United States District Court, N.D. California
ORDER DENYING PETITION FOR WRIT OF HABEAS CORPUS CERTIFICATE OF SERVICE
CLAUDIA WILKEN, District Judge.
Petitioner Thomas Allen Darby, a state prisoner, filed this amended petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254, challenging his state criminal conviction. He asserts three claims as they relate to his indecent exposure conviction: (1) abuse of discretion by the trial court when it denied his motion for a new trial; (2) ineffective assistance of counsel based on (a) trial counsel's failure to argue sufficiently his motion to suppress and failure to argue his motion for a new trial and (b) appellate counsel's filing of a Wende brief (see People v. Wendy, 25 Cal.3d 436 (1979)); and (3) actual innocence. Respondent has filed an answer and a memorandum in support thereof and Petitioner has filed a traverse. For the reasons discussed below, the Court DENIES the petition.
I. Procedural History
In March 2008, at a bench trial, Petitioner was convicted of indecent exposure and possession of child pornography, and sentenced to nine years in state prison. Ex. 1 at 195.
Petitioner appealed his conviction to the California Court of Appeal and, in February 2009, the California Court of Appeal affirmed the judgment in an unpublished opinion. Ex. 7. Petitioner filed a petition for rehearing, which was denied. Exs. 8 and 9. Petitioner did not seek review in the California Supreme Court.
In April 2009, Petitioner filed a petition for a writ of habeas corpus in the California Supreme Court. Ex. 11. Petitioner asserted three claims: (a) that he was denied due process of law when the trial court judge denied his motion for a new trial; (b) that his September 2007 arrest, and the search of his computer, violated his Fourth and Fifth Amendment rights; and (c) ineffective assistance of appellate counsel. The California Supreme Court denied the petition in August 2009. Ex. 12.
In September 2009, Petitioner filed a petition for a writ of habeas corpus in the Sonoma County Superior Court. Ex. 13. Petitioner asserted five claims: (a) that he was denied due process of law when the trial court judge denied his motion for a new trial; (b) that the Marsden process (see People v. Marsden, 2 Cal.3d 118 (1970)) put him in the position of a prosecutor in an adversarial position with his own counsel in violation of the Sixth and Fourteenth Amendments; (c) that the search of his computer violated the Fourth Amendment; (d) that the prosecutor committed misconduct in violation of the Fifth, Sixth and Fourteenth Amendments; and (e) that he was prejudiced by being handcuffed and dressed in jail clothing during the trial. The Superior Court denied the petition in November 2009, stating that his first three claims and his fifth claim could have been raised or were raised on appeal, and thus were procedurally barred. Ex. 14. It further held that he failed to show that either his trial lawyer's or appellate lawyer's performance was deficient or that such deficient performance was prejudicial.
In March 2010, Petitioner filed a petition for a writ of habeas corpus in the California Court of Appeal, which denied it in April 2010, stating that "habeas corpus cannot serve as a second appeal." Ex. 15.
In May 2010, Petitioner filed a petition for a writ of habeas corpus in the California Supreme Court, which denied it in November 2010. Exs. 16 and 17.
In February 2011, Petitioner filed a timely petition for a writ of habeas corpus in this Court. Docket No. 1. Petitioner asserted four claims: (a) claims one and three: that he is actually innocent of the crime for which he was convicted and the state courts wrongly refused to consider evidence of his innocence; (b) claim two: that the Wende brief filed by appellate counsel denied him due process of law and unfairly limited his appeal options; and (c) claim four: ineffective assistance of counsel in violation of the Sixth Amendment, based on counsel's inadequate challenge to violations of the Fourth and Fifth Amendments.
In March 2012, this Court granted Respondent's motion to dismiss the petition as unexhausted. Docket No. 10. The Court found that Petitioner had filed a mixed petition, and that only the ineffective assistance of appellate counsel claim based on the Wende brief was exhausted. Accordingly, the Court required Petitioner to submit either a request to dismiss his unexhausted claims and proceed only with his exhausted claim, or a request to stay the petition while he returned to state court to exhaust his unexhausted claims. Plaintiff requested a stay which, in May 2012, the Court granted. Docket No. 12.
In May 2012, Petitioner filed a petition for a writ of habeas corpus in Sonoma County Superior Court. Petitioner asserted three claims: (a) his motion for a new trial was wrongly denied; (b) ineffective assistance of trial counsel; and (c) actual innocence. Ex. 18. The Superior Court denied the petition in July 2012, stating that his claim that the motion for a new trial was wrongly denied was or could have been raised on appeal, and because it was raised and denied, raising it again was an abuse of the writ. Ex. 19. The Superior Court also found that his actual innocence claim was conclusory and failed to demonstrate actual innocence, and that his ineffective assistance of trial counsel claim was raised and rejected in the 2009 petition, was untimely, and failed to demonstrate ineffective assistance of counsel.
In August 2012, Petitioner filed a petition for a writ of habeas corpus in the California Court of Appeal. Ex. 20. The Court of Appeal denied it "for all the same reasons stated by the superior court in its order denying this same petition, along with the fact the petition is untimely, repetitious, and successive." Ex. 21.
In September 2012, Petitioner filed a petition for review of the California Court of Appeal's denial of his habeas petition in the California Supreme Court, which denied it in October 2012.
In November 2012, Petitioner informed this Court that the California Supreme Court had denied his petition, and moved to reopen the action and lift the stay. Docket No. 16. In June 2013, the Court lifted the stay and directed Petitioner to file an amended petition. Docket No. 19.
In July 2013, Petitioner filed an amended petition. Docket No. 23.
II. Statement of Facts
On August 18, 2007, Nicole Lewis and her two daughters, aged five and two, visited Mother's Beach on the Russian River in Sonoma County. Ms. Lewis's eldest daughter told her mother that she had seen something in a bush nearby. Ms. Lewis dismissed the child's concern. The child again told her mother she had seen something in the bushes. This second time, Ms. Lewis turned to see what the child was talking about. At trial, Ms. Lewis testified that she saw Petitioner in the bushes masturbating. She described seeing Petitioner touching his erect penis while looking toward her and her daughters. Ms. Lewis testified that after she yelled at Petitioner, he walked away very quickly with a slight limp.
In her description to the police, Ms. Lewis identified the man who exposed himself to her and her daughters as weighing between 170 and 200 pounds, with a gray mustache and stubbly beard. At trial, Ms. Lewis identified Petitioner as the man who exposed himself to her and her daughters.
A federal court may entertain a habeas petition from a state prisoner "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 (AEDPA) of 1996, a district court may not grant habeas relief 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); Williams v. Taylor, 529 U.S. 362, 412 (2000).
A state court decision is "contrary to" Supreme Court authority, that is, falls under the first clause of § 2254(d)(1), only 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 Supreme] Court has on a set of materially indistinguishable facts." Id. at 412-13. A state court decision is an "unreasonable application of" Supreme Court authority, that is, it falls under the second clause of § 2254(d)(1), if it 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 concludes in its independent judgment that the relevant state-court decision applied clearly established federal law erroneously or incorrectly." Id. at 411. Rather, the application must be "objectively unreasonable" to support granting the writ. Id. at 409. Under AEDPA, the writ may be granted only "where there is no possibility fairminded jurists could disagree that the state court's decision conflicts with this Court's precedents." Harrington v. Richter, 131 S.Ct. 770, 786 (2011). If constitutional error is found, habeas relief is warranted only if the error had a "substantial and injurious effect or influence in determining the jury's verdict.'" Penry v. Johnson, 532 U.S. 782, 795 (2001) (quoting Brecht v. Abrahamson, 507 U.S. 619, 638 (1993)).
When there is no reasoned opinion from the highest state court to consider the petitioner's claims, the court looks to the last reasoned opinion of the highest court to analyze whether the state judgment was erroneous under the standard ...