United States District Court, E.D. California
ORDER DENYING PETITION FOR WRIT OF HABEAS
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.
reasons discussed herein, the Court finds that denial of the
petition for writ of habeas corpus is warranted.
January 25, 2012, Petitioner was convicted by a jury in the
Kings County Superior Court of battery by a prisoner upon a
noninmate. (CT 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.
5, 6). The California Supreme Court denied Petitioner's
petition for review on March 26, 2014. (LDs 7, 8).
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.
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.
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.
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.
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).
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.
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;
(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).
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)).
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.
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
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.
Ineffective Assistance of Counsel
Strickland Legal Standard
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).
Failure to Impeach Lieutenant Rivero's Testimony
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). Respondent argues that although there
appear to be procedural default issues, the claim should be
denied on the merits. (ECF No. 15 at 20).
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).
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.
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).
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 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,
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.
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
Failure to Object to Prosecutor's Use of
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
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?
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 ...