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Tarr v. Attorney General for State

United States District Court, S.D. California

April 11, 2017

BRYAN TARR, Petitioner,
v.
ATTORNEY GENERAL FOR THE STATE OF CALIFORNIA Respondent.

          REPORT AND RECOMMENDA-TION RE PETITION FOR WRIT OF HABEAS CORPUS

          HON. KREN S. CRAWFORD UNITED STATES MAGISTRATE JUDGE.

         Petitioner Bryan Tarr, proceeding pro se, filed a Petition for Writ of Habeas Corpus (“Petition”) challenging his judgment of conviction in San Diego Superior Court Case No. EDD7332 for contempt as a result of his failure to make complete spousal support payments. [Doc. No. 1, at p. 1.] Petitioner was found in contempt and incarcerated for about 65 days beginning on January 15, 2015. [Doc. No. 1, at p. 1.]

         The Petition alleges that: (1) petitioner was denied his Due Process right to counsel at his contempt hearing, because his appointed counsel was dismissed without any opportunity to obtain new counsel; and (2) petitioner was denied his right to Due Process at his contempt hearing, because the trial court did not grant his request for a continuance to prepare for trial.1 [Doc. No. 1, at p. 2.] Respondent argues that the Petition should be dismissed as moot, because petitioner's sentence is completed and he is no longer incarcerated. [Doc. No. 8-1, at p. 6.] Alternatively, respondent argues that the Court should deny the Petition, because petitioner did not have a right to counsel, and, even if he did have a right to counsel, he waived that right when he insisted on representing himself. [Doc. No. 8-1, at pp. 6-8.]

         This Court has reviewed the Petition [Doc. No. 1]; respondent's Answer and supporting Memorandum of Point and Authorities [Doc. No. 8]; the Lodgments submitted by respondent, including the state court record [Doc. No. 9]; and petitioner's Traverse [Doc. No. 10]. For the reasons outlined below, IT IS HEREBY RECOMMENDED that the District Court DENY the Petition in its entirety.

         Procedural History

         Petitioner was married in 1991, and he and his wife separated in 2008. In re Marriage of Tarr, 2012 WL 2899072, at *1 (Cal.Ct.App., July 17, 2012, No. D059223). The Petition in this case arises from a spousal support order in their marital dissolution proceeding. On June 1, 2015, while petitioner was present, the San Diego Superior Court (the “trial court”) issued an Order to Show Cause and an Affidavit for Contempt in Case No. ED73327 ordering petitioner to appear on July 29, 2015 to offer any legal reason why he should not be found guilty of contempt for his willful failure to comply with a spousal support order. [Doc. No. 9-1, at p. 4-5.] An attached affidavit and other documentation shows amounts due under a spousal support order as well as the outcomes • Petitioner raises these same claims under the Federal Constitution and the “corresponding provisions of the California Constitution.” [Doc. No. 1, atp.4.] To the extent petitioner raises claims under the California Constitution, his claims are not cognizable on Federal habeas review. Estelle v. McGuire, 502 U.S. 62, 68 (1991) (stating that “it is not the province of a federal habeas court to reexamine state-court determinations on state-law questions. In conducting habeas review, a federal court is limited to deciding whether a conviction violates the Constitution, laws, or treaties of the United States.”).of prior contempt proceedings against petitioner. [Doc. No. 9-1, at p. 6-13.] On July 29, 2015, petitioner's counsel appeared before the court on petitioner's behalf for an arraignment on the charges, and a contempt hearing was set for August 7, 2015. [Doc. No. 9-1, at p. 25.]

         On August 6, 2015, petitioner filed a Response to the Application for Contempt. The response was filed “in pro per.” [Doc. No. 9-1, at p. 15.] In the Response, petitioner argued he was entitled to a jury trial because each of the counts against him could subject him to jail time. [Doc. No. 9-1, at p. 16.] He also argued that the action for contempt should be denied because he did not willfully violate the spousal support order. Rather, petitioner claimed he did not have the ability to pay, because he was not “gainfully employed.” [Doc. No. 9-1, atp. 16-18.]

         On August 7, 2015, the parties appeared before the trial court for a contempt hearing, and the record before this Court includes a transcript of this hearing. [Doc. No. 9-1, at p. 20.] During the hearing, petitioner twice stated on the record that he wished to relieve his retained counsel and represent himself, even though the trial court warned him that it was not in his best interest to do so. [Doc. No. 9-1, at pp. 24-28.]

         Petitioner also argued he was entitled to a jury trial, but the trial court denied petitioner's request. As the trial court explained, a jury trial is required under California law when the defendant faces 180 or more days in jail, and petitioner's maximum exposure was only 65 days. [Doc. No. 9-1, at pp. 29-30.] Next, petitioner requested a continuance so he could “properly prepare for this.” [Doc. No. 9-1, at p. 30.] However, the trial court denied petitioner's request for a continuance. [Doc. No. 9-1, at pp. 30-31.]

         Next, the trial court heard testimony from petitioner's former wife. [Doc. No. 9-1, at p. 31.] She testified that petitioner did not meet his court-ordered spousal support obligations for various months in 2012, 2013, and 2015 and indicated she was alleging eight counts of contempt. [Doc. No. 9-1, at p. 32-38.] Petitioner's former wife also presented wage and asset exhibits and testimony to show petitioner was able to make the required spousal support payments. [Doc. No. 9-1, at p. 40-60.] She further testified about repeated difficulties in collecting spousal support from petitioner since 2008. [Doc. No. 9-1, atpp. 61-62.]

         Petitioner was then asked if he wished to present any evidence, and he said, “I don't have any evidence at this time, your Honor.” [Doc. No. 9-1, at p. 62.] Based on the evidence presented, counsel for petitioner's former wife argued that the trial court should find petitioner in contempt because he had the ability to meet his spousal support obligations but failed to do so. [Doc. No. 9-1, at pp. 63-68.] The Court asked petitioner, “anything you want to say to the Court?” Petitioner replied, “All r m saying is that I live at home with my parents. I have a used car, and I'm doing my best to be gainfully employed to pay everything that I can to meet my obligations, and I paid over - more than half of the obligations. ...I'm sorry your Honor. It's my intention to continue to find more and more gainful employment so I cannot only meet my obligations, to be able to catch up on obligations where I haven't been able to pay everything in Ml.” [Doc. No. 9-1, atp.68J Based on the evidence presented by petitioner's former wife and petitioner's failure to present any evidence of an inability to pay, the trial court concluded there was a “willful failure to pay” and found petitioner in contempt. [Doc. No. 9-1, at pp. 63, 69.] A sentencing hearing was scheduled for August 14, 2015 and petitioner was ordered to return on that day. [Doc. No. 9-1, at pp. 69-70, 74.] At the sentencing hearing, the trial court imposed “65 days of PSP”2 to be “completed within 150 days” of August 14, 2015 and directed petitioner to report to probation. [Doc. No. 9-1, at pp. 82-83.] Areview hearing was set for October 30, 2015. [Doc. No. 9-1, at p. 83.]

         On September 29, 2015, the trial court had a hearing to consider petitioner's ex parte request to stay the judgment and sentence while he pursued an appeal of the trial court's contempt order. [Doc. No. 9-1, at p. 93, 104.] During this ex parte hearing, » “PSP” refers to community service or working on public works projects. [Doc. No. 9-1, atp. 85.]

         petitioner indicated that he wanted to stay the sentence of 65 hours of community service, because he did not have time to work, look for employment, and complete the community service hours on the schedule imposed by the trial court. [Doc. No. 9-1, at pp. 95-96.] He said he only has as much work as he can find. “Hopefully 30 hours a week” with additional time to find that work. [Doc. No. 9-1, at p. 96.] He does internet marketing for various clients and needs time to find that work. [Doc. No. 9-1, at pp. 96-97.]

         The trial court explained that people who are sentenced to do community service and have a job usually do their community service hours on the weekend. So that petitioner would not lose his job, the trial court offered to modify the order to allow petitioner more time to complete the community service hours. [Doc. No. 9-1, at pp. 97-98.] However, petitioner argued that would still not give him enough time to find work. [Doc. No. 9-1, at p. 98.]

         The trial court also said, “You never gave me any evidence of your appointment schedule, so how am I supposed to take it into consideration if you never give me that information?... I don't have to ask for it. You're supposed to provide it to me. In other words, if you want me to consider something, you have to give it to me. I don't have an obligation to ask you. I was given no evidence of your employment schedule for me to consider.... That's your burden.” [Doc. No. 9-1, at p. 93-96.] Although the trial court indicated it would consider allowing petitioner extra time to complete his community service, petitioner was forewarned that by the time of the review hearing on October 30, 2015 he needed to show an average of two days of community service per week. [Doc. No. 9-1, at p. 104-105.] The trial court denied petitioner's request for a stay. [Doc. No. 9-1, at pp. 104-105.] Thereafter, on October 6, 2015, the record indicates that petitioner filed a Notice of Appeal in the California Court of Appeal seeking to overturn the trial court's contempt order. [Doc. No. 9-2, at p. 1.]

         On October 29, 2015, petitioner served a status report stating he completed two days of community service on August 18 and 20, 2015. [Doc. 9-1, at p. 90] Petitioner explained in his status report that he was unable to serve 60 days of community service “on such an expedited schedule, ” because that would mean he would be unable to work enough hours to pay his ongoing spousal support obligations. [Doc. No. 9-1, at p. 86.]

         On October 30, 2015, the trial court held a status hearing. The minutes of the hearing state as follows: “[Petitioner] is admonished that if proof of completion is not provided to the court on or before 1-15-2016, the court intends to remand him for failure to complete PSP for every missed day of PSP.” [Doc. No. 9-6, at p. 3.]

         On November 13, 2015, the California Court of Appeal dismissed petitioner's appeal of the trial court's contempt ruling. The California Court of Appeal reasoned that a judgment of contempt ...


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