United States District Court, E.D. California
FINDINGS AND RECOMMENDATION TO DENY PETITION FOR WRIT
OF HABEAS CORPUS
JENNIFER L. THURSTON UNITED STATES MAGISTRATE JUDGE.
is currently serving an indeterminate sentence of 100
years-to-life for the premeditated, first degree murders of
his father and mother. He has filed the instant habeas action
challenging his guilty plea and sentence. As discussed below,
the Court finds that the state court rejections of his claims
were not contrary to or an unreasonable application of
clearly established Supreme Court precedent and recommends
the petition be DENIED.
March 9, 2010, in the Stanislaus County Superior Court,
Petitioner entered into a plea agreement wherein he pled
guilty to two counts of first degree, premeditated murder
(Cal. Penal Code § 187(a)), with enhancements for
personally using a firearm causing death or great bodily
injury (Cal. Penal Code § 12022.53(d)). (Doc. No. 1 at
2, 66.) For its part, the prosecution moved to strike the
special allegation under Cal. Penal Code § 190.2(a)(3),
precluding a sentence of life without parole. (Doc. No. 1 at
66.) Petitioner was sentenced to an aggregate, indeterminate
term of 100 years to life. (Doc. No. 1 at 2, 66.) He also
waived his right to appeal. (Doc. No. 1 at 66.) Petitioner
then filed multiple habeas petitions at all three levels of
the state courts. (LD 2-11.)
parties stipulated to the following factual basis at the
change of plea hearing:
[O]n or about January 13, 2009, in the early afternoon, the
defendant entered the residence of his parents, Ken and Diane
Terhune. At the time the defendant lived in another building,
a guest house, on the same property. He entered that
property, went to his parents' bedroom, armed himself
with several guns, and then left the house back to his
After test firing one of the guns and waiting for his parents
to arrive home, the defendant again entered the house,
approached his brother, Elliott Terhune, and contacted him.
He demanded that Elliott Terhune leave the house. There was
an argument that arose when that happened. Mr. Elliott
Terhune saw the gun that his brother was holding. At that
time an argument ensued with Mr. Elliott Terhune attempting
to convince Mr. Cameron Terhune not - - the defendant not to
do anything to his parents. Mr. Elliott Terhune was told by
defendant that it was either the parents or all of them and
told Mr. Elliott Terhune again to leave the house, which Mr.
Elliott Terhune did at that time.
After Mr. Elliott Terhune left the house, the defendant
approached the kitchen through a doorway between the kitchen
and dining room area of the house. He leaned into the kitchen
area and shot, using one of the guns that he had with him,
personally shot and intentionally discharged a firearm at his
father hitting him in the back of the head. The shot went
through Mr. Kenneth Terhune's head and into the cabinets
behind him killing Mr. Terhune instantly.
At that time Mrs. Diane Terhune was coming through an
entryway, a mud room in the house. The defendant saw her, and
she saw the defendant, she screamed and started to back away,
tripped in the mud room and fell to the ground. At that time
defendant began to shoot her with the same gun that he had
used to kill Mr. Terhune. He personally used that gun,
personally discharged that gun at Diane Terhune. He shot her
multiple times emptying that gun. He attempted to shoot her
with another gun. When that gun misfired, he returned to Ken
and Diane Terhune's bedroom, took another gun, and
returned to the mud room and shot Diane Terhune at least two
more times until that gun jammed. He then returned to the
bedroom, obtained a flashlight, and returned to the scene
where Ms. Terhune lay dying and hit her over the head
multiple times with the flashlight until she became quiet.
He did all these items with premeditation, deliberation as
shown by the fact that he obtained the guns earlier in the
afternoon, tested the guns, told his brother to leave.
He's the only individual who fired a gun, he did that
personally and intentionally discharging those firearms
causing the death of Diane Terhune at the time he was
committing murder - - I'm sorry, Diane and Ken Terhune at
the time he was committing murder.
(Doc. No. 1 at 70-72.)
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, 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 n. 7 (2000). Petitioner asserts that he
suffered violations of his rights as guaranteed by the United
States Constitution. The challenged conviction arises out of
the Stanislaus County Superior Court, which is located within
the jurisdiction of this court. 28 U.S.C. § 2254(a); 28
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) (holding the AEDPA only applicable to cases filed
after statute's enactment). The instant petition was
filed after the enactment of the AEDPA and is therefore
governed by its provisions.
Legal Standard of Review
petition for writ of habeas corpus under 28 U.S.C. §
2254(d) will not be granted unless the 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); Lockyer v. Andrade, 538 U.S.
63, 70-71 (2003); Williams, 529 U.S. at 412-413.
court decision is “contrary to” clearly
established federal law “if it applies a rule that
contradicts the governing law set forth in [the Supreme
Court's] cases, or “if it confronts a set of facts
that is materially indistinguishable from a [Supreme Court]
decision but reaches a different result.” Brown v.
Payton, 544 U.S. 133, 141 (2005) (citing
Williams, 529 U.S. at 405-406).
Harrington v. Richter, 562 U.S. 86, 101 (2011), the
U.S. Supreme Court explained that an “unreasonable
application” of federal law is an objective test that
turns on “whether it is possible that fairminded
jurists could disagree” that the state court decision
meets the standards set forth in the AEDPA. The Supreme Court
has “said time and again that ‘an unreasonable
application of federal law is different from an incorrect
application of federal law.'” Cullen v.
Pinholster, 563 U.S. 170, 203 (2011). Thus, a state
prisoner seeking a writ of habeas corpus from a federal court
“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 of
fairminded disagreement.” Harrington, 562 U.S.
second prong pertains to state court decisions based on
factual findings. Davis v. Woodford, 384 F.3d 628,
637 (9th Cir. 2003) (citing Miller-El v. Cockrell,
537 U.S. 322 (2003)). Under § 2254(d)(2), a federal
court may grant habeas relief if a state court's
adjudication of the petitioner's claims “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.” Wiggins v. Smith, 539 U.S.
510, 520 (2003); Jeffries v. Wood, 114 F.3d 1484,
1500 (9th Cir. 1997). A state court's factual finding is
unreasonable when it is “so clearly incorrect that it
would not be debatable among reasonable jurists.”
Jeffries, 114 F.3d at 1500; see Taylor v.
Maddox, 366 F.3d 992, 999-1001 (9th Cir. 2004),
cert.denied, Maddox v. Taylor, 543 U.S.
determine whether habeas relief is available under §
2254(d), the federal court looks to the last reasoned state
court decision as the basis of the state court's
decision. See Ylst v. Nunnemaker, 501 U.S. 979, 803
(1991); Robinson v. Ignacio, 360 F.3d 1044, 1055
(9th Cir. 2004). “[A]lthough we independently review
the record, we still defer to the state court's ultimate
decisions.” Pirtle v. Morgan, 313 F.3d 1160,
1167 (9th Cir. 2002).
prejudicial impact of any constitutional error is assessed by
asking whether the error had “a substantial and
injurious effect or influence in determining the jury's
verdict.” Brecht v. Abrahamson, 507 U.S. 619,
623 (1993); see also Fry v. Pliler, 551 U.S. 112,
119-120 (2007) (holding that the Brecht standard
applies whether or not the state court recognized the error
and reviewed it for harmlessness).
Review of Claims
raises the following claims challenging his conviction and
sentence: 1) Petitioner was denied the effective assistance
of counsel in several respects; 2) The plea was not made
voluntarily and intelligently; and 3) The sentence was
illegal and in violation of double jeopardy principles.
Ineffective Assistance of Counsel
first alleges his defense counsel was ineffective in failing
to investigate, failing to obtain vital psychiatric records,
refusing to request appointment of co-counsel, allowing the
preliminary hearing to be conducted outside of his presence,
relying on the prosecution's expert witness's report,
failing to challenge Petitioner's competency, advising
Petitioner to plead guilty, tricking Petitioner into waiving
his appellate rights, and failing to present mitigating
circumstances at the sentencing hearing.
State Court Decision
first presented this claim to the Stanislaus County Superior
Court on January 2, 2016, in a habeas petition. The court
denied the claim as follows:
Petitioner alleges IAC based on defense counsel's failure
[to] investigate psychiatric records and investigate a not
guilty plea by reason of insanity (NGI) defense. The entry of
plea transcript indicates that defense counsel had consulted
with a mental health expert whose opinion did not support the
entry of an NGI plea. Further, counsel stipulated that the
Court could review a report of a forensic interview conducted
by Dr. Phillip Trompetter soon after the offense. It was the
opinion of Dr. Trompetter, that Petitioner was sane at the
time of the commission of the offense.
Petitioner also alleges defense counsel was ineffective for
not requesting Keenan counsel. The file indicated that the
People indicated that the death penalty would not be sought
in this matter on March 30, 2009, approximately two months
after the initial arraignment in this matter. Petitioner
would not have been eligible for second counsel after said
Petitioner also alleges IAC because his attorney did not file
a Notice of Appeal. Petitioner specifically waived appellate
Petitioner alleges that there was some legal error by his
entry of a “spontaneous plea”. The record shows
that proceedings in this matter were recessed for
approximately one hour for defense counsel to confer with
Petitioner. The guilty plea in this matter was taken after