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Shelton v. Kernan

United States District Court, E.D. California

June 21, 2017

PETE V. SHELTON, Petitioner,
SCOTT KERNAN, Secretary, California Department of Corrections and Rehabilitation,[1] Respondent.


          JAMES K. SINGLETON, JR. Senior United States District Judge

         Peter V. Shelton, a California state prisoner proceeding pro se, filed a Petition for a Writ of Habeas Corpus with this Court pursuant to 28 U.S.C. § 2254. At the time he filed his Petition, Shelton was in the custody of the California Department of Corrections and Rehabilitation and incarcerated at Folsom State Prison. It appears that he has been released on supervised parole, as a search on the Department of Corrections and Rehabilitation's inmate locator website (, Inmate No. AH9967) has no record of him. Shelton has not filed a change of address with this Court. Respondent has answered, and Shelton has not replied.


         On December 17, 2010, Shelton was charged with the attempted murder of Joseph Davidson (Count 1) and assaulting Davidson with a deadly weapon (Count 2). As to both counts, the information alleged that Shelton personally inflicted great bodily injury and, with regard to the attempted murder count, that Shelton personally used a deadly weapon-a knife-during the commission of the offense. Shelton pled not guilty and proceeded to a jury trial on May 9, 2011. On direct appeal of his conviction, the California Court of Appeal laid out the following facts underlying this case and the evidence presented at trial:

[Shelton] and Davidson did not like each other. In 2006, while working as a bartender at the Stockman Club, [Shelton] kicked Davidson out of the bar and convinced the owner to permanently ban him from returning. After being removed from the bar, Davidson challenged [Shelton] to fight him at a park across the street. According to Davidson, rather than follow him across the street, [Shelton] stood in front of the bar and “ran his mouth.” On another occasion, Davidson and a friend went to a deli near the Stockman Club. [Shelton] was also there. As Davidson explained: “[Shelton] was running his mouth saying we needed to leave. We need to leave. It's his place. It's his town.” [Shelton] then walked outside. Davidson followed, tapped [Shelton] on the shoulder, and slapped him across the face as he turned around. [Shelton] walked away without retaliating.
On August 19, 2009, Davidson, Jason Flatt, Shaun Ross, and Janee McCalister were drinking at another Fair Oaks bar called the Vent. After drinking for a couple of hours, they decided to go back to the apartment Davidson shared with Flatt and Ross. McCalister asked to be driven to the Stockman Club so she could pick up her bicycle. The men agreed. As mentioned, Davidson was banned from entering the Stockman Club. So was Ross. Flatt drove the foursome in his pickup truck and parked in front of the bar. McCalister went inside. Davidson, Flatt, and Ross stood next to the truck.
While Davidson and his roommates waited for McCalister to return with her bicycle, [Shelton] walked out of the Stockman Club. Ross greeted [Shelton] with: “[H]ello, Peaches. How are you doing?” [Shelton] no longer worked at the Stockman Club, but nevertheless informed Davidson and Ross they would “need to leave his bar.” [Shelton] was “staring them down” and had one hand at his waistband, “posturing like he had a weapon.” Davidson told [Shelton] they “weren't at his bar, ” explained they were waiting for McCalister, and told him to “get back inside.” The conversation became heated. [Shelton] repeated several times Davidson and Ross “need[ed] to leave his bar.” Davidson repeated: “[T]his ain't your bar, dude. We are here for a reason and then we are leaving. So leave us alone. Go back inside and leave us alone.” Davidson “was getting more and more worked up.” Ross told [Shelton] he had “an open-ended offer” to “step over in the park and, you know, if he wanted to continue talking we'd go do something about it.” At about this time, McCalister came out of the bar and said she would be staying there. Ross then told Davidson and Flatt: “He doesn't want to fight. He doesn't want to do anything. He just wants to run [his] mouth. Let's get out of here.”
As Davidson, Flatt, and Ross were getting into the truck to leave, [Shelton] said: “I'll get you motherfuckers when no one's around.” Angered by this threat, Davidson pushed Ross out of his way and rushed [Shelton], pinning him against a wall and punching him in the face. Within seconds, Nazra Bertelli, the Stockman Club's doorman, tackled both Davidson and [Shelton]. Davidson fell on top of [Shelton]. Bertelli was on top of Davidson and had him in a rear chokehold. While on the ground, Davidson “felt a sudden, sharp pain in [his] side.” Bertelli then got up and lifted Davidson off of the ground, still holding him in the chokehold. Davidson was in a “daze” and his eyes were “rolling back in his head.” Seeing that his friend was in trouble, Flatt yelled to Bertelli: “[Y]ou're killing him, man. You're killing him. Let him go.” Before Bertelli could do so, [Shelton] got up and lunged at Davidson. Davidson felt another sharp pain, this time in his chest. Bertelli then threw Davidson into the side of Flatt's truck. Davidson staggered upright as blood began to stream down his shirt. Lifting his shirt, Davidson said to Flatt: “[H]e stuck me, Jay. The fucker got me.”
[Shelton] went back in the Stockman Club and locked the door behind him. Flatt and Ross helped Davidson into the truck and applied pressure to his stab wounds. They also restrained Davidson, who wanted to go after [Shelton] for stabbing him. Law enforcement officers arrived on scene a short time later. They were unable to locate [Shelton]. Paramedics also arrived and took Davidson to Mercy San Juan Medical Center. Davidson had two stab wounds. The first was to Davidson's left hip. The second was to the left side of the chest, narrowly missing his heart. Davidson survived his injuries.
[Shelton] called McCalister the day after the stabbing. McCalister told [Shelton] he was in “a lot of trouble” and she was “going to try to stay out of it.” [Shelton] asked McCalister to tell him where Davidson and his roommates lived. McCalister answered: “[W]hy do you want to know where they live, Pete? . . . [Y]ou stabbed Joe. He almost died. You won.” [Shelton] did not respond.
As mentioned, the trial court admitted into evidence testimony concerning specific instances of violent conduct engaged in by [Shelton] about 10 years before he stabbed Davidson in front of the Stockman Club. We describe this testimony in the discussion that follows. For purposes of this opinion, we need not describe [Shelton's] evidence. Suffice it to say [Shelton] did not dispute stabbing Davidson. Instead, he claimed self-defense. The jury accepted that [Shelton] honestly believed in the need to use force against Davidson in order to defend himself, but found either this belief was unreasonable or the amount of force used to defend himself from Davidson's attack was unreasonable. Accordingly, the jury found [Shelton] not guilty of attempted murder and convicted him of attempted voluntary manslaughter on the basis of imperfect self-defense.

People v. Shelton, No. C068708, 2013 WL 3778137, at *1-2 (Cal.Ct.App. Jul. 18, 2013).

         The jury also found him guilty of assault with a deadly weapon (Count 2). With regard to the attempted voluntary manslaughter conviction, the jury found true the personal use of a deadly weapon allegation, and found the great bodily injury allegation true as to both counts.

         The trial court subsequently sentenced Shelton to an aggregate term of 7 years' imprisonment (3 years for Count 1, plus 1 consecutive year for the personal use of a deadly weapon allegation, plus 3 consecutive years for the great bodily injury allegation). The court also imposed an imprisonment term of 3 years for Count 2, plus 3 years for the great bodily injury allegation, both of which were stayed pursuant to California Penal Code § 654.[2]

         Through counsel, Shelton appealed his conviction, arguing that: 1) the trial court abused its discretion by admitting testimony evidence concerning specific instances of violent conduct engaged in by Shelton about 10 years before the incident at the Stockman Club; 2) if the trial court did not err in its admission of the evidence, he was denied the effective assistance of counsel because counsel opened the door for the admission of evidence; and 3) the court erred in denying his motion for a mistrial based on the erroneous admission. On July 18, 2013, the California Court of Appeal issued a reasoned, unpublished opinion unanimously affirming the judgment against Shelton. Shelton, 2013 WL 3778137, at *7. Shelton petitioned in the California Supreme Court for review, which was denied without comment on October 9, 2013.

         Shelton next filed in the California Superior Court a pro se petition for habeas relief. In that petition, he again argued that evidence of his prior violent conduct was wrongfully admitted, and also argued that trial counsel was ineffective for persuading him not to testify on his own behalf and for failing to rehabilitate Shelton's character by introducing the character references that were later only presented at sentencing. The superior court denied the petition in an unpublished, reasoned opinion issued on February 11, 2014. Ortega raised the same claims in a pro se habeas petition in the California Court of Appeal, which was summarily denied on September 15, 2011. Shelton raised the same claims in pro se habeas petitions in the California Court of Appeal and the California Supreme Court, which were denied without comment on March 27, 2014, and June 25, 2014, respectively.

         Shelton then timely filed a pro se Petition for a Writ of Habeas Corpus to this Court on August 14, 2014. See 28 U.S.C. § 2244(d)(1)(A). Briefing is now complete, and the case has been reassigned to the undersigned judge for adjudication.


         In his pro se Petition before this Court, Shelton argues that: 1) trial counsel was ineffective for overriding Shelton's desire to testify; 2) the prosecutor and trial judge committed misconduct by lulling his counsel into being ineffective; 3) the trial court erred in admitting evidence of his past violent conduct; and 4) appellate counsel was ineffective for failing to raise trial counsel's errors on appeal.


         Under the Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”), 28 U.S.C. § 2254(d), this Court cannot grant relief unless the decision of the state court was “contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States, ” § 2254(d)(1), or “was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding, ” § 2254(d)(2). A state-court decision is contrary to federal law if the state court applies a rule that contradicts controlling Supreme Court authority or “if the state court confronts a set of facts that are materially indistinguishable from a decision” of the Supreme Court, but nevertheless arrives at a different result. Williams v. Taylor, 529 U.S. 362, 406 (2000).

         The Supreme Court has explained that “clearly established Federal law” in § 2254(d)(1) “refers to the holdings, as opposed to the dicta, of [the Supreme Court] as of the time of the relevant state-court decision.” Id. at 412. The holding must also be intended to be binding upon the states; that is, the decision must be based upon constitutional grounds, not on the supervisory power of the Supreme Court over federal courts. Early v. Packer, 537 U.S. 3, 10 (2002). Where holdings of the Supreme Court regarding the issue presented on habeas review are lacking, “it cannot be said that the state court ‘unreasonabl[y] appli[ed] clearly established Federal law.'” Carey v. Musladin, 549 U.S. 70, 77 (2006) (citation omitted).

         To the extent that the Petition raises issues of the proper application of state law, they are beyond the purview of this Court in a federal habeas proceeding. See Swarthout v. Cooke, 131 S.Ct. 859, 863 (2011) (per curiam) (holding that it is of no federal concern whether state law was correctly applied). It is a fundamental precept of dual federalism that the states possess primary authority for defining and enforcing the criminal law. See, e.g., Estelle v. McGuire, 502 U.S. 62, 67-68 (1991) (a federal habeas court cannot reexamine a state court's interpretation and application of state law); Walton v. Arizona, 497 U.S. 639, 653 (1990) (presuming that the state court knew and correctly applied state law), overruled on other grounds by Ring v. Arizona, 536 U.S. 584 (2002).

         In applying these standards on habeas review, this Court reviews the “last reasoned decision” by the state court. See Robinson v. Ignacio,360 F.3d 1044, 1055 (9th Cir. 2004) (citing Avila v. Galaza, 297 F.3d 911, 918 (9th Cir. 2002)). A summary denial is an adjudication on the merits and entitled to deference. Harrington v. Richter, 562 U.S. 86, 99 (2011). Under the AEDPA, the state court's findings of fact are presumed to be correct unless the petitioner ...

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