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Mills v. Spearmman

United States District Court, E.D. California

June 27, 2016

MARION SPEARMAN, Warden, High Desert State Prison, [1] Respondent.


          JAMES K. SINGLETON, JR. Senior United States District Judge.

         Joshua David Mills, a state prisoner represented by counsel, filed a Petition for a Writ of Habeas Corpus with this Court pursuant to 28 U.S.C. § 2254. Mills is in the custody of the California Department of Corrections and incarcerated at High Desert State Prison. Respondent has answered, and Mills has replied.


         On December 23, 2009, Mills was charged with gassing by a prisoner upon a peace officer[2] (count 1) and three counts of resisting an executive officer (counts 2 through 4). The information further alleged that Mills had sustained two prior strike convictions. On direct appeal of his conviction, the California Court of Appeal laid out the following facts underlying the charges against Mills:

On September 24, 2008, [Mills] appeared for a family law hearing in Placer County Superior Court. At the time, he was serving a 20-year four-month prison sentence in Pelican Bay State Prison. Deputy Preis escorted [Mills] into the courtroom and seated him at counsel table. [Mills] was shackled in belly and leg chains.
When the hearing started, [Mills] began looking around the courtroom. The bailiff on duty in the courtroom, Deputy Riggs, told [Mills] to face forward and listen to Commissioner Ross, the judicial officer presiding over the hearing. Deputy Preis, who had been standing at the back of the courtroom, began walking towards [Mills]. When Deputy Preis got to the railing doors, Deputy Riggs placed her hand on [Mills’] left shoulder and told him he “need[ed] to face forward while sitting in the court” and not to “look around the courtroom.” [Mills] responded: “Fuck you; I’ll look around where I want.” [Mills] then turned and faced the audience.
Deputy Preis placed his hand on [Mills’] right shoulder and said, “Mr. Mills, you need to be calm and listen to what you’re being told.” [Mills] responded, “Fuck both of you.” Commissioner Ross instructed [Mills] that he needed to listen to the bailiffs’ directions. In response, [Mills] said, “Fuck you too.” Commissioner Ross ordered the bailiffs to remove [Mills] from the courtroom.
[Mills] refused to follow the bailiffs’ multiple instructions to stand. The bailiffs then lifted [Mills] onto his feet as he continued to resist. Once standing, the bailiffs attempted to escort [Mills] out of the courtroom. [Mills] continued to be uncooperative, unleashing a slew of profanities and trying to sit down or otherwise resist leaving the courtroom. While the deputies were propelling [Mills] forward towards the courtroom doors, [Mills] was leaning back against the deputies resisting any forward movement. [Mills] then spit on Deputy Riggs’s cheek and in her eye. After spitting on Deputy Riggs, the deputies took [Mills] to the ground to subdue him, and Commissioner Ross activated the panic alarm. [Mills] continued to struggle and yell profanities while being held on the ground. Additional officers arrived, placing a spit mask on [Mills] before escorting him from the courtroom while [Mills] continued to yell profanities, including “fuck all you bitches.”
Nearly a year later, on September 23, 2009, [Mills] appeared in court for another family law hearing before Commissioner Ross. [Mills] was still serving his state prison sentence at Pelican Bay, and was wearing belly chains and leg shackles. When Commissioner Ross read his ruling against [Mills], he flipped off the commissioner with both hands above counsel table. Because Commissioner Ross did not appear to notice [Mills’] conduct, [Mills] began shaking his chains while continuing to flip off the commissioner.
Given [Mills’] actions and his previous inappropriate courtroom behavior, Deputy Kemper told [Mills] it was time to leave the courtroom. [Mills] responded, “Why don’t you go fuck your mother.” Once the courtroom was cleared, Deputy Kemper instructed [Mills] to stand up. [Mills] replied, “I’m not fucking going anywhere.” After unsuccessfully attempting to place [Mills] in a wrist lock, [Mills] told Deputy Kemper, “Don’t you fucking touch me.” Deputy Kemper then pulled [Mills] to the ground by tipping his chair. [Mills] was yelling while being taken to the ground. After being subdued, [Mills] was escorted out of the courtroom by additional officers without further incident.

People v. Mills, No. C070089, 2013 WL 6185002, at *1-2 (Cal.Ct.App. Nov. 27, 2013).

         On October 12, 2011, Mills proceeded to a jury trial on the charges. At the conclusion of testimony of a prosecution witness, Mills moved for a mistrial after the witness violated a court order on Mills’ pre-trial motion in limine. After hearing oral argument on the mistrial motion and considering written briefing, the court declined to declare a mistrial. On October 26, 2011, the jury found Mills guilty on counts 1 and 2 and not guilty on counts 3 and 4, but guilty of the lesser included offense of resisting arrest in relationship to those counts. The trial court also found true the two prior strike and prison prior allegations.

         Mills then filed a written motion to dismiss the prior strike pursuant to People v. Superior Court (Romero), 917 P.2d 628 (Cal. 1996).[3] The court denied the motion and sentenced Mills to 25 years to life imprisonment on count 1 with an additional term of one year each for two prison prior allegations. The court stayed pursuant to California Penal Code § 654[4] the 25 years to life imprisonment sentence on count 2 and imposed concurrent sentences of 365 days each for counts 3 and 4.

         Through counsel, Mills appealed his conviction, arguing that the court erred in denying his motion for a mistrial and abused its discretion in refusing to dismiss the prior strike convictions. The Court of Appeal unanimously affirmed the conviction against Mills in a reasoned, unpublished decision issued on November 27, 2013. Mills, 2013 WL 6185002, at *6. Mills petitioned for review in the California Supreme Court, which was denied on February 11, 2014.

         Through his trial counsel, Mills filed a petition for habeas relief in the California Supreme Court. In that petition, Mills again argued that the trial court abused its discretion in denying his mistrial motion. He also raised his Romero claim, but contended that a prior conviction should have been struck because that conviction was based on an invalid plea. Finally, he argued that the trial court violated his due process rights during the sentencing phase. The Supreme Court denied the petition without comment on May 12, 2015.

         Mills’ trial/habeas counsel then filed a timely Petition for a Writ of Habeas Corpus to this Court on May 11, 2015. See 28 U.S.C. § 2244(d)(1)(A). Respondent moved to dismiss the Petition as an unauthorized second or successive application for federal habeas relief. Docket No. 11. A previously-assigned magistrate judge held a hearing on the motion, after which, he issued a report and recommendation that the third claim in the Petition, challenging the constitutionality of Mills’ 2002 plea conviction as the predicate for a strike, be dismissed because the underlying claim had previously been presented to this Court in case number 2:14-cv-00513-WBS-DAD. Docket No. 16. A previously-assigned district court judge adopted the findings and recommendations in full. Docket No. 23. The remaining claims have now been fully briefed and are before the undersigned judge for adjudication.


         In his counseled Petition before this Court, Mills now argues that the trial court erred by: 1) denying his mistrial motion; 2) denying his Romero ...

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