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Ward v. McDowell

United States District Court, S.D. California

May 23, 2017

TROY D. WARD, Petitioner,
v.
NEIL McDOWELL, Warden, Respondent.

          REPORT AND RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE RE: PETITION FOR WRIT OF HABEAS CORPUS [ECF NO. 1]

          HON. MITCHELL D. DEMBIN, UNITED STATES MAGISTRATE JUDGE

         I. INTRODUCTION

         This 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.

         Troy D. 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.

         II. FACTUAL BACKGROUND

         A. State Proceedings

         “[A] 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] immediately entered.
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 10 minutes.
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 arrested.
C. [Petitioner's] Prior Domestic Violence Against Buganan
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 case.
D. Defense
[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 Buganan's home.

(Lodg. No. 8 at 3-7).

         A jury 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.).

         Petitioner 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.).

         On 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).

         On 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).

         On May 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).

         On July 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).

         B. Federal Proceedings

         On 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. at 6-10).

         On March 14, 2017, Respondent filed an Answer, which addressed only four of Petitioner's grounds for relief.[1] (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 Docket).

         III. STANDARD OF REVIEW

         This 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.

         Under 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).

         Clearly 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.

         A state 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. 2003).

         Relief 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).

         Federal 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).

         IV. DISCUSSION

         A. Claims 1 and 2: Insufficient Evidence

         In 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).

         1. Legal Standard

         The 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).

         It is 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.

         The 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 ...


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