United States District Court, S.D. California
TROY D. WARD, Petitioner,
NEIL McDOWELL, Warden, Respondent.
REPORT AND RECOMMENDATION OF UNITED STATES MAGISTRATE
JUDGE RE: PETITION FOR WRIT OF HABEAS CORPUS [ECF NO.
MITCHELL D. DEMBIN, UNITED STATES MAGISTRATE JUDGE
Report and Recommendation is submitted to United States
District Judge Dana M. Sabraw pursuant to 28 U.S.C. §
636(b)(1) and Local Civil Rule 72.1(c) of the United States
District Court for the Southern District of California.
Ward (“Petitioner”), a state prisoner proceeding
pro se and in forma pauperis, seeks federal
habeas relief from convictions for one count of first-degree
burglary (Cal. Penal Code § 459), two counts of assault
by means of force likely to produce great bodily injury (Cal.
Penal Code § 245(a)(4)), one count of corporal injury to
a former cohabitant or spouse (Cal. Penal Code §
273.5(a)) and one count of vandalism under $400 (Cal. Penal
Code §594(a)). (ECF Nos. 1, 4); (Lodg. Nos. 3-2 at
312-15; 8 at 2). After reviewing the Petition [ECF No. 1],
Respondent's Answer and Memorandum of Points and
Authorities in support thereof (“Answer”) [ECF
No. 10], Respondent's Supplemental Response to the
Petition [ECF No. 15] and pertinent state court lodgments,
the Court RECOMMENDS Petitioner's federal Petition for
Writ of Habeas Corpus be DENIED.
determination of a factual issue made by a State court shall
be presumed to be correct.” 28 U.S.C. §
2254(e)(1). Petitioner has the “burden of rebutting the
presumption of correctness by clear and convincing
evidence.” Id.; see Jeffries v. Wood,
114 F.3d 1484, 1499 (9th Cir. 1997) overruled on other
grounds by Lindh v. Murphy, 521 U.S. 320 (1997) (stating
that federal courts are required to “give great
deference to the state court's factual findings.”).
Accordingly, the following facts are taken from the
California Court of Appeal's November 20, 2014, opinion
in People v. Troy D. Ward, Appeal No. D064330.
(See Lodg. No. 8).
A. Relationship Between Buganan and [Petitioner]
Buganan and [Petitioner] were involved in a dating
relationship starting in 2009. The relationship was
tumultuous, and they broke up but resumed dating over the
years. During one period of separation in 2010, [Petitioner]
was sentenced to state prison and served time after he was
convicted of committing domestic violence against Buganan,
who continued to visit [Petitioner] while he was
incarcerated, however, because she hoped they could work out
their problems and resume a romantic relationship. When
[Petitioner] was released from prison in the fall of 2011,
Buganan picked him up from the prison and took him to her
house and was intimate with him that night. They resumed
their dating relationship during the next nine months, and he
moved into Buganan's mobile home in the spring of 2012.
B. The Charged Offenses
About one month after [Petitioner] moved into Buganan's
home, she ended their relationship and told him to take his
possessions and move out. She told [Petitioner] she would put
his possessions on the back porch for him to pick up and
[Petitioner] said he would return to retrieve them. She put
his possessions on the porch and, after about one week, he
retrieved them. Buganan told [Petitioner] not to come to her
house any more. However, [Petitioner] continued to come to
her home. Buganan believed he entered the mobile home when
she was not there, and also believed he was responsible for
using an external water lever to turn off the water to the
mobile home on several occasions.
Buganan began a romantic relationship with Williams around
the time she told [Petitioner] to move out in 2011. On a
couple of occasions, she dropped Williams off so he could go
inside her mobile home while she parked her car, and
[Petitioner] approached Buganan and told her to have
“that punk” (referring to Williams) come outside.
On the evening of May 3, 2012, Buganan and Williams were at
the mobile home when Buganan realized the water to the mobile
home had again been shut off, and she suspected [Petitioner]
was responsible. She went to a sliding glass door in the
bedroom, carrying a small flashlight, to look outside for
[Petitioner]. Buganan put her eye up to the window to look
out and [Petitioner], standing just outside the door holding
a hammer, immediately struck the door and the glass
shattered. Glass flew into Buganan's eye and [Petitioner]
Buganan tried to escape from the bedroom into the hallway but
[Petitioner] stopped her by grabbing her and shoving her into
the corner of the room with such force that it caused
bruising to (and scratches on) her chest. He then put both
hands around her neck to choke her.
Williams, who heard the glass shatter and Buganan scream,
rushed into the bedroom. He saw [Petitioner] holding Buganan
by the neck against the wall. [Petitioner] released Buganan
and turned on Williams who, realizing [Petitioner] was about
to turn on him, told Buganan to leave. [Petitioner] grabbed
Williams and the two men began wrestling while Buganan ran
outside to summon help.
Williams testified the two men began wrestling and
[Petitioner] lifted Williams completely off his feet and
threw him through the shattered glass door. Williams landed
outside and jumped to avoid landing on an electrical box but
ended up landing on his head and neck area. He got up as
[Petitioner] pursued him through the door. [Petitioner]
punched him several times in the face and chest as he tried
to fight back. The men grappled and crashed through a
neighbor's fence, knocking it down. They both got up,
continuing to wrestle and throw punches, and [Petitioner]
threw Williams against a shed. The fight continued and they
ended on Buganan's car, with [Petitioner] on top.
However, Williams continued to fight back and [Petitioner]
started to flee. Williams caught and tried to hold him until
the sheriff arrived, but [Petitioner] was able to pull away
from Williams and run off. The fight lasted between five and
A deputy sheriff responding to the scene found Buganan
screaming and crying uncontrollably. The deputy also saw
Williams, who was naked, had sustained a cut near his left
eye around the temple area. He also suffered a cut to his leg
caused by the glass when he was fighting [Petitioner] on the
ground, a “big cut” to his thigh, and cuts on his
head, back and left side of his eye. Approximately one week
later, [Petitioner] was found near the mobile home park and
C. [Petitioner's] Prior Domestic Violence Against
During one of their periods of separation, [Petitioner]
borrowed Buganan's car to go to a medical appointment.
When Buganan could not locate [Petitioner] at the place of
the appointment, she (accompanied by her friends Sherri and
Elizabeth Rodriguez) went to [Petitioner's] workplace to
get her car. [Petitioner] opened the gate to allow Buganan
and Elizabeth onto the property while Sherri remained in
Buganan's truck. However, [Petitioner] was apparently
angry at Buganan and, after Elizabeth went back out the gate,
[Petitioner] closed the gate with Buganan still inside, and
began assaulting her. He struck her and knocked her down
several times, and threatened to kill her. Sheri [sic] and
Elizabeth demanded [Petitioner] stop and he let Buganan go,
and she started walking back to her truck. However, he
followed her and continued to grab her and knock her down.
When she reached the truck, he grabbed the chain around her
neck as though he was going to choke her. He then stopped the
assault and walked back inside the gate.
Buganan walked down the gravel road to locate Elizabeth, who
had gone to find help. Buganan heard Sherri yell, “Run.
He's coming down with the car, ” and they saw
[Petitioner] driving toward Buganan “pretty
fast.” Buganan, fearing [Petitioner] would hit her with
the car, first tried to seek shelter in a passerby's
vehicle, but when the passerby drove off, she ran behind a
tree and then behind a fence of another residential property.
[Petitioner] drove toward her at the fence, coming within a
few feet or inches. Buganan obtained assistance by calling an
ambulance from a nearby house and was treated at the hospital
for her injuries for several hours.
When she testified at his criminal proceedings for the 2010
assault, she was not completely honest because she thought
they could work out their relationship, and because she was
scared he might hurt her when he was released from prison.
Similar reasons led her to discount [Petitioner's]
actions when she spoke with personnel at the district
attorney's office in connection with the original 2010
[Petitioner] testified on his own behalf. At Buganan's
invitation, he went to her mobile home on May 3 to collect
his belongings. Buganan invited him inside and told him his
property was in the master bedroom but, when he went to the
bedroom, she tried to touch and hug him. He resisted her
advances but he then heard the front door open and Williams
came inside the mobile home, entered the bedroom, and
assaulted [Petitioner]. They wrestled and crashed through the
glass door and, after a few minutes of fighting, [Petitioner]
left because he was violating his parole by being at
(Lodg. No. 8 at 3-7).
convicted Petitioner of one count of first-degree burglary,
two counts of assault by means of force likely to produce
great bodily injury involving Buganan and Williams, one count
of corporal injury to a former cohabitant or spouse and
vandalism under $400. (Id. at 2). The Court found
true the special allegations that Petitioner had a prior
conviction, suffered two prior strike convictions, served
three prior prison terms and had two prior serious felony
convictions. (Id.). The Court sentenced Petitioner
to a term of 35 years to life. (Id.).
appealed from the trial court's judgment, raising seven
issues: (1) there was insufficient evidence to support his
convictions for assault against Buganan and Williams; (2)
there was insufficient evidence to support a burglary
conviction; (3) the trial court abused its discretion by
denying Petitioner's request to have Buganan's
ex-boyfriend testify; (4) the trial court abused its
discretion by admitting evidence of the conviction for the
2010 incident; (5) the trial court abused its discretion when
it denied Petitioner's motion to dismiss a prior strike
conviction under People v. Superior Court (Romero),
13 Cal.4th 497 (1996) (“Romero”); (6)
the trial court erred when it sentenced Petitioner to
concurrent terms on counts two and four instead of staying
the sentences on those counts; and (7) the court
miscalculated his custody credits. (Lodg. No. 5 at 19-67).
The Court of Appeal modified Petitioner's sentence by
staying count two pending successful service of the balance
of Petitioner's sentence, at which time the stay will
become permanent, and amended Petitioner's sentence to
reflect that he is entitled to 388 days of custody credits.
(Lodg. No. 8 at 29). The Court of Appeal otherwise affirmed
the judgment. (Id.).
December 30, 2014, Petitioner petitioned the California
Supreme Court for review of the Court of Appeal's
November 20, 2014, opinion. (Lodg. No. 9). Petitioner raised
four issues: (1) there was insufficient evidence to support
his convictions for assault against Buganan and Williams; (2)
the trial court abused its discretion by denying
Petitioner's request to have Buganan's ex-boyfriend
testify; (3) the trial court abused its discretion by
admitting evidence of the conviction for the 2010 incident;
and (4) the trial court abused its discretion when it denied
Petitioner's motion to dismiss a prior strike conviction
under Romero. (Id. at 10-41). On February
11, 2015, the California Supreme Court denied the petition
for review. (Lodg. No. 10).
January 14, 2016, Petitioner signed a petition for writ of
habeas corpus in the San Diego County Superior Court. (Lodg.
No. 11). Petitioner challenged his convictions on the grounds
that Petitioner received ineffective assistance of counsel.
(Id. at 3-8). On May 21, 2016, the San Diego County
Superior Court denied the petition on the merits. (Lodg. No.
12 at 4).
31, 2016, Petitioner filed a state habeas petition in the
California Court of Appeal, arguing that: (1) his counsel,
parole officer and Buganan “misled” him about
staying away from Buganan and her mobile home; (2) there was
no burglary because he lived in the mobile home; (3) the
trial court should have dismissed one or both of his strike
convictions; (4) he never had any weapons and was defending
himself; and (5) the prosecutor mixed up the 2012 facts with
the 2010 facts. (See Lodg. No. 13). The California
Court of Appeal denied the petition as untimely, because
Petitioner's arguments were raised and rejected on appeal
and because Petitioner's claims are not cognizable in a
habeas corpus proceeding. (Lodg. No. 14 at 2).
6, 2016, Petitioner signed a petition for writ of habeas
corpus in the California Supreme Court, raising the same
issues as his California Court of Appeal petition.
(See Lodg. Nos. 13, 15). On September 14, 2016, the
California Supreme Court denied the petition. (Lodg. No. 16).
December 12, 2016, the date of his signature, Petitioner
filed a petition for writ of habeas corpus pursuant to 28
U.S.C. § 2254 in this Court. (ECF No. 1). Petitioner
raises five grounds for relief: (1) there was insufficient
evidence to support his conviction for first-degree burglary;
(2) there was insufficient evidence to convict Petitioner of
assault by means of force likely to produce great bodily
injury upon Williams and Buganan; (3) the trial court erred
when it excluded the testimony of Buganan's ex-boyfriend;
(4) the trial court abused its discretion in admitting facts
from Petitioner's 2010 conviction; and (5) the trial
court abused its discretion in failing to strike one or both
of Petitioner's prior strike convictions. (Id.
March 14, 2017, Respondent filed an Answer, which addressed
only four of Petitioner's grounds for
relief. (ECF No. 10). On March 30, 2017, this
Court ordered Respondent to file a supplemental response to
the Petition addressing ground five. (ECF No. 30). On April
3, 2017, Respondent filed a supplemental response. (ECF No.
15). Petitioner did not file a traverse. (See
STANDARD OF REVIEW
Petition is governed by the provisions of the Antiterrorism
and Effective Death Penalty Act of 1996
(“AEDPA”). See Lindh, 521 U.S. 320.
Title 28, U.S.C. § 2254(a) provides the scope of review
for federal habeas corpus claims:
The Supreme Court, a Justice thereof, a circuit judge, or a
district court shall entertain an application for a writ of
habeas corpus in behalf of a person in custody pursuant to
the judgment of a State court only on the ground that he is
in custody in violation of the Constitution or laws or
treaties of the United States.
AEDPA, a habeas petition will not be granted with respect to
any claim adjudicated on the merits by the state court unless
that adjudication: (1) resulted in a decision that was
contrary to, or involved an unreasonable application of
clearly established federal law; or (2) resulted in a
decision that was based on an unreasonable determination of
the facts in light of the evidence presented at the state
court proceeding. 28 U.S.C. § 2254(d); Early v.
Packer, 537 U.S. 3, 7-8 (2002).
established federal law “refers to the holdings, as
opposed to the dicta, of [the United States Supreme]
Court's decisions . . . .” Williams v.
Taylor, 529 U.S. 362, 412 (2000). A state court's
decision may be “contrary to” clearly established
Supreme Court precedent “if the state court applies a
rule that contradicts the governing law set forth in [the
Court's] cases” or “if the state court
confronts a set of facts that are materially
indistinguishable from a decision of [the] Court and
nevertheless arrives at a result different from [the
Court's] precedent.” Id. at 405-06. A
state court decision does not have to demonstrate an
awareness of clearly established Supreme Court precedent,
provided neither the reasoning nor the result of the state
court decision contradict such precedent. Early, 537
U.S. at 8.
court decision involves an “unreasonable
application” of Supreme Court precedent “if the
state court identifies the correct governing legal rule from
this Court's cases but unreasonably applies it to the
facts of the particular state prisoner's case.”
Williams, 529 U.S. at 407. An unreasonable
application may also be found “if the state court
either unreasonably extends a legal principle from [Supreme
Court] precedent to a new context where it should not apply
or unreasonably refuses to extend that principle to a new
context where it should apply.” Id.;
Wiggins v. Smith, 539 U.S. 510, 520 (2003);
Clark v. Murphy, 331 F.3d 1062, 1067 (9th Cir.
under the “unreasonable application” clause of
§ 2254(d) is available “if, and only if, it is so
obvious that a clearly established rule applies to a given
set of facts that there could be no ‘fairminded
disagreement' on the question.” White v.
Woodall, 134 S.Ct. 1697, 1706-07 (2014) (quoting
Harrington v. Richter, 562 U.S. 86, 103 (2011)). An
unreasonable application of federal law requires the state
court decision to be more than incorrect or erroneous.
Lockyer v. Andrade, 538 U.S. 63, 75 (2003). Instead,
the state court's application must be “objectively
unreasonable.” Id.; Miller-El v.
Cockrell, 537 U.S. 322, 340 (2003). Even if a petitioner
can satisfy § 2254(d), the petitioner must still
demonstrate a constitutional violation. Fry v.
Pliler, 551 U.S. 112, 119-22 (2007).
courts review the last reasoned decision from the state
courts. See Ylst v. Nunnemaker, 501 U.S. 797, 805-06
(1991); Hibbler v. Benedetti, 693 F.3d 1140, 1146
(9th Cir. 2012). In deciding a state prisoner's habeas
petition, a federal court is not called upon to decide
whether it agrees with the state court's determination;
rather, the court applies an extraordinarily deferential
review, inquiring only whether the state court's decision
was objectively unreasonable. See Yarborough v.
Gentry, 540 U.S. 1, 6 (2003); Medina v.
Hornung, 386 F.3d 872, 877 (9th Cir. 2004). The
petitioner must establish that “the state court's
ruling on the claim being presented in federal court was so
lacking in justification that there was an error . . . beyond
any possibility for fairminded disagreement. . . .”
Burt v. Titlow, 134 S.Ct. 10, 12 (2013) (internal
citation omitted). It is not within a federal habeas
court's province “to reexamine state court
determinations on state-law questions. . . .”
Estelle v. McGuire, 502 U.S. 62, 68 (1991).
Claims 1 and 2: Insufficient Evidence
claim 1, Petitioner argues that there is insufficient
evidence to support his conviction of first-degree burglary.
(ECF No. 1 at 6). In claim 2, Petitioner asserts that there
was insufficient evidence to prove he assaulted Williams and
Buganan with force likely to produce great bodily injury.
(Id. at 7).
Fourteenth Amendment's Due Process Clause protects
criminal defendants from convictions “except upon proof
beyond a reasonable doubt of every fact necessary to
constitute the crime with which he is charged.” In
re Winship, 397 U.S. 358, 364 (1970). In a federal
habeas proceeding, a petitioner challenging the sufficiency
of the evidence may obtain relief only if “it is found
that upon the record evidence adduced at the trial no
rational trier of fact could have found proof of guilt beyond
a reasonable doubt.” Jackson v. Virginia, 443
U.S. 307, 324 (1979). “[T]he relevant question is
whether, after viewing the evidence in the light most
favorable to the prosecution, any rational trier of
fact could have found the essential elements of the crime
beyond a reasonable doubt.” Id. at 319
(emphasis in original). A reversal for insufficiency of the
evidence is essentially a “determination that the
government's case against the defendant was so lacking
that the trial court should have entered a judgment of
acquittal.” McDaniel v. Brown, 558 U.S. 120,
131 (2010) (quoting Lockhart v. Nelson, 488 U.S. 33,
39 (1988)) (internal quotations omitted).
the jury's responsibility “to decide what
conclusions should be drawn from evidence admitted at
trial” and a reviewing court can overrule a jury
verdict on the ground of insufficient evidence only if no
rational trier of fact could have agreed with the jury.
Cavazos v. Smith, 565 U.S. 1, 2 (2011) (per
curiam). “The reviewing court must respect the
exclusive province of the fact finder to determine the
credibility of witnesses, resolve evidentiary conflicts, and
draw reasonable inferences from proven facts” by
assuming that the jury resolved all conflicts in support of
the verdict. United States v. Hubbard, 96 F.3d 1223,
1226 (9th Cir. 1996); Walters v. Maass, 45 F.3d
1355, 1358 (9th Cir. 1995). If the record supports
conflicting inferences, the court “must presume - even
if it does not affirmatively appear in the record - that the
trier of fact resolved any such conflicts in favor of the
prosecution, and must defer to that resolution.”
Jackson, 443 U.S. at 326.
court applies the standard with specific reference to the
applicable state law defining the elements of the crime at
issue. Id. at 324 n.16; see also Chein v.
Shumsky, 373 F.3d 978, 983 (9th Cir. 2004) (en
banc). The reviewing court also applies “an
additional layer of deference” under AEDPA: habeas
relief is not warranted unless “the state court's
application of the Jackson standard [was]
‘objectively unreasonable.'” Juan H. v.
Allen, 408 F.3d 1262, 1274-75 n.13 (9th Cir. 2005) (as
amended) (citation omitted); see Cavazos, 565 U.S.
at 2 (“[A] federal court may not overturn a state court
decision rejecting a sufficiency of the evidence challenge
simply because the ...