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Smith v. Hatton

United States District Court, S.D. California

April 10, 2017

Scott W. Smith, Petitioner,
v.
Shawn Hatton, Warden, Respondent.

          REPORT AND RECOMMENDATION GRANTING RESPONDENT'S MOTION TO DISMISS [ECF NO. 9]

          HON. JILL L. BURKHARDT UNITED STATES MAGISTRATE JUDGE.

         This Report and Recommendation is submitted to United States District Judge Larry Alan Burns pursuant to 28 U.S.C. § 636(b)(1) and Local Civil Rule HC.2 of the United States District Court for the Southern District of California.

         I. INTRODUCTION

         Petitioner Scott W. Smith (“Petitioner”), a state prisoner proceeding pro se, filed a Petition for Writ of Habeas Corpus (the “Petition”) pursuant to 28 U.S.C. § 2254. (ECF No. 5, hereinafter “Pet.”)[1] Before the Court is Respondent's Motion to Dismiss on the grounds that Petitioner's first claim for habeas relief is not a federal constitutional claim; the Petition is an unauthorized second petition; and the Petition is barred as untimely by the Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”) statute of limitation under 28 U.S.C. § 2244(d). (ECF No. 9-1.) Petitioner did not file an opposition to the motion to dismiss.[2]

         The Court, having reviewed the operative Petition, Respondent's Motion to Dismiss, and the state court records filed, concludes that the Petition is barred as a successive petition and as it is untimely under AEDPA's one-year statute of limitation. Accordingly, the Court RECOMMENDS that Respondent's Motion to Dismiss (ECF No. 9) be GRANTED.

         II. PROCEDURAL HISTORY

         On September 5, 2002, Petitioner entered a guilty plea to willfully and unlawfully committing a lewd and lascivious act upon a child under the age of 14 years in violation of Cal. Penal Code § 288(a). (ECF No. 10-2 at 3-7; see also ECF 10-5 at 9 (Count 1), 104, 112.) He further admitted having two strike priors for separate incidents, one for violation of Cal. Penal Code § 288(a) and one for violation of Cal. Penal Code § 288(b). (ECF No. 10-2 at 8-9.) On December 30, 2002, and in accordance with the plea, the Superior Court of California sentenced Petitioner to prison for a stipulated term of 25 years to life. (ECF Nos. 10-4 at 2, 6.) See also People v. Smith, No. D041776, 2004 WL 348882, at *1 (Cal.Ct.App. Feb. 25, 2004).

         On March 7, 2003, Petitioner initiated a direct appeal by filing a notice of appeal. (ECF No. 10-5 at 94-102; ECF No. 10-6 at 6.) On direct appeal to the California Court of Appeal, Petitioner's appellate counsel filed a brief that requested a review of the record for error, but raised no specific issues as permitted under People v. Wende, 25 Cal.3d 436 (1979).[3] (ECF Nos. 10-6, 10-7.) In addition, with leave of court, Petitioner filed a supplemental brief before the Court of Appeal. (ECF Nos. 10-7, 10-8.)

         The Court of Appeal provided the following summary of Petitioner's claims on direct appeal:

He states that he is unable to file a supplemental brief because he does not have the trial court transcripts. He contends the rule precluding raising an issue in a collateral proceeding if it has been raised on appeal deprives him of due process of law. However, he informally states that his appellate counsel was ineffective in filing the Wende brief when issues exist regarding effective assistance of trial counsel; the trial court failing to hold a Marsden hearing (People v. Marsden (1970) 2 Cal.3d 118) or an evidentiary hearing on his motion to withdraw the guilty plea; the entry of the guilty plea not meeting the requirements of In re Tahl (1969) 1 Cal.3d 122 and Boykin v. Alabama (1969) 395 U.S. 238; and the court not inquiring into a factual basis for the guilty plea.

(ECF No. 10-9 at 2.) The Court of Appeal reviewed the entire record and affirmed the judgment of the Superior Court on February 25, 2004. (ECF No. 10-9.) Petitioner did not seek review in the California Supreme Court. (ECF No. 10-10 at 5-6; ECF No. 10-16 at 3.)

         Next, Petitioner timely initiated and completed a full round of state habeas corpus petitions. (See ECF No. 10-16.) The Superior Court denied the first habeas petition in a written opinion on May 26, 2004. (ECF No 10-17 at 4.) On September 21, 2004, the Court of Appeal denied the second petition in a written decision. (Id.) Then, on September 21, 2005, the California Supreme Court denied the final petition without citation of authority. (Id.) By the end of 2005, Petitioner had exhausted the following habeas issues in state court: (1) whether his Sixth Amendment right to competent counsel was violated when his appellate counsel allegedly rendered ineffective assistance; (2) whether his Sixth Amendment right to competent counsel was violated when his trial counsel allegedly rendered ineffective assistance; (3) whether the state trial court violated his Fourteenth Amendment right to due process and his Sixth Amendment right to a fair trial by allegedly failing to ensure his guilty plea was entered knowingly, voluntarily and intelligently, failing to ensure there was a factual basis for his guilty plea, admitting the facts of his prior conviction under Penal Code section 1108, and failing to properly handle his motion to withdraw his guilty plea. (Id. at 5.)

         On December 21, 2005, Petitioner filed a federal habeas corpus petition, raising the same claims that he had previously exhausted in the state courts. (Id. at 4-5.) The district court analyzed the 2005 petition on the merits, denied each claim for habeas relief with prejudice, and entered judgment on July 10, 2007. (ECF No. 10-17.)

         More than seven years later, after the California Supreme Court decision in People v. Vargas, 59 Cal.4th 635 (2014), Petitioner filed a petition for writ of habeas corpus in the California Superior Court, case number HSN-1412. (See ECF No. 10-19.) At that time, Petitioner claimed that he was given two strike priors for one crime and one victim, which he argued was unconstitutional and should be stricken under Vargas. (Id. at 1.) On October 22, 2015, the Superior Court denied the Petition on the merits. (Id. at 1-2.) The court concluded that “Petitioner's claim that his two strikes were based on the same act is incorrect and the reasoning of Vargas does not apply.” (Id. at 2.)

         On November 10, 2015, Petitioner filed a petition for writ of habeas corpus in the California Court of Appeal, case number D069202, wherein he raised the same claim that had been presented in the Superior Court. (ECF No. 10-20.) Petitioner also raised claims that his trial counsel provided constitutionally ineffective assistance by failing to argue Petitioner's two prior convictions could not be counted as two separate strikes; the prosecution denied him due process by requesting and obtaining imposition of a third-strike sentence based on those convictions without an evidentiary hearing; and the Superior Court denied him due process by misapplying Vargas and denying the habeas corpus petition he filed in that court without holding an evidentiary hearing. (Id.; ECF No. 10-21 at 1-2.)

         On November 13, 2015, the California Court of Appeal denied the petition. (ECF No. 10-21.) It determined that the entire petition was barred as untimely “without any explanation for the long delay.” (Id. at 2.) Further, with respect to Petitioner's claim of ineffective assistance of counsel, the Court of Appeal held that it was also barred as a successive petition “because it is merely a variation on claims considered and rejected on direct appeal and in his prior habeas corpus petitions.” (Id.) Finally, the Court of Appeal denied Petitioner's petition on the merits, reasoning:

Even if Smith's petition were not procedurally barred, it would fail on the merits. His claim the prosecution did not adequately prove his prior convictions for purposes of sentencing under the Three Strikes law is an attack on the sufficiency of the evidence, which is “not cognizable in a habeas corpus proceeding.” (In re Reno, supra, 55 Cal.4th at p. 505.) His claim based on Vargas, supra 59 Cal.4th 635, has no merit. In Vargas, the California Supreme Court considered “whether two prior convictions arising out of a single act against a single victim can constitute two strikes under the Three Strikes law” and “conclude[d] they cannot.” (Id. at p. 637.) Smith has not included with his petition the plea agreement, the transcript of the plea hearing, or any other document concerning his prior convictions that would allow this court to determine whether or not those convictions arose out of a single act against a single victim. His conclusory assertion “there was one victim, one act” is insufficient to sustain his pleading burden. (People v. Duvall (1995) 9 Cal.4th 464, 474.) The assertion is also contradicted by the superior court's order denying habeas corpus relief, which Smith attached to his petition and which states the plea agreement showed the two prior convictions were “for separate incidents.” Without presenting evidence the prior convictions did in fact arise out of a single act against a single victim, Smith cannot fault his trial counsel for not arguing the convictions could not be counted as separate strikes under the Three Strikes law. (See, e.g., In re Reno, supra, at pp. 499-500 [“unadorned and unexplained assertions of ineffective assistance of counsel . . . are inadequate to satisfy [petitioner's] pleading burden”]; People v. Stratton (1988) 205 Cal.App.3d 87, 93 [defendant must prove by preponderance of evidence that counsel's representation was deficient].)
Finally, this court does not consider Smith's objections to the superior court's order denying the petition for writ of habeas corpus he filed in that court. Such an order is not appealable or otherwise reviewable by this court. (In re Clark, supra, 5 Cal.4th at p. 767, fn. 7; In re Crow (1971) 4 Cal.3d 613, 621, fn. 8.).

(Id.)

         On March 14, 2016, Petitioner filed a petition in the California Supreme Court. (ECF No. 10-22.) On May 11, 2016, the California Supreme Court denied the petition with citation to People v. Duvall, 9 Cal.4th 464, 474 (1995) and In re Swain, 34 ...


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