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Carpenter v. Holland

United States District Court, E.D. California

July 14, 2017

STEVEN WARREN CARPENTER, Petitioner,
v.
KIM HOLLAND, Warden, Respondent.

          FINDINGS AND RECOMMENDATIONS

          ALLISON CLAIRE, UNITED STATES MAGISTRATE JUDGE

         Petitioner is a California state prisoner proceeding pro se with an application for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. The action proceeds on the petition docketed on March 14, 2014, ECF No.1, [1] which challenges petitioner's 2011 conviction for failing to update his sex offender registration and report a change of address. Respondent has answered. ECF No. 17. Petitioner did not file a traverse, and the time for doing so has expired.

         BACKGROUND

         I. Proceedings in the Trial Court

         On November 12, 2009, petitioner was charged by Information in Shasta County Superior Court with two felony offenses. Count One alleged that petitioner had failed to update his sex offender registration annually, in violation of Cal. Penal Code § 290.012. Count Two charged him with failing to report a change of address in violation of Cal. Penal Code § 290.013. The Information further alleged that Petitioner had suffered eighteen prior convictions for lewd and lascivious touching of a child (Cal. Penal Code, §§ 288(a), 1170.12) and that he had served a prior prison term (Cal. Penal Code, § 667.5(b)). 1 CT 16-23.[2]

         The evidence at trial established the following facts, as summarized by the California Court of Appeal:[3]

Defendant was convicted of sex crimes requiring sex offender registration in October 1984. Defendant had most recently updated his registration in November 2007, several days before his birthday, listing as his address his mother's house in Redding.
On September 20, 2008, a detective from the Redding Police Department interviewed defendant as part of a felony investigation. Defendant confirmed he was still living at the same address. During the interview, the detective advised defendant that the case might be submitted to the prosecutor for prosecution.
On October 2, 2008, an arrest warrant was issued for defendant. The next day, the detective went to defendant's mother's house to attempt to serve the warrant, but defendant was not there. At some point, the detective learned defendant was no longer in California.
Nearly a year later, on September 25, 2009, defendant arrived at his sister's home in Oroville. Two days later, a Butte County deputy sheriff responding to a domestic violence call encountered defendant at that location. Defendant initially gave the deputy some false names and dates of birth. Once the deputy ascertained defendant's actual identity, however, defendant admitted there was a felony warrant out for him in Shasta County. The deputy arrested him. During their encounter, defendant told the deputy that he had “recently been in the state of Alaska, and he was residing and working up there.”
In a conversation recorded during a jail visit on October 1, 2009, defendant said that a year earlier he had gone “to Wasilla to see Rita, ” “went around there and then . . . went over to . . . Fairbanks and . . . was staying at Fairbanks for a while.” He said he “just traveled around” and that he “didn't have to register in Alaska [because his] crime was before 1990.” He explained he was “just gonna turn [him]self in” and he “came down just to take care of this.”

         On April 14, 2011, a jury found petitioner guilty on both counts. 1 CT 295-96. The same day, petitioner admitted all of the prior conviction allegations. 1 CT 293. On May 20, 2011, petitioner was sentenced pursuant to California's “three strikes” recidivist sentencing statute to concurrent terms of twenty-five years to life on each of the two counts, plus one additional year for the prior prison term enhancement, for an aggregate terms of twenty-six years to life in prison. 2 CT 437-40.

         II. Post-Conviction Proceedings

         Petitioner timely appealed. On August 31, 2012, the California Court of Appeal reversed petitioner's conviction on Count One for insufficient evidence, and affirmed the judgment and sentence on Count Two. Lodged Doc. 4. The California Supreme Court denied review on December 12, 2012. Lodged Doc. 6.

         Petitioner filed a petition for writ of habeas corpus in the Shasta County Superior Court on June 20, 2013, which was denied in a written decision on July 15, 2013. Lodged Docs. 8, 9. Petitioner filed a second habeas petition in the Shasta County Superior Court on September 17, 2013, which was denied in a written decision on September 30, 2013. Lodged Docs. 10, 11. Petitioner next filed a habeas petition in the California Court of Appeal, which was denied without comment or citation on October 31, 2013. Lodged Docs. 12, 13. Petitioner then filed a habeas petition in the California Supreme Court, which was silently denied on February 11, 2014. Lodged Doc. 14; Suppl. Lodged Doc. 15.

         As previously noted, the instant federal petition was filed on March 14, 2014.

         STANDARDS GOVERNING HABEAS RELIEF UNDER THE AEDPA

         28 U.S.C. § 2254, as amended by the Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”), provides in relevant part as follows:

(d) An application for a writ of habeas corpus on behalf of a person in custody pursuant to the judgment of a state court shall not be granted with respect to any claim that was adjudicated on the merits in State court proceedings unless the adjudication of the 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.

         The statute applies whenever the state court has denied a federal claim on its merits, whether or not the state court explained its reasons. Harrington v. Richter, 131 S.Ct. 770, 785 (2011). State court rejection of a federal claim will be presumed to have been on the merits absent any indication or state-law procedural principles to the contrary. Id. at 784-785 (citing Harris v. Reed, 489 U.S. 255, 265 (1989) (presumption of a merits determination when it is unclear whether a decision appearing to rest on federal grounds was decided on another basis)). “The presumption may be overcome when there is reason to think some other explanation for the state court's decision is more likely.” Id. at 785.

         The phrase “clearly established Federal law” in § 2254(d)(1) refers to the “governing legal principle or principles” previously articulated by the Supreme Court. Lockyer v. Andrade, 538 U.S. 63, 71-72 (2003). Only Supreme Court precedent may constitute “clearly established Federal law, ” but courts may look to circuit law “to ascertain whether…the particular point in issue is clearly established by Supreme Court precedent.” Marshall v. Rodgers, 133 S.Ct. 1446, 1450 (2013).

         A state court decision is “contrary to” clearly established federal law if the decision “contradicts the governing law set forth in [the Supreme Court's] cases.” Williams v. Taylor, 529 U.S. 362, 405 (2000). A state court decision “unreasonably applies” federal law “if the state court identifies the correct rule from [the Supreme Court's] cases but unreasonably applies it to the facts of the particular state prisoner's case.” Id. at 407-08. It is not enough that the state court was incorrect in the view of the federal habeas court; the state court decision must be objectively unreasonable. Wiggins v. Smith, 539 U.S. 510, 520-21 (2003).

         Review under § 2254(d) is limited to the record that was before the state court. Cullen v. Pinholster, 131 S.Ct. 1388, 1398 (2011). The question at this stage is whether the state court reasonably applied clearly established federal law to the facts before it. Id. In other words, the focus of the § 2254(d) inquiry is “on what a state court knew and did.” Id. at 1399. Where the state court's adjudication is set forth in a reasoned opinion, §2254(d)(1) review is confined to “the state court's actual reasoning” and “actual analysis.” Frantz v. Hazey, 533 F.3d 724, 738 (9th Cir. 2008) (en banc).

         DISCUSSION

         Respondent has raised no procedural defenses, but contends that § 2254(d) bars relief on each of petitioner's ten claims.

         I. Claim One: Jury Instruction On Elements Of Count Two Violated Due Process

         A. Petitioner's Allegations and Pertinent State Court Record

         Petitioner was charged in Count Two with violation of Cal. Penal Code § 290.013, which provides as follows:

(a) Any person who was last registered at a residence address pursuant to the Act who changes his or her residence address, whether within the jurisdiction in which he or she is currently registered or to a new jurisdiction inside or outside the state, shall, in person, within five working days of the move, inform the law enforcement agency or agencies with which he or she last registered of the move, the new address or transient location, if known, and any plane he or she has to return to California.
(b) If the person does not know the new residence or address or location at the time of the move, the registrant shall, in person, within five days working days of the move, inform the last registering agency or agencies that he or she is moving. The person shall later notify the last registering agency or agencies, in writing, sent by certified or registered mail, of the new address or location within five working days of moving into the new residence address or location, whether temporary or permanent.

         The jury was instructed with a modified version of CALCRIM 1170, as follows:

The defendant is charged in Count 2 with failing to register as a sex offender in violation of Penal Code § 290.
To prove that defendant is guilty of the crime, the People must prove that:
The defendant was previously convicted of a registerable sex offense; The defendant resided in Redding, California The defendant actually knew he had duty under Penal Code § 290 to register as a sex offender in California and that he had to register within five working days of a change of his residence address or transient location, as specified in element 4 below; The defendant willfully failed to inform, in person, the law enforcement agency with which he is currently registered of a change in his residence address, or transient location, whether within the jurisdiction in which he is currently registered or to a new jurisdiction within or without the State of California, within 5 working days of the move;
OR
If the defendant did not know the new residence address at the time of the move, he did willfully fail to inform, in writing, the agency with which he last registered, within 5 working days, that he is moving, and to later notify that agency in writing, sent by certified or registered mail, of his new address, or transient location, within 5 working days of moving into the new residence or location, whether temporary or permanent.
Someone commits an act willfully when he or she does it willingly or on purpose.
Residence means one or more addresses where someone regularly resides, regardless of the number of days or nights spent there, such as a shelter or structure that can be located by a street address. A residence may include, but is not limited to, houses, apartment building, motels, homeless shelters, and recreational and other vehicles.

1 RT 216-217; 2 CT 326-327, 363-364.[4]

         Petitioner contends that the instructions were “erroneous in that they omitted elements, conflated the elements of two offenses, and contained an inapplicable element.” ECF No. 1 at 6.

         B. The Clearly Established Federal Law

         Errors of state law do not present constitutional claims cognizable in habeas. See Pulley v. Harris, 465 U.S. 37, 41 (1984). Erroneous jury instructions therefore do not support federal habeas relief unless the infirm instruction so infected the entire trial that the resulting conviction violates due process. Estelle v. McGuire, 502 U.S. 62, 72 (1991) (citing Cupp v. Naughten, 414 U.S. 141, 147 (1973)). See also Donnelly v. DeChristoforo, 416 U.S. 637, 643 (1974) (“‘[I]t must be established not merely that the instruction is undesirable, erroneous, or even ‘universally condemned, ' but that it violated some [constitutional right]'”). The challenged instruction may not be judged in artificial isolation, but must be considered in the context of the instructions as a whole and the trial record overall. Estelle, 502 U.S. at 72. Moreover, relief is only available if there is a reasonable likelihood that the jury has applied the challenged instruction in a way that violates the Constitution. Id. at 72-73.

         C. The State Court's Ruling

         This claim was presented on direct appeal. Because the California Supreme Court denied discretionary review, the opinion of the California Court of Appeal constitutes the last reasoned decision on the merits and is the subject of habeas review in this court. See Ylst v. Nunnemaker, 501 U.S. 797 (1991); Ortiz v. Yates, 704 F.3d 1026, 1034 (9th Cir. 2012).

         The state appellate court ruled as follows:

Defendant contends the jury instruction on failing to register a change of address “contained an inapplicable element, omitted required elements, and improperly conflated multiple elements of two separate offenses.” We disagree.
Part of defendant's challenge to the jury instruction here is based on the premise that subdivisions (a) and (b) of section 290.013 “are not alternate statements of the same offense, ” but instead define “two separate offenses.” Based on that premise, defendant contends the instruction was erroneous because it “omitted required elements, and improperly conflated multiple elements” of the separate offenses.
These arguments are without merit because their premise is flawed. Subdivision (b) of section 290.018 makes it a felony for a “person who is required to register under the act based on a felony conviction . . . [to] willfully violate[] any requirement of the act.” Here, in count 2, the “requirement of the act” defendant was charged with violating was the requirement in section 290.013 that a registrant report any change from a previously registered residence address. In this regard, subdivisions (a) and (b) of the statute do not set forth separate and distinct requirements, the violation of which qualify as separate and distinct offenses under section 290.018, subdivision (b). Instead, subdivision (b) of the statute simply provides that the notification requirements of section 290.013 are slightly different “[i]f the person does not know the new residence address or location at the time of the move.” Whether the person knows where he will be moving at the time of the move, the basic requirement of section 290.013 is the same: the person must provide notice of the move - i.e., that he is leaving the residence address at which he was previously registered. The small variation on the notice requirements that exists depending on whether the person knows where he will be moving does not give rise to separate offenses. Accordingly, all of defendant's arguments based on that premise have no merit.
That leaves us with just two remaining arguments. First, defendant complains that section 290.13 “required proof that [he] was registered as a sex offender at a specific residence address, ” but the jury instruction required the prosecutor to prove, as an element of the crime, only that “defendant resided in Redding, California.” The People do not attempt to defend this aspect of the instruction as correct, but they argue that “any error in this regard is necessarily harmless” because no reasonable jury could have found that defendant was not registered at a specific address in Redding. Defendant offers no reply to this harmless error argument.
We agree the jury instruction here should have informed the jurors that they had to find that defendant was registered at a residence address pursuant to the Sex Offender Registration Act. (See §§ 290, subd. (a), 290.013, subd. (a).) The evidence of this fact, however, was undisputed, and it is clear to us beyond any reasonable doubt that the error in the jury instruction did not affect the result. (See People v. Flood (1998) 18 Cal.4th 470, 506-507 [instructional error removing an element from the jury's consideration “may be found harmless in circumstances . . . in which there is no possibility that the error affected the result”].)
Second, defendant complains that “[t]he instruction given did not clearly require the jury to find beyond a reasonable doubt that [he] had ‘moved' or changed his ‘residence address, '” rather than simply taken “a vacation or a trip to visit friends or relatives.” Not so. The instruction specifically told the jurors the People had to prove that “defendant willfully failed to inform . . . the law enforcement agency with which he last registered of a change in his residence[] address, or transient location . . . and any plans he has to return to California within five working days of the move” or that “he did willfully fail to inform . . . the agency with which he last registered within five working days that he is moving and to later notify that agency .. . of his new address or transient location within five working days of moving into the new residence[] address or location . . . .” (Italics added.) The italicized language clearly communicated that a move or change of residence address, and not simply a vacation or a trip, was necessary to trigger the notice requirements of section 290.013.
For the foregoing reasons, we reject defendant's contention that the trial court erred in instructing the jury on the charge of failing to register a change of address.

Lodged Doc. 4 at 9-12.

         D. Objective Reasonableness Under § 2254(d)

         The court of appeal's construction of Cal. Penal Code § 290.013 is a matter of state law that is not reviewable by this court. See Estelle v. McGuire, 502 U.S. 62, 67-68 (1991) (“[I]t is not the province of a federal habeas court to reexamine state-court determinations on state-law questions.”); Bradshaw v. Richey, 546 U.S. 74, 76 (2005) (“a state court's interpretation of state law, including one announced on direct appeal of the challenged conviction, binds a federal court sitting in habeas corpus.”). Accordingly, to the extent Claim One is based on petitioner's theory that § 290.013 establishes two distinct offenses, it can provide no ...


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