United States District Court, N.D. California
James Paul Baxter, Petitioner, Pro se, Martinez, CA.
For E. Valenzuela, Respondent: Gregory A. Ott, LEAD ATTORNEY, California State Attorney General's Office, San Francisco, CA.
ORDER DENYING PETITION FOR WRIT OF HABEAS CORPUS; DENYING CERTIFICATE OF APPEALABILITY
BETH LABSON FREEMAN, United States District Judge.
Petitioner, a state parolee proceeding pro se, filed a petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254 setting forth three claims. The petition was dismissed with leave to amend the first two claims. Petitioner filed a timely amended petition also setting forth three claims. The first claim was dismissed without further leave to amend because it still did not state cognizable grounds for federal habeas relief. Respondent was ordered to show cause why the amended petition should not be granted on the bases of the second and third claims. Respondent filed an answer addressing the merits of these two claims. Petitioner was given the opportunity to file a traverse but he did not do so. Having reviewed the briefs and the underlying record, the Court concludes that Petitioner is not entitled to relief and denies the petition.
In 2008, in Contra Costa County Superior Court, Petitioner pled no contest to second-degree robbery and admitted one prior serious felony conviction. (Ans. Exs. A, C.) Pursuant to a plea agreement, the trial court sentenced him to a term of seven years in state prison, consisting of two years for the robbery and five years for the prior conviction. (Id.)
Petitioner did not file a direct appeal. In late 2008, he filed the first of many a habeas petition in the state courts, this one in the superior court with the assistance of counsel, claiming ineffective assistance of trial counsel. (Ans. Ex. B.) Following an evidentiary hearing, the petition was denied on January 30, 2009. (Ans. Exs. D, E.) He then filed a series of pro se habeas petitions. On March 17, 2009, he filed his second habeas petition in the superior court, which was denied on March 27, 2009. (Ans. Ex. B.) On April 9, 2009, he filed a habeas petition in the California Court of Appeal that was denied a week later; the California Supreme Court then denied his petition for review on June 10, 2009. (Ans. Ex. F.) He filed another habeas petition in the California Court of Appeal, which was denied on December 2, 2010, and then he filed one in the California Supreme Court that was denied on August 10, 2011. (Ans. Ex. G.) Petitioner then filed yet another habeas petition in the California Court of Appeal, which was denied on February 8, 2012, and a final habeas petition in the California Supreme Court on April 20, 2012, which was in turn denied on August 8, 2012. (Ans. Ex. H.)
Petitioner filed the instant federal petition on October 3, 2012.
Because Petitioner's two claims do not necessitate examination of the facts of the offense, a brief summary of the facts is sufficient. On March 11, 2007, Petitioner confronted Elizabeth Caballero with a knife in the kitchen of a restaurant where she was working and asked her for money. (RT at 6-9, 26-28, 34.) She directed him to the cash register at the front of the restaurant, and when he walked past her towards the register pointing his knife, she ran out the back door. (Id. at 6, 12-13, 29.) The restaurant owner, Jorge Chang, who was also at the front, backed up behind the bar and called the police while Petitioner opened the register and took out 30 or 40 dollars. (Id. at 12-16, 20-23.) Petitioner then left out of the back of the restaurant. (Id. at 16, 21.) Police found Petitioner leaving a nearby food store and arrested him, and he confessed to taking the money from the restaurant cash register and throwing the knife away. (Pet. Ex. F at 6.) The knife was found in a dumpster near the restaurant. (Id. at 5.)
A. Standard of Review
This Court may entertain a petition for writ of habeas corpus " in behalf of a person in custody pursuant to the judgment of a state court only on the ground that he is in custody in violation of the Constitution or laws or treaties of the United States." 28 U.S.C. § 2254(a). Under the Antiterrorism and Effective Death Penalty Act of 1996 (" AEDPA"), a district court may not grant a petition challenging a state conviction or sentence on the basis of a claim that was reviewed on the merits in state court 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). The first prong applies both to questions of law and to mixed questions of law and fact, Williams v. Taylor, 529 U.S. 362, 384-86, 120 S.Ct. 1495, 146 L.Ed.2d 389 (2000), while the second prong applies to decisions based on factual determinations, Miller-El v. Cockrell, 537 U.S. 322, 340, 123 S.Ct. 1029, 154 L.Ed.2d 931 (2003).
" Under the 'contrary to' clause, a federal habeas court may grant the writ if the state court arrives at a conclusion opposite to that reached by [the Supreme] Court on a question of law or if the state court decides a case differently than [the] Court has on a set of materially indistinguishable facts." Williams, 529 U.S. at 412-13. A state court decision is an " unreasonable application of ' Supreme Court authority, falling under the second clause of § 2254(d)(1), if the state court correctly identifies the governing legal principle from the Supreme Court's decisions but " unreasonably applies that principle to the facts of the prisoner's case." Id. at 413. The federal court on habeas review may not issue the writ " simply because that court ...