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Mohamed v. Tampkins

United States District Court, S.D. California

June 9, 2017

CYNTHIA TAMPKINS, Warden, Defendant.


          Hon. William V. Gallo United States Magistrate Judge


         Petitioner Ebrahim Mussa Mohamed, a state prisoner proceeding pro se, has filed a Petition for Writ of Habeas Corpus (“Petition”) pursuant to 28 U.S.C. § 2254 challenging his convictions in San Diego County Superior Court for five counts of assault with a deadly weapon and one count of stalking.[1] Petitioner raises four claims of Constitutional violations in support of his Petition.

         The Court has read and considered the Petition, Respondent's Answer, Petitioner's Traverse, and all of the lodgments filed. For the reasons discussed below, the Court RECOMMENDS the Petition be DENIED.


         The Court gives deference to state court findings of fact and presumes them to be correct. 28 U.S.C. §2254(e)(1). However, a petitioner may rebut the presumption of correctness, but only by clear and convincing evidence. Id.; see also Parle v. Fraley, 506 U.S. 20, 35-36 (1992) (holding findings of historical fact, including inferences properly drawn from these facts, are entitled to statutory presumption of correctness). The following facts are taken from the California Court of Appeal opinion:

[Petitioner] dated Kalkidan Gebremichael from 2009 through February 2012, when she ended their relationship. On March 13, 2012, she obtained a temporary restraining order against him based on threats he made against her.
At about 11:00 p.m. on April 13, 2012, Gebremichael drove her coworker, Jose Reynosa, to his home after work. She parked her car in front of his house and they talked for a while. [Petitioner] approached Gebremichael's car and repeatedly struck the driver's side window and windshield with an anti-theft steering wheel club. The windshield shattered. Gebremichael started her car and drove away with Reynosa, going eastbound on University Avenue. At the intersection of 35th Street and University Avenue, her car was struck from behind by another vehicle. Her car was struck from behind three more times at the 38th Street, 40th Street, and 41st Street intersections. San Diego Police Officer Derrick Young saw Gebremichael's car and a white Honda Accord drive through a red light at the intersection of University Avenue and Chamoune Avenue. The cars were travelling about 60 miles per hour. As he turned to initiate a traffic stop, Gebremichael's car immediately pulled over, while the Honda continued eastbound on University Avenue until making a left turn onto 46th Street. The Honda parked in a parking lot and [Petitioner] jumped out of it and ran toward Young. Young ordered [Petitioner] to stop, but he continued to approach Young with his hand in his jacket. He then turned around, returned to his car, reentered it, and reached into the back seat. Young ordered him to exit the car and get on the ground. [Petitioner] eventually complied and was arrested.
During a search of a [Petitioner's] car, officers found an anti- theft vehicle club on the floorboard behind the driver's seat and blood on the shifting column. [Petitioner's] right hand was bleeding. When officers spoke with Gebremichael, she appeared to be terrified of [Petitioner] and described that evening's events. She feared for her life.
An amended information charged [Petitioner] with five counts of assault with a deadly weapon (§ 245, subd. (a)(1)) and one count of stalking (§ 646.9, subd. (a)). It further alleged he had been convicted of a prior “strike” (i.e., serious or violent felony) (§§ 667, subds. (b)-(i), 1170.12, 668), and had a prior stalking conviction (§ 646.9, subd. (c)(2)). At trial, after the close of the prosecution's case, the defense elected not to present any evidence. The jury found [Petitioner] guilty on all six counts. In a bifurcated proceeding, the trial court found true the prior strike allegation. The court sentenced [Petitioner] to a term of eight years in prison for count 1 and concurrent six-year terms for counts 2, 3, and 4. It imposed a consecutive two-year term for count 5. It imposed a five-year term on count 6 (stalking conviction), but stayed its execution pursuant to section 654. [Petitioner] was sentenced to a total term of 10 years in prison.

(Lodgment 8, ECF No. 35-8 at 2-3.)[2]



         On June 28, 2012, Petitioner was convicted of five counts of assault with a deadly weapon and one count of stalking. (Lodgment 1, ECF No. 35-1 at 146-151.) On July 30, 2012, Petitioner filed a direct appeal with the California Court of Appeal. (Lodg. 1 at 122.) On November 19, 2013, Petitioner petitioned the California Supreme Court to review whether a defendant must expressly waive his or her right to testify. (Lodgment 9, ECF No. 35-9.) The California Supreme Court denied the petition for review on January 14, 2014, without comment or citation to authority. (Lodgment 10, ECF No. 35-10.) On June 26, 2015, Petitioner filed a petition for habeas corpus with the California Supreme Court. (Lodgment 11, ECF No. 35-11.) This petition was summarily denied without comment or citation to authority on September 30, 2015. See In re Mohamed, 2015 Cal. Lexis 7248.


         On March 30, 2015, Petitioner filed a Petition for Writ of Habeas Corpus. (Petition, ECF No. 1.) Petitioner simultaneously filed a Motion to Stay. (ECF No. 2.) The Petition was dismissed without prejudice, allowing Petitioner until June 15, 2015, to submit proof of his inability to pay filing fees. (ECF No. 3.) Petitioner filed a Motion for Leave to Proceed In Forma Pauperis on May 20, 2015. (ECF No. 4.) The Court reopened the matter after granting the motion. (ECF No. 5.) On June 3, 2015, Petitioner's motion seeking a stay of his Petition to allow him time to exhaust his claims in state court was renewed. (ECF No. 9.) The Court issued a Report and Recommendation on February 3, 2016, recommending a denial of Petitioner's motion to stay. (ECF No. 21.) On March 7, 2016, the Honorable Roger T. Benitez, issued an order adopting the Report and Recommendation and denied Petitioner's Motion to Stay. (ECF No. 22.) On July 27, 2016, Respondent filed an Answer to the Petition, (Answer, ECF No. 34, ) and lodged numerous state court records, (Lodgments, ECF No. 35). Petitioner timely filed a Traverse on September 12, 2016, (ECF No. 36, ) and filed an Amended Traverse on January 23, 2017, (ECF No. 40). Having found further briefing necessary


         The Petition is governed by provisions of the Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”). See Lindh v. Murphy, 521 U.S. 320 (1997). Under AEDPA, a habeas petition will not be granted with respect to any claim adjudicated on the merits by a 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, 8 (2002). 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, 4 (2003); see also Medina v. Hornung, 386 F.3d 872, 877 (9th Cir. 2004). To prevail, a 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, - U.S. -, -, 134 S.Ct. 10, 16, 187 L.Ed.2d 348 (2013).

         A federal habeas court may grant relief under the “contrary to” clause if the state court applied a rule different from the governing law set forth in Supreme Court cases, or if it decided a case differently than the Supreme Court on a set of materially indistinguishable facts. See Bell v. Cone, 535 U.S. 685, 694 (2002). The court may grant relief under the “unreasonable application” clause if the state court correctly identified the governing legal principle from Supreme Court decisions but unreasonably applied those decisions to the facts of a particular case. Id. Additionally, the “unreasonable application” clause requires that the state court decision be more than incorrect or erroneous; to warrant habeas relief, the state court's application of clearly established federal law must be “objectively unreasonable.” See Lockyer v. Andrade, 538 U.S. 63, 75 (2003). The Court may also grant relief if the state court's decision was based on an unreasonable determination of the facts. 28 U.S.C. § 2254(d)(2).

         Where there is no reasoned decision from the state's highest court, the Court “looks through” to the last reasoned state court decision and presumes it provides the basis for the higher court's denial of a claim or claims. See Ylst v. Nunnemaker, 501 U.S. 797, 805-06 (1991). If the dispositive state court order does not “furnish a basis for its reasoning, ” federal habeas courts must conduct an independent review of the record to determine whether the state court's decision is contrary to, or an unreasonable application of, clearly established Supreme Court law. See Delgado v. Lewis, 223 F.3d 976, 982 (9th Cir. 2000) (overruled on other grounds by Andrade, 538 U.S. at 75-76); accord Himes v. Thompson, 336 F.3d 848, 853 (9th Cir. 2003). However, a state court need not cite Supreme Court precedent when resolving a habeas corpus claim. See Early, 537 U.S. at 8. “[S]o long as neither the reasoning nor the result of the state-court decision contradicts [Supreme Court precedent, ]” the state court decision will not be “contrary to” clearly established federal law. Id. Clearly established federal law, for purposes of § 2254(d), means “the governing principle or principles set forth by the Supreme Court at the time the state court renders its decision.” Andrade, 538 U.S. at 72.

         V. DISCUSSION

         Petitioner raises four grounds for relief in his Petition. He contends: (1) the trial court erred by not obtaining Petitioner's express waiver of right to testify; (2) ineffective assistance of appellate counsel; (3) ineffective assistance of trial counsel; and (4) that Petitioner's sentence is illegal due to insufficient evidence. (Pet. at 6-9.)

         a. Express Waiver of Right to Testify

         Petitioner contends that the trial Court violated his Fifth, Sixth, and Fourteenth Amendment rights by failing to obtain his express waiver of right to testify. (Pet. at 6.) In support of this argument, Petitioner claims he was never provided a required notice of waiver and did not knowingly waive his right to testify, as required, citing Johnson v. Zerbst, 304 U.S. 458, 58 S.Ct. 1019, 82 L.Ed. 1461 (1938). Moreover, Petitioner argues that his trial counsel misled him into a false belief that Petitioner could not disregard the advice of his attorney and testify on his own behalf. (Traverse, ECF No. 36 at 4-5.) Respondents argue a trial court has no duty to affirmatively inform defendants of their right to testify. (Ans. at 4:23-25.)

         On direct appeal to the California Court of Appeal, Petitioner similarly argued that his Constitutional right to testify was violated because the trial court did not obtain his express waiver of that right. (See ECF No. 35-6 at 10-13.) The court of appeal concluded the trial court did not err by not obtaining Petitioner's express waiver of his right to testify. (ECF No. 35-8 at 6.) Petitioner then filed a Petition for Review in the California Supreme Court, which summarily denied his petition. See In re Mohamed, 2015 Cal. Lexis 7248. The last reasoned state court decision, which addresses the merits of the claim, is the California court of appeal's opinion. It is to that decision this Court must direct its analysis. See Ylst, 501 U.S. at 805-06.

         The court of appeal found the following facts regarding Petitioner's waiver of his right to testify:

Outside the jury's presence during trial, [Petitioner] was present when his counsel agreed with the trial court that if he ([Petitioner]) testified, his prior stalking conviction would be admissible for impeachment purposes. At that time, ...

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