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Douglas v. Ducart

United States District Court, E.D. California

August 9, 2016

GORDON ANDREW DOUGLAS, Petitioner,
v.
CLARK E. DUCART, Respondent.[1]

          FINDINGS AND RECOMMENDATIONS

          EDMUND F. BRENNAN MAGISTRATE JUDGE

         Petitioner is a state prisoner proceeding without counsel with a petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. He claims that his right to due process was violated by the state courts’ implementation of a federal court order issued in a previous federal habeas action filed by petitioner. Upon careful consideration of the record and the applicable law, it is recommended that petitioner’s application for habeas corpus relief be denied.

         I. Background

         On April 28, 1997, petitioner filed a petition for a writ of habeas corpus in this court. Douglas v. Cambra, No. 2:97-cv-775 KJM JFM P.[2] Therein, petitioner raised several claims challenging his 1993 conviction on charges of first degree murder in violation of Cal. Penal Code § 187, and arson of an inhabited dwelling in violation of Cal. Penal Code § 451(b), and his sentence of thirty-three years to life in prison imposed thereon. On November 1, 2007, the assigned magistrate judge recommended that habeas relief be granted on one of petitioner’s claims: that the evidence was insufficient to support his conviction for arson of an inhabited dwelling, in violation of Cal. Penal Code § 451(b). Case No. 2:97-cv-775 KJM JFM P, ECF No. 60. On February 25, 2008, the assigned district judge adopted the November 1, 2007 findings and recommendations, vacated petitioner’s conviction for a violation of Cal. Penal Code § 451(b), and remanded the matter to the state court with directions that the portion of petitioner’s sentence imposed for his conviction on the arson charge be stricken and that petitioner be re-sentenced on the lesser included offense of arson of a structure, in violation of Cal. Penal Code § 451(c).[3] Id., ECF No. 67. Petitioner appealed that order, challenging the remedy ordered by the district court. Id., ECF No. 69.

         On November 24, 2010, in a published opinion, the United States Court of Appeals for the Ninth Circuit held that the district court exceeded its habeas jurisdiction when it instructed the state court to revise its judgment to enter a sentence for petitioner’s conviction of the lesser included offense of arson of a structure. The Ninth Circuit vacated the district court opinion, and remanded the matter to the district court with instructions to issue a conditional writ of habeas corpus if the state court did not resentence petitioner within ninety days. Douglas v. Jacquez, 626 F.3d 501 (9th Cir. 2010).[4]

         On remand the District Court issued the following order:

Petitioner’s fifth claim for relief is granted to the extent that petitioner’s conviction for violation of California Penal Code section 451(b) is vacated if the state court, after ninety (90) days of the entry of this order, declines to re-sentence petitioner under section 451(c).

Douglas v. Jacquez, No. 2:97-cv-775 KJM JFM P, ECF No. 89.

         Petitioner subsequently filed a petition for a writ of certiorari in the United States Supreme Court. Id., ECF No. 92 at 20. By order dated January 9, 2012, that petition was summarily denied. Id.

         Meanwhile, in state court, the California Attorney General sent the Sacramento Superior Court a letter describing the matters set forth above, and the prosecutor filed a request in Superior Court that petitioner be sentenced on the lesser included offense of violating Cal. Penal Code § 451(c), arson of a structure. Resp’t’s Lodg. Doc. 2. In response, on September 2, 2011, the Superior Court issued a tentative ruling in which it concluded that it did not have jurisdiction to re-sentence petitioner for a violation of Cal. Penal Code § 451(c). Id. Instead, the Superior Court ordered that petitioner’s conviction for a violation of § 451(b) would be stricken from the record 90 days after the June 29, 2011 order signed by the federal district court, with no further action taken. Id. Specifically, the Superior Court opined as follows:

Thus, this court must await 90 days from June 29, 2011, for the Penal Code § 451(b) conviction to be deemed stricken, and after that time will have jurisdiction only to correct the unlawful sentence that currently includes punishment for the Penal Code § 451(b) offense. This court will not have jurisdiction to substitute a Penal Code §451(c) conviction for the stricken Penal Code § 451(b) conviction at that time.

Id. at consecutive p. 5.

         Petitioner subsequently filed in the Superior Court a motion “for an order correcting an unauthorized sentence in this matter” and to “strike a victim restitution award to the Sacramento Fire Department in the amount of $2, 663.81.” Resp’t’s Lodg. Doc. 3 at consecutive p. 1. In response, the Sacramento County Superior Court issued an order stating:

As of September 26, 2011, the Penal Code § 451(b) conviction has been deemed to have been stricken, pursuant to this court’s order issued on September 2, 2011. The clerk of the court, however, still needs to prepare a blue sheet minute order to memorialize this, and to prepare an amended abstract of judgment reflecting the sentence for the murder conviction and that the Penal Code § 451(b) conviction was stricken per court order on September 2, 2011.

Id.

         That court denied petitioner’s request that the restitution award be stricken, explaining that:

Defense counsel, however, is mistaken in arguing that the victim restitution awarded to the Sacramento Fire Department must be vacated now that the Penal Code § 451(b) conviction has been stricken. The evidence remains that defendant set fire to the victim’s residence in an attempt to cover up the murder that he had just committed. It was a mere technicality that has ended in the striking of the Penal Code §451(b) conviction, due to the fact that the victim was already dead when the residence was set on fire, thereby rendering the residence one that was no longer inhabited. If the trial court had realized the error at the time of trial, instruction on a Penal Code § 451(c) offense would have been given and would have resulted in a guilty verdict on that offense. As the evidence at trial clearly showed arson of the victim and the victim’s residence as an act intended to cover up the murder, and thus was a part of the continuing course of conduct of the defendant, victim restitution based on the arson was properly awarded for the murder itself. As defense counsel makes no other challenge to the award of victim restitution, and as this court has no jurisdiction to entertain any other challenge to the award in a postjudgment motion, there is no need to disturb the award of victim restitution imposed in this case.

Id. at consecutive p. 2. The Superior Court directed the Clerk of Court to: (1) prepare a minute order, nunc pro tunc to September 26, 2011, indicating that petitioner’s conviction for a violation of Cal. Penal Code § 451(b) was stricken from the state court record pursuant to Douglas v. Jacquez, 626 F.3d 501 (9th Cir. 2010) and the Superior Court order issued on September 2, 2011; and (2) prepare an amended abstract of judgment reflecting petitioner’s murder conviction but noting that petitioner’s conviction pursuant to § 451(b) was stricken pursuant to the Superior Court’s order of September 2, 2011. Id. at consecutive p. 3. The Clerk of Court subsequently carried out this order. Id. at consecutive p. 10.

         On April 24, 2012, based upon the stipulation of the parties, the federal district court dismissed Douglas v. Cambra, No. 2:97-cv-775 KJM JFM P in its entirety and that case was closed. Case No. 2:97-cv-775 KJM JFM P, ECF No. 95.

         Thereafter, on August 28, 2012, petitioner filed a petition for a writ of habeas corpus in the California Superior Court, Resp’t’s Lodg. Doc. 4, claiming that the Superior Court’s December 7, 2011 order did not comply with the Ninth Circuit decision in Douglas v. Jacquez, 626 F.3d 501 (9th Cir. 2010). He argued, in essence, that the state court should have ordered that he was “acquitted” on the charge of arson of an occupied dwelling rather than simply striking that conviction from the record. Id. He explained that because the Superior Court struck his arson conviction instead of issuing an order of acquittal, it “continued to use and hold arson evidence against petitioner, even though it has no jurisdiction and no power to hear and determine it.” Id. The Superior Court construed these allegations as a claim that “[petitioner] should be deemed acquitted of the arson rather than merely having the arson conviction ‘stricken.’” Resp’t’s Lodg. Doc. 5, at 1. The court noted that there may have been a technical error in utilizing the word “stricken” instead of “vacated” in its December 7, 2011 order, but the semantical distinction is one without any substantive difference. Id. at 1-4. The court ruled as follows:

Petitioner has filed the instant habeas petition, as Sacramento County Superior Court Case No. 12HC00420, to challenge this court’s December 7, 2011 order in Sacramento County Superior Court Case No. CR113481. Specifically, he claims that this court “imposed and carried out an unlawful Ninth Circuit order, Douglas v. Jacquez (9th Cir. 2010) 626 F.3d 501.” He claims that “[a]bsent an acquittal of his arson conviction, there is simply nothing in the record supporting an order by the state court compelling petitioner’s strickened arson order.” Rather, []he claims “there was one appropriate course of action and one course only: the issuance of a conditional writ ordering petitioner’s acquittal on the arson charge.” He claims that the federal district court’s “finding of insufficient evidence” was the “legal equivalent of an entry of a judgment of acquittal at trial.” He appears to take issue with this court’s use of the terminology in the December 7, 2011 order that the arson conviction is “stricken” rather than that he has essentially been “acquitted” of the charge.
Petitioner also mentions his defense counsel’s post-Douglas v. Jacquez motion to strike the victim restitution awarded to the Sacramento Fire Department, but does not appear to raise any actual claim with regard to the motion and this court’s order regarding the motion. Rather, he incorporates it into a continued attack on the court’s use of the word “stricken.” He attempts to allege the same attack as three separate grounds, but the attack appears to be virtually the same claim, that he should be deemed acquitted of the arson rather than merely having the arson conviction “stricken.”
The matter is one of semantics. When a defendant claims insufficiency of the evidence on direct appeal of a conviction, and the appellate court agrees and finds the evidence insufficient, the appellate court will typically “reverse” the conviction. “‘A reversal based on the insufficiency of the evidence has the same effect [as a judgment of acquittal] because it means that no rational factfinder could have voted to convict the defendant.’” (People v. Seel (2004) 34 Cal.4th 535, 544). The appellate courts have also directed that a conviction be “stricken” for insufficiency of the evidence, on direct appeal (see People v. Espinoza (2002) 95 Cal.App.4th 1287, 1324). In this case, however, it was the federal court on collateral review that invalidated the conviction due to insufficiency of the evidence. Upon re-examination of the June 29, 2011 order from the United States District Court, E.D. California, in Douglas v. Jacquez, Docket No. CIV S-07-0775 KJM JFM (HC), it now appears to this court that the exact language of the federal district court was as follows: “Petitioner’s fifth claim for relief is granted to the extent that petitioner’s conviction for violation of California Penal Code section 451(b) is vacated if the state court, after ninety (90) days of the entry of this order, declines to re-sentence petitioner under section 451(c)” [emphasis added]. As such, it appears that this court may have made a technical error in semantics in utilizing the word “stricken” instead of “vacated” in its December 7, 2011 order, a distinction without any substantive difference.
Although the vacating of the conviction for arson may be viewed as having the same effect as a judgment of acquittal, petitioner does not demonstrate that he is entitled to a court order specifically proclaiming that he has been “acquitted” of violating Penal Code § 451(b). Rather, all he is entitled to is an order correcting the December 7, 2011 order to reflect the exact wording of the federal court order in Douglas v. Jacquez, that the conviction is “vacated” rather than “stricken.” In the interest of judicial economy, correcting the use of “stricken” to instead be “vacated” is more easily achieved by the court, on its own motion, modifying its ruling on December 7, 2011, to instead require the clerk of the court to forthwith: (1) prepare a blue sheet minute order, nunc pro tunc to September 26, 2011, indicating that “The PC 451(b) conviction is deemed vacated, pursuant to Douglas v. Jacquez (9th Cir. 2010) and this court’s orders issued on 9/2/11 and [date of issuance of the instant order], ” (2) prepare an amended abstract of judgment reflect the murder conviction and reflecting, in an asterisk at the bottom of the page, that “The PC 451(b) conviction was vacated per court’s orders of 9/2/11 and [date of issuance of the instant minute order], ” and (3) give notice of the new order, the blue sheet minute order, and the amended abstract of judgment to the Department of Corrections and Rehabilitation, the California Attorney General, the Sacramento County District Attorney, defense counsel Joseph B. de Illy, and defendant Gordon Douglas.

Id. The Clerk of the Sacramento County Superior Court subsequently issued an amended abstract of judgment on October 17, 2012, reflecting that petitioner had been convicted of murder; that he had received a sentence of twenty-five years to life on that charge; that petitioner’s conviction pursuant to Cal. Penal Code § 451(b) had been “vacated per court’s order of 9/2/11 and October 17, 2012;” and that petitioner had been assessed fines payable to a victim and to the Sacramento Fire Dept. Resp’t’s Lodg. Doc. 1.

         On December 21, 2012, petitioner filed a petition for a writ of habeas corpus in the California Supreme Court, in which he raised the same claims that he had raised in his habeas petition filed in the Superior Court. Resp’t’s Lodg. Doc. 6. The California Supreme Court summarily denied that petition on March 13, 2013. Resp’t’s Lodg. Doc. 7.

         Petitioner filed the instant federal habeas petition on April 8, 2013. ECF No. 1. Respondent filed an answer on April 7, 2014, and petitioner filed a traverse on May 15, 2014. ECF Nos. 19, 21.

         II. Standards of Review Applicable to ...


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