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Van Tilburg v. Callahan

United States District Court, E.D. California

June 28, 2017

CLIFFORD JOHN VAN TILBURG, Petitioner,
v.
CHARLES W. CALLAHAN, Warden, Chuckawalla Valley State Prison, [1]Respondent.

          MEMORANDUM DECISION

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

         Clifford John Van Tilburg, 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. Van Tilburg is in the custody of the California Department of Corrections and Rehabilitation and incarcerated at Chuckawalla Valley State Prison. Respondent has answered, and Van Tilburg has replied.

         I. BACKGROUND/PRIOR PROCEEDINGS

         In connection with sexual offenses committed against his stepdaughter and his assault and threatening of an eyewitness who inadvertently observed Van Tilburg having sexual intercourse with the victim, Van Tilburg was charged with: lewd and lascivious act upon a child under 14 on or about June 18, 2002 (Count 1); oral copulation of a child under 14 on or about June 18, 2002 (Counts 2 and 3); lewd and lascivious act upon a child on or about June 18, 2003 (Count 4); oral copulation of a child under 14 on or about June 18, 2003 (Counts 5 and 6); lewd and lascivious act upon a child on or about June 18, 2004 (Count 7); penetration by foreign object on a person under 18 on or about April 19, 2006 (Count 8); dissuading a witness from reporting a crime on or about April 19, 2006 (Count 9); possession of an assault weapon on or about April 19, 2006 (Count 10); and continuous sexual abuse of a child from June 18, 2001 through June 17, 2003 (Count 11). The information further alleged as to Count 9 that Van Tilburg used a deadly and dangerous weapon.

         Van Tilburg waived his right to a jury trial, and the court found him guilty of all the counts and found true the allegation that he had used a deadly weapon in dissuading a witness from reporting one of the sexual molestations. He was subsequently sentenced to an aggregate imprisonment term of 31 years and 8 months (16 years on count 11, with consecutive terms of 2 years on Counts 1, 2, 3, 5, 6, and 9, consecutive terms of 8 months on Counts 4, 7, 8, and 10, and a consecutive term of 1 year for the deadly weapon enhancement).

         Through counsel, Van Tilburg appealed his conviction on the ground that he was improperly convicted of both continuous sexual abuse of the victim (Count 1) and the discrete sex offenses committed against the same victim over the same period of time (Counts 1, 2, 3, 4, and 6). The People conceded the error. On January 23, 2009, the California Court of Appeal reversed the judgment in part and remanded to the trial court “with instructions to dismiss either count 11 or counts 1, 2, 3, 5, and 6, and to resentence [Van Tilburg] accordingly.” People v. Vantilburg, No. C056405, 2009 WL 154560, at *2 (Cal.Ct.App. Jan. 23, 2009). The judgment was affirmed in all other respects. Id. Upon remand, the trial court dismissed Count 11, denied Van Tilburg's request for probation, and resentenced him to an imprisonment term of 21 years and 8 months.

         Van Tilburg then filed a pro se habeas petition in the California Superior Court. In that petition, Van Tilburg claimed that trial counsel was ineffective for failing to object to Van Tilburg being charged with an offense for which no preliminary hearing was held, and the trial court acted in “excess of its jurisdiction” when it proceeded to trial on that charge. The superior court denied the petition by form order indicating that the petition suffered from numerous procedural defects and failed to establish a prima facie case for relief. The court's order also included an addendum stating:

The clerk's minutes of July 6, 2006 reflect a stipulation that the Preliminary Hearing be submitted on the police reports, that [Van Tilburg] waived the one sitting rule and that [Van Tilburg] waived his Fifth Amendment Rights. This Court has reviewed the police reports submitted to the Honorable Judge Stephan Benson for Ruling on July 27, 2006 that were lodged with the court file. The police reports would support a holding order as to the charged conduct alleged in count 11.

         Van Tilburg then filed in the Court of Appeal a counseled habeas petition that alternatively stated that it could be construed as a motion for leave to file a late notice of appeal in which he argued that appellate counsel was ineffective for failing to raise additional claims on appeal and for failing to file a second appeal or a state habeas corpus petition. The Court of Appeal summarily denied the petition on March 10, 2011.

         Van Tilburg raised the same claims in a counseled habeas petition in the California Supreme Court. In response, the People conceded that “it appears appropriate to grant the relief requested, in the form of allowing an appeal.” Van Tilburg then filed a counseled opening brief in the California Court of Appeal, which raised the following claims: 1) there was insufficient evidence to sustain Van Tilburg's conviction on Count 10 because there was no evidence that Van Tilburg either actually or constructively possessed an assault weapon; and 2) the trial court abused its discretion in finding that Van Tilburg waived the court-ordered California Penal Code § 288.1 probation evaluation[2] and in denying probation. On February 10, 2015, the Court of Appeal issued a reasoned, unpublished opinion affirming the judgment against Van Tilburg. People v. Vantilburg, No. C072952, 2015 WL 551476, at *5 (Cal.Ct.App. Feb. 10, 2015). Van Tilburg petitioned for review in the California Supreme Court, which was denied without comment on April 22, 2015.

         Van Tilburg then filed a pro se Petition for a Writ of Habeas Corpus to this Court on July 16, 2016, the timeliness of which Respondent does not dispute. 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.

         II. GROUNDS/CLAIMS

         In his pro se Petition before this Court, Van Tilburg argues that: 1) there was insufficient evidence that he possessed an assault weapon to sustain his conviction on Count 10; 2) the trial court erred in denying Van Tilburg a second Penal Code § 288.1 evaluation and in denying probation; and 3) trial counsel was ineffective for failing to explain the purpose and necessity of a § 288.1 evaluation.

         III. STANDARD OF REVIEW

         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 ...


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