the appropriate office. The registration form showed his birth date as June 11, 1953.
In late June, it was discovered defendant had failed to file an annual registration form within five days of his birthday. On June 25, 2008, officers went to the apartment on Hudson Way and arrested him.
Defendant claimed he failed to register within five days of his birthday because he was having a mental breakdown and was bedridden. He admitted he had been released from custody on bail at the time he was arrested in June.
Defendant was charged with failure to register as a sex offender within five days of coming into a city or county (Pen.Code, § 290, subd. (g)(2), count 1; undesignated statutory references that follow are to the Penal Code) and failure to register as a sex offender annually within five days of his birthday. (§ 290.018, subd. (b), count 2.) It was further alleged that the failure to register as alleged in count 2 was committed while defendant was released from custody on bail (§ 12022.1, subd. (b)) and that defendant had a prior serious felony conviction. (§§ 667, subds. (b)-(i), 1170.12.)
Following a jury trial, defendant was found guilty as charged and the sentence enhancement allegations were found true. Defendant's request for probation was denied. He was sentenced to an aggregate term of seven years four months in prison. He was granted 655 days' credit for time served consisting of 382 days actual credit, 190 good time ...

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