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Richson v. Biter

United States District Court, E.D. California

May 25, 2017

SEAN JEFFREY RICHSON, Petitioner,
v.
M.D. BITER, Respondent.

          ORDER DENYING PETITION FOR WRIT OF HABEAS CORPUS

         Petitioner Sean Jeffrey Richson is a state prisoner proceeding pro se with a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254. In the petition, Petitioner raises the following claims for relief: (1) ineffective assistance of trial counsel, and (2) prosecutorial misconduct.

         For the reasons discussed herein, the Court finds that denial of the petition for writ of habeas corpus is warranted.

         I.

         BACKGROUND

         On January 25, 2012, Petitioner was convicted by a jury in the Kings County Superior Court of battery by a prisoner upon a noninmate. (CT[1] 89). The jury also found true the allegation that Petitioner had two prior convictions within the meaning of the three strikes law. (CT 90-91). Petitioner was sentenced to an imprisonment term of twenty-five years to life. (CT 214). On January 15, 2014, the California Court of Appeal, Fifth Appellate District affirmed the judgment. People v. Richson, No. F064839, 2014 WL 129834, at *14 (Cal.Ct.App. Jan. 15, 2014). The California Court of Appeal denied a petition for rehearing on February 4, 2014. (LDs[2] 5, 6). The California Supreme Court denied Petitioner's petition for review on March 26, 2014. (LDs 7, 8).

         Subsequently, Petitioner filed a petition for writ of habeas corpus in the Kings County Superior Court, which denied the petition on May 8, 2014. (LDs 9, 10). Petitioner then filed a habeas petition in the California Court of Appeal, Fifth Appellate District, which denied the petition on August 14, 2014. (LDs 13, 14). Thereafter, Petitioner filed another state habeas petition in the Kings County Superior Court, which denied the petition on December 12, 2014. (LDs 11, 12). Petitioner then filed another habeas petition in the California Court of Appeal, which denied the petition on February 11, 2015. (LDs 15, 16). Finally, Petitioner filed three state habeas petitions in the California Supreme Court, which denied all three petitions. (LDs 17-22).

         On June 8, 2015, Petitioner filed the instant federal petition for writ of habeas corpus. (ECF No. 1). Respondent has filed an answer to the petition, and Petitioner has filed a traverse. (ECF Nos. 15, 17). The parties have consented to the jurisdiction of the United States Magistrate Judge. (ECF Nos. 4, 8).

         II.

         STATEMENT OF FACTS[3]

Correctional Lieutenant Johnny Rivero was working at the Corcoran State Prison Substance Abuse Treatment Facility on October 6, 2010. He had recently transferred to this facility, and had just begun working in Facility C, where defendant was housed. Rivero was responsible for training other officers, providing leadership, and ensuring the officers were following proper protocol. During his shift, Rivero was advised by Correctional Officer Christopher Cribbs that some inmates were failing to follow procedure by refusing to stand during the inmate count. Cribbs intended to file a formal rules violation against the inmates; however, Rivero stated he would handle the matter directly with the inmate by providing “counseling.” Rivero explained that in lieu of directly filing a formal rules violation, which can result in discipline for the inmate, the officers are encouraged to counsel the inmate about the violation. If an inmate is receptive to the counseling, the incident is documented; however there is no formal violation and no loss of privileges.
Rivero requested defendant be brought to the correctional office so he could speak with him about the matter. After learning defendant did not wish to go to the office, Rivero directed other officers to have defendant, whom he had never met, brought to the office. Both defendant and his cellmate were contacted and escorted to the office. Defendant's cellmate was the first to enter the office and Rivero spoke with him about the issue. Due to the cellmate's agitated state, the interview with him was terminated and he was escorted from the office.
Next, defendant entered the office and sat down in a chair by the wall. The small office was occupied by Rivero, who was seated near defendant, and Correctional Sergeants Matthew Bejarano, David Smith, and Correctional Officer Cribbs. Defendant was unrestrained. Rivero began speaking to defendant about the incident; however, defendant appeared uninterested in the conversation. Defendant was not aggressive or angry; rather, he sat, slouched forward, and stated he would not correct the behavior at issue. Rivero decided the counseling was not being effective and instructed defendant to return to his cell. Defendant remained seated so Rivero stood, placed his hand on defendant's shoulder, and again told him to return to his cell. Defendant remained seated for a few more seconds, then suddenly jumped up and struck Rivero in the temple, knocking him backwards. Defendant continued to advance and strike Rivero, causing Rivero to fall against the wall. Rivero grabbed defendant and both men fell to the ground. Rivero began striking defendant while the other officers in the office came to his aid.
Cribbs, Bejarano, and Smith all worked to restrain defendant and were ultimately able to place him in handcuffs. Defendant was transported to the medical facility within the prison by other personnel. Rivero also went to the hospital to evaluate his injuries. As a result of the altercation, Rivero suffered a black eye, cut lip, sore jaw, and a cut on his knee. Cribbs was also injured and suffered a torn shoulder muscle, a bruised knee, and a jammed thumb.
Defense Case
Defendant testified he had been having a problem with Cribbs because he failed to provide him with his meal. Because he was upset over this incident, he protested by refusing to stand during the inmate count. Later, 8-10 officers escorted him to the office “to pressure [him] about this situation.” Both he and his cellmate were taken to the office and his cellmate was the first to talk to Rivero. Subsequently, defendant entered the office and spoke with Rivero. He told Rivero he had nothing to say, and that Rivero could have talked to him in his cell. Rivero responded that defendant was the inmate, so he should come to Rivero. After defendant told Rivero he had nothing to say, Rivero appeared angry and clenched his fists. He asked defendant if he thought he was tough, and suddenly grabbed defendant by the back of the neck and slammed his head into the wall. Defendant turned and swung at Rivero, and the two fell to the floor. Although Cribbs, Smith, and Bejarano were in the office, they initially did nothing. Rivero hit defendant on his face and upper body and defendant fought back to defend himself. At some point the other officers in the office separated the two, and defendant was restrained. He did not continue to fight once Rivero stopped attacking him. As a result of the altercation, defendant received a bruise on his neck, and a gash and knot to his forehead.
Defendant had not had any prior dealings with Rivero and had no reason to attack him. Defendant admitted he had previously been convicted of murder and robbery and was currently a level 4 inmate at the prison. The parties stipulated that if Rivero grabbed defendant and slammed him into a wall, unprovoked, that would constitute an excessive use of force.

Richson, 2014 WL 129834, at *1-2.

         III.

         STANDARD OF REVIEW

         Relief by way of a petition for writ of habeas corpus extends to a person in custody pursuant to the judgment of a state court if the custody is in violation of the Constitution or laws or treaties of the United States. 28 U.S.C. § 2254(a); 28 U.S.C. § 2241(c)(3); Williams v. Taylor, 529 U.S. 362, 375 (2000). Petitioner asserts that he suffered violations of his rights as guaranteed by the United States Constitution. The challenged conviction arises out of the Kings County Superior Court, which is located within the Eastern District of California. 28 U.S.C. § 2254(a); 28 U.S.C. § 2241(d).

         On April 24, 1996, Congress enacted the Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”), which applies to all petitions for writ of habeas corpus filed after its enactment. Lindh v. Murphy, 521 U.S. 320 (1997); Jeffries v. Wood, 114 F.3d 1484, 1499 (9th Cir. 1997) (en banc). The instant petition was filed after the enactment of the AEDPA and is therefore governed by its provisions.

         Under the AEDPA, relitigation of any claim adjudicated on the merits in state court is barred unless a petitioner can show that the state court's adjudication of his claim:

(1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States; or
(2) resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding.

28 U.S.C. § 2254(d); Davis v. Ayala, 135 S.Ct. 2187, 2198 (2015); Harrington v. Richter, 562 U.S. 86, 97-98 (2011); Williams, 529 U.S. at 413. Thus, if a petitioner's claim has been “adjudicated on the merits” in state court, the “AEDPA's highly deferential standards” apply. Ayala, 135 S.Ct. at 2198. However, if the state court did not reach the merits of the claim, the claim is reviewed de novo. Cone v. Bell, 556 U.S. 449, 472 (2009).

         In ascertaining what is “clearly established Federal law, ” this Court must look to the “holdings, as opposed to the dicta, of [the Supreme Court's] decisions as of the time of the relevant state-court decision.” Williams, 529 U.S. at 412. In addition, the Supreme Court decision must “‘squarely address[] the issue in th[e] case' or establish a legal principle that ‘clearly extend[s]' to a new context to the extent required by the Supreme Court in . . . recent decisions”; otherwise, there is no clearly established Federal law for purposes of review under AEDPA and the Court must defer to the state court's decision. Moses v. Payne, 555 F.3d 742, 754 (9th Cir. 2008) (alterations in original) (quoting Wright v. Van Patten, 552 U.S. 120, 125, 123 (2008)).

         If the Court determines there is clearly established Federal law governing the issue, the Court then must consider whether the state court's decision was “contrary to, or involved an unreasonable application of, [the] clearly established Federal law.” 28 U.S.C. § 2254(d)(1). A state court decision is “contrary to” clearly established Supreme Court precedent if it “arrives at a conclusion opposite to that reached by [the Supreme Court] on a question of law or if the state court decides a case differently than [the Supreme Court] has on a set of materially indistinguishable facts.” Williams, 529 U.S. at 413. A state court decision involves “an unreasonable application of[] clearly established Federal law” if “there is no possibility fairminded jurists could disagree that the state court's decision conflicts with [the Supreme Court's] precedents.” Richter, 562 U.S. at 102. That is, a petitioner “must show that the state court's ruling on the claim being presented in federal court was so lacking in justification that there was an error well understood and comprehended in existing law beyond any possibility for fairminded disagreement.” Id. at 103.

         If the Court determines that the state court decision was “contrary to, or involved an unreasonable application of, clearly established Federal law, ” and the error is not structural, habeas relief is nonetheless unavailable unless it is established that the error “had substantial and injurious effect or influence” on the verdict. Brecht v. Abrahamson, 507 U.S. 619, 637 (1993) (internal quotation mark omitted) (quoting Kotteakos v. United States, 328 U.S. 750, 776 (1946)).

         The AEDPA requires considerable deference to the state courts. The Court looks to the last reasoned state court decision as the basis for the state court judgment. See Brumfield v. Cain, 135 S.Ct. 2269, 2276 (2015); Johnson v. Williams, 133 S.Ct. 1088, 1094 n.1 (2013); Ylst v. Nunnemaker, 501 U.S. 797, 806 (1991). “When a federal claim has been presented to a state court and the state court has denied relief, it may be presumed that the state court adjudicated the claim on the merits in the absence of any indication or state-law procedural principles to the contrary.” Richter, 562 U.S. at 99. Where the state court reaches a decision on the merits but provides no reasoning to support its conclusion, a federal habeas court independently reviews the record to determine whether habeas corpus relief is available under § 2254(d). Walker v. Martel, 709 F.3d 925, 939 (9th Cir. 2013). “Independent review of the record is not de novo review of the constitutional issue, but rather, the only method by which we can determine whether a silent state court decision is objectively unreasonable.” Himes v. Thompson, 336 F.3d 848, 853 (9th Cir. 2003). The federal court must review the state court record and “must determine what arguments or theories . . . could have supported, the state court's decision; and then it must ask whether it is possible fairminded jurists could disagree that those arguments or theories are inconsistent with the holding in a prior decision of [the Supreme] Court.” Richter, 562 U.S. at 102.

         IV.

         DISCUSSION

         A. Ineffective Assistance of Counsel

         1. Strickland Legal Standard

         The clearly established federal law governing ineffective assistance of counsel claims is Strickland v. Washington, 466 U.S. 668 (1984), which requires a petitioner to show that (1) “counsel's performance was deficient, ” and (2) “the deficient performance prejudiced the defense.” Id. at 687. To establish deficient performance, a petitioner must demonstrate that “counsel's representation fell below an objective standard of reasonableness” and “that counsel made errors so serious that counsel was not functioning as the ‘counsel' guaranteed the defendant by the Sixth Amendment.” Id. at 688, 687. Judicial scrutiny of counsel's performance is highly deferential. A court indulges a “strong presumption” that counsel's conduct falls within the “wide range” of reasonable professional assistance. Id. at 687. To establish prejudice, a petitioner must demonstrate “a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome.” Id. at 694. A court “asks whether it is ‘reasonable likely' the result would have been different. . . . The likelihood of a different result must be substantial, not just conceivable.” Richter, 562 U.S. at 111-12 (citing Strickland, 466 U.S. at 696, 693).

         2. Failure to Impeach Lieutenant Rivero's Testimony

         In his first claim for relief, Petitioner asserts that his trial counsel was ineffective for failing to impeach prosecution witness Lieutenant Johnny Rivero's testimony that he intended to resolve the dispute informally to prevent Petitioner from receiving a rules violation report (“RVR”) with evidence that Petitioner had already received an RVR approximately six hours before the incident. (ECF No. 1 at 5).[4] Respondent argues that although there appear to be procedural default issues, the claim should be denied on the merits. (ECF No. 15 at 20).

         a. Procedural Default

         A federal court will not review a petitioner's claims if the state court has denied relief on those claims pursuant to a state law procedural ground that is independent of federal law and adequate to support the judgment. Coleman v. Thompson, 501 U.S. 722, 729-30 (1991). This doctrine of procedural default is based on the concerns of comity and federalism. Id. at 730-32. However, there are limitations as to when a federal court should invoke procedural default and refuse to review a claim because a petitioner violated a state's procedural rules. Procedural default can only block a claim in federal court if the state court “clearly and expressly states that its judgment rests on a state procedural bar.” Harris v. Reed, 489 U.S. 255, 263 (1989). A petitioner “may obtain federal review of a defaulted claim by showing cause for the default and prejudice from a violation of federal law.” Martinez v. Ryan, 566 U.S. 1, 10 (2012) (citing Coleman, 501 U.S. at 750).

         In determining whether a state procedural ruling bars federal review, the Court looks to the “last reasoned opinion on the claim.” Ylst, 501 U.S. at 804. This claim was raised in Petitioner's October 23, 2014 state habeas petition filed in the California Supreme Court, which denied the petition with citation to In re Clark, 5 Cal.4th 750, 767-69 (Cal. 1993). (LDs 17, 18). See Curiel v. Miller, 830 F.3d 864, 870 (9th Cir. 2016) (en banc) (“We have no cause to treat a state court's summary order with citations as anything but a ‘reasoned' decision, provided that the state court's references reveal the basis for its decision.”). Clark discusses several procedural bars used by California courts, and the pages cited here by the California Supreme Court refer to the bar on successive petitions.

         As the California Supreme Court clearly and expressly stated that its judgment rests on a state procedural ground, procedural default is appropriate if the successiveness rule is independent and adequate. Petitioner argues that ineffective assistance of counsel caused the default. (ECF No. 17 at 2). Respondent argues that this claim should be denied on the merits because judicial economy counsels giving the merits question priority when the procedural bar presents a complicated issue of law. (ECF No. 15 at 20). Ordinarily procedural bar issues are resolved first, but courts have recognized that “[p]rocedural bar issues are not infrequently more complex than the merits issues . . . so it may well make sense in some instances to proceed to the merits if the result will be the same.” Franklin v. Johnson, 290 F.3d 1223, 1232 (9th Cir. 2002) (citing Lambrix v. Singletary, 520 U.S. 518, 525 (1997)). Accordingly, the Court will proceed to address the claim on the merits. “Where, as here, the state Supreme Court has denied post-conviction relief due to procedural default, we review a defendant's habeas claims de novo.” Allen v. Benedetti, 629 F.App'x 814, 815 (9th Cir. 2015) (citing Chaker v. Crogan, 428 F.3d 1215, 1221 (9th Cir. 2005)), cert. denied sub nom. Allen v. Baca, 137 S.Ct. 1063 (2017).

         b. Analysis

         At 1:10 p.m. on October 6, 2010, Petitioner received RVR Log No. C-10-09-023 regarding his refusal to stand for the mandatory standing count on September 30, 2010. The RVR was dated October 5, 2010, and the reporting employee was Correctional Officer J. Davis. (ECF No. 15-2 at 2). At trial, Correctional Officer Christopher Cribbs testified that Petitioner refused to stand for the mandatory standing count at 5:00 p.m. on October 6, 2010. (7 RT[5] 860). Cribbs informed Correctional Lieutenant Johnny Rivero of Petitioner's refusal. (6 RT 531-534, 7 RT 860). Thereafter, Rivero called Petitioner down to meet with him in the staff office to discuss the situation. (6 RT 531-34). Rivero testified that he wanted to counsel Petitioner first because if Petitioner was receptive to the counseling, there would be no need for a disciplinary write-up. (6 RT 532). Petitioner testified at trial that he did not refuse to stand on October 6, 2010, and indicated that his refusal to stand occurred sometime earlier. (7 RT 908-09, 936). Rivero testified that when he spoke to Petitioner regarding Petitioner's refusal to stand, it was Rivero's understanding that Petitioner refused to stand on October 6, 2010. (7 RT 938). The incident that gave rise to the battery conviction Petitioner is challenging in the instant petition occurred in the staff office at approximately 7:45 p.m. on October 6, 2010. (7 RT 815, 840, 860).

         Petitioner argues his trial counsel was ineffective for failing to utilize RVR Log No. C-10-09-023, which Petitioner received approximately six hours prior to being taken to speak with Rivero, to impeach Rivero's testimony that he intended to resolve the dispute informally to prevent Petitioner from receiving an RVR. (ECF No. 1 at 5; ECF No. 17 at 4-5). RVR Log No. C-10-09-023 concerned Petitioner's refusal to stand for the mandatory standing count on September 30, 2010, and was written by Correctional Officer J. Davis on October 5, 2010. (ECF No. 15-2 at 2). Rivero began working at Facility C, where Petitioner was housed, on October 5, 2010. (6 RT 529, 556). There is nothing in the record that indicates Rivero was aware that Petitioner previously refused to stand for the mandatory standing count on September 30, 2010, or that Rivero knew of the RVR written by Davis. Thus, the issuance of RVR Log No. C-10-09-023 before Petitioner spoke with Rivero is not inconsistent with Rivero's testimony that he wished to counsel Petitioner before any disciplinary write-up occurred with respect to Petitioner's refusal to stand on October 6, 2010. Given that the issuance of RVR Log No. C-10-09-023 was not inconsistent with Rivero's testimony, the RVR would not have been an effective form of impeachment. Strickland directs courts to “indulge a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance, ” and Petitioner has failed to overcome the presumption. 466 U.S. at 689.

         Based on the foregoing, the Court finds that Petitioner is not entitled to habeas relief for ineffective assistance of counsel on the ground that trial counsel failed to impeach Rivero's testimony with RVR Log No. C-10-09-023. Accordingly, Petitioner's first claim for relief is denied.

         3. Failure to Object to Prosecutor's Use of Petitioner's Silence

         a. Procedural Default

         In his second claim for relief, Petitioner asserts that his trial counsel was ineffective for failing to object to or request a correcting instruction regarding the prosecutor's use of Petitioner's silence for impeachment purposes. (ECF No. 1 at 7). This claim was raised in Petitioner's October 10, 2014 state habeas petition filed in the Kings County Superior Court, which denied the claim in a reasoned opinion. (LDs 11, 12). This claim was also raised in Petitioner's January 29, 2015 state habeas petition filed in the California Court of Appeal, which summarily denied the claim. (LDs 15, 16). Finally, the claim was raised in Petitioner's March 2, 2015 state habeas petition filed in the California Supreme Court, which denied the petition with citation to Clark, 5 Cal.4th at 767, 769. (LDs 19, 20). Clark discusses several procedural bars used by California courts, and the pages cited here by the California Supreme Court refer to the bar on successive petitions. Respondent argues that this claim should be denied on the merits because judicial economy counsels giving the merits question priority when the procedural bar presents a complicated issue of law. (ECF No. 15 at 25). As discussed above, if the procedural bar issue is more complex than the merits issue, courts may “proceed to the merits if the result will be the same.” Franklin, 290 F.3d at 1232. Accordingly, the Court will proceed to review the claim de novo. See Allen, 629 F.App'x at 815.

         b. Analysis

         During cross-examination at trial, Petitioner and the prosecutor engaged in the following colloquy:

Q. You talked about that the next day that there was a use of force video; It's like an interview, right? Where an officer talks to you about this incident, right?
A. Yes.
Q. And, isn't it true that in that use of force video that you didn't say anything about the lieutenant grabbing you around the neck and ...

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