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Lawhead v. Sherman

United States District Court, E.D. California

July 21, 2017

STU SHERMAN, Respondent.



         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 filed on June 7, 2016, [1] ECF No. 1 in which petitioner raises two claims: (1) that the trial court abused its discretion in declining to dismiss four of his five prior strike convictions; and (2) that his sentence amounts to cruel and unusual punishment. Respondent has answered, ECF No. 12, and petitioner has declined to file a traverse within the allotted time.


         I. Proceedings In the Trial Court

         A. Prosecution Case

         On July 25, 2010, at approximately 10:45 a.m., Tifanee Blue was walking across a Citrus Heights parking lot. Blue, a Blockbuster store shift manager, was on her way to make a bank deposit of $1, 157.75. A dark purple PT Cruiser adorned with ‘ghost-like' flame decals cut Blue off and parked in a disabled parking space. The driver of the car opened the door, moved his left leg out of the car, and produced a small semiautomatic handgun. He was dressed in jean shorts, a dark shirt, dark wrap-around sunglasses, and a baseball cap. The driver ordered Blue to give him the deposit bag. She did so and the driver shut the door and drove away.

         Blue called dialed 911 and an officer responded a few minutes later. Blue described the man who had robbed her as a white male somewhere between twenty and thirty. Officers attempted to locate the PT cruiser using city records, but were unsuccessful in doing so. Days prior to the robbery, however, police officers conducting unrelated surveillance observed a PT cruiser matching the relevant description. One of the officers took down the plate number and ultimately forwarded it to the detective investigating the July 25 robbery. After obtaining the plate number, officers determined that the car was registered to petitioner and Annette Dustin.

         As of July 25, 2010, petitioner was assigned to parole agent Jerry Riggs. Riggs last saw petitioner on July 27, 2010 and, on that date, learned that petitioner had been evicted from his apartment and was trying to secure lodging with his stepfather. Petitioner stated that he would not be at his stepfather's home for several days, however, and would instead be sleeping in a car at a friend's place in the interim. He did not provide Riggs with a precise address for his friend's place. Riggs was informed that petitioner was a suspect in the July 25 robbery later that day, but was unable to provide investigators with petitioner's immediate whereabouts. Petitioner failed to appear at the next parole meeting on August 4, 2010.

         On September 8, 2010, Sacramento County Sheriff's Deputy David Treat acted on a tip and went to a location in the hopes of apprehending petitioner. After arriving, Treat saw a Toyota Camry being driven by a woman. He noticed that there was a passenger in the front seat of the Camry who was slumped down and had the bill of his hat covering his face. Treat followed the Camry and two other patrol vehicles joined the pursuit shortly thereafter. Eventually the Camry pulled into a McDonald's parking lot.

         The driver of the Camry raised her hands and petitioner, who was the passenger, put a handgun in his mouth. Treat ordered the woman out of the Camry and she complied. Petitioner then got out of the car and, still holding the handgun, said he wanted the officers to kill him. Petitioner repeatedly entered and exited the car during the ensuing standoff. During the standoff, petitioner told a police negotiator that “he did what he did” because he needed money. He also related that he had been evicted from his apartment and had issues with his mother due to his methamphetamine use. The standoff eventually ended and petitioner was taken into custody.

         Officers recovered a handgun that had been stolen during a burglary on September 5, 2010. During a recorded jail visit with a relative, petitioner admitted that he knew the gun was stolen.

         B. Defense Case

         Annette Dustin, petitioner's mother, testified that she had seen someone other than petitioner driving the PT cruiser used in the robbery. She stated that she did not recognize the driver. Dustin claimed that she had relayed this information to Riggs in May or June of 2010. After petitioner's arrest, Dustin reported the car stolen because petitioner no longer had it and she wanted it back.

         Dustin also testified that, after petitioner's prior term in prison ended, he had secured two jobs and that she had assisted him in obtaining an apartment and car. This brief period of stability ended, however, when petitioner began using drugs. As noted above, the relationship between petitioner and Dustin deteriorated when she learned of his drug use.

         C. Outcome

         The jury found petitioner guilty of (1) second degree robbery (Cal. Penal Code § 211); (2) two counts of being a felon in possession of a firearm (Cal. Penal Code § 12021(a)); (3) receiving a stolen firearm (Cal. Penal Code § 496(a)); and (4) exhibiting a firearm to resist and prevent arrest (Cal. Penal Code § 417.8). 2 CT 331. The jury also found true an enhancement for personal use of a firearm under Cal. Penal Code § 12022.53(b). Id.

         D. Romero Motion

         After a trial on the prior conviction allegations, the trial court determined that petitioner had five prior, serious felony convictions. 1 CT at 8. Petitioner filed a motion pursuant to People v. Superior Court (Romero), 13 Cal.4th 497 (1996) in which he argued that the prior convictions were not strikes and, in the alternative, four of his five prior convictions should be stricken because they amounted to a continuous course of conduct. 1 CT 265-278. The trial court denied petitioner's Romero motion. Id. at 8. Petitioner was sentenced to an indeterminate term of one hundred years to life and a determinate term of fifteen years. 2 CT 331-332.

         II. Post-Conviction Proceedings

         Petitioner timely appealed, and the court of appeal remanded for the purpose of staying either (1) the sentence for receiving a stolen firearm or (2) the sentence for being a felon in possession of a firearm. Lodg. Doc. 11. As respondent notes, this effectively reduced petitioner's sentence to an aggregate term of ninety years to life (75 years to life in addition to a fifteen year, consecutive, determinate sentence). ECF No. 12 at 10. The court of appeals otherwise affirmed the judgment. Lodg. Doc. 11. The California Supreme Court denied review on June 10, 2015. Lodg. Doc. 13. The instant federal petition, dated June 7, 2016, was docketed on June 10, 2016. ECF No. 1.


         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, 562 U.S. 86, 99 (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 ...

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