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Faulkner v. E. Valenzuela

United States District Court, E.D. California

July 27, 2017

MICHAEL JAMES FAULKNER, Petitioner,
v.
E. VALENZUELA,[1] Respondent.

          FINDINGS AND RECOMMENDATIONS

          DEBORAH BARNES UNITED STATES MAGISTRATE JUDGE.

         Petitioner, Michael James Faulkner, is a state prisoner proceeding pro se and in forma pauperis with a petition for a writ of habeas corpus under 28 U.S.C. § 2254. Petitioner challenges a judgment of conviction entered against him on April 23, 2013 in the Shasta County Superior Court for one count of criminal threats and one count of battery. (Doc. 10 at 323.[2])

         Petitioner seeks federal habeas relief on the following grounds: (1) the trial court committed prejudicial error when it overruled his objection to Officer Jerry Fernandez's testimony that victim Megan Burkett was in sustained fear; (2) the cumulative prejudicial effect of two critical errors violated his due process rights; (3) the prosecutor violated his constitutional rights through his charging decisions and failure to excuse a biased juror; and (4) his trial and appellate counsel were ineffective. (ECF No. 1 at 4-5.) As discussed below, petitioner's habeas petition should be denied.

         I. BACKGROUND

         A. Factual background

         In an unpublished opinion affirming petitioner's conviction, the California Court of Appeal for the Third Appellate District provided the following factual summary:

On the night of August 4, 2012, [petitioner's] sister, Megan, called 911 and reported her brother had just punched her in her face and choked her. When Megan told [petitioner] she was going to call the police, he ran into the kitchen, then back to Megan's room and tried to stab her. [Petitioner] then “peeled out” of the house in their father's truck. Megan advised the 911 dispatcher her brother left the house with a small kitchen knife, might still be on parole, was on antipsychotic medication, and had been drinking.
Shasta County Deputy Sheriff Jerry Fernandez responded to the scene and met Megan in the driveway. She appeared upset, in fear, and was almost in tears. She was very worried about where [petitioner] was and whether the police could locate him. On her left cheek there was some swelling, bruising, and redness.
Megan reported to [Officer] Fernandez that [petitioner] had punched her. When she told [petitioner] she was calling the police, he choked her in a headlock, ripped the phone from her hand and threw it to the ground. She ran and locked herself in a bedroom. [Petitioner] got something from a drawer in the kitchen; she believed he would use that utensil to harm her. [Petitioner] threatened Megan through the door yelling, “Oh you think you're going to send me back to prison? I'll stab that bitch.” “I'll stab you if you call nine-one-one because I'm not going back to prison.” [Petitioner] then tried to force his way into the room with a knife. [Officer] Fernandez observed fresh damage to the bedroom door. The doorjamb was broken and there were nicks in the door which were consistent with someone trying to pry it open with a knife.
Megan reported she called 911 because she was afraid of [petitioner's] threats to stab her. Deputy Fernandez was with Megan for at least 30 minutes. During that entire time, she appeared to remain frightened, upset, worried, and on the verge of tears. She asked what she could do to protect herself from [petitioner]. She asked [Officer] Fernandez to try to find [petitioner] so “he wouldn't be out and she would be safe.” Megan's sister-in-law, Nicole Faulkner, was also at the scene. [Officer] Fernandez interviewed her. Her story largely coincided with Megan's. After the disturbance, Megan ran to the bedroom and [petitioner] ran to the kitchen. He ran toward the bedroom with a large kitchen knife, pounded on the door and yelled, “‘I'll stab that bitch. I'll stab that bitch.'” He then used the knife to try to pry the door open, while Megan was screaming that [petitioner] was trying to stab her.
At trial, Megan was an uncooperative witness and recanted some of her earlier statements. She testified that she and Erica Leeper, her best friend's younger sister, had been at her parent's house on the porch with [petitioner]. She believed [petitioner] was on drugs at the time. He wanted to take Erica to a bar, but Megan told Erica not to go and Megan and [petitioner] argued about that. [Petitioner] and Megan started shoving each other around, and at some point he either pushed, punched, or slapped Megan on the cheek. [Petitioner] blocked her from going into the house and Megan grabbed the phone and threatened to call the police and their parents. [Petitioner] went to the kitchen and Megan thought he was getting something to harm her, so she ran to the bedroom and locked the door. She called the police. [Petitioner] tried to unlock the bedroom door with a small kitchen knife, but did not damage the door. She also testified [petitioner] never threatened to stab or kill her. She told the police he had threatened her so the police would arrest [him], because he was high on drugs. Megan testified she was afraid [petitioner] would harm her or himself because of his drug use, not because he had threatened her.
Nicole was in the house when one of her children came to her and told her Megan needed her. She opened the door to let Megan in the house. Megan appeared jumpy, frantic, and frustrated. Inside the house, [petitioner] and Megan were yelling at each other. A few minutes later, Megan ran down the hall into the bedroom and [petitioner] ran into the kitchen and came back with a small kitchen knife. [Petitioner] tried to unlock the door with the knife. Megan was “screaming and going crazy” because she was afraid.
Erica also testified that [petitioner] got mad at Megan for interfering in their plan to go to the bar. She did not see [petitioner] punch Megan, but saw her fall to the ground while [petitioner] stood in front of her. Megan said she was going to call the police and [petitioner] tried to grab the phone from her. Erica denied that [petitioner] put Megan in a choke hold or “smacked” the phone out of Megan's hand, although she told [Officer] Fernandez he had done both.
Erica testified that when Megan got inside the house, she was angry. [Petitioner] ran to the kitchen and Megan ran into the bedroom. [Petitioner] came out of the kitchen with a large white-handled knife. Erica went outside. [Petitioner] came outside with the knife still in his hand, and said, “‘She's trying to call the police and tell them I'm going to stab her.'” [Petitioner] then left in a white truck.
[Petitioner] was arrested later that evening. Deputies did not find a knife in the vehicle. [Petitioner] did not appear to be under the influence of alcohol or drugs. The truck was released to Megan and her husband. Upon picking up the truck, Megan appeared very worried, her voice was shaking and she was trembling and she expressed concern about whether [petitioner] would be released from jail soon.

People v. Faulkner, 2014 WL 1678611, at *1-2 (Cal.Ct.App. Apr. 29, 2014).[3]

         B. Deference to Court of Appeal's factual findings

         On federal habeas review, “[f]actual determinations by state courts are presumed correct absent clear and convincing evidence to the contrary.” Miller-El v. Cockrell, 537 U.S. 322, 340 (2003) (citing 28 U.S.C. § 2254(e)(1)); see also Davis v. Ayala, 135 S.Ct. 2187, 2199-2000 (2015) (citation omitted) (“State-court factual findings . . . are presumed correct; the petitioner has the burden of rebutting the presumption by clear and convincing evidence.”). “This presumption applies even if the finding was made by a state court of appeals rather than by the state trial court.” Pollard v. Galaza, 290 F.3d 1030, 1035 (9th Cir. 2002) (citation omitted).

         Thus, unless the petitioner submits clear and convincing evidence to the contrary, a federal habeas court may rely on a state appellate court's recitation of the facts to rule on a habeas petition. Id. This procedure is particularly appropriate where, as here, the petitioner “has [not] challenged these findings.” Slovik v. Yates, 556 F.3d 747, 749 n.1 (9th Cir. 2009); see also Runningeagle v. Ryan, 686 F.3d 758, 763 n.1 (9th Cir. 2012); Moses v. Payne, 555 F.3d 742, 746 n.1 (9th Cir. 2009); Tilcock v. Budge, 538 F.3d 1138, 1141 (9th Cir. 2008).

         C. Procedural background in state court

         “[Petitioner] was charged with criminal threats, battery, and damage of a wireless device.” Id. at *2. “The information further alleged a prior strike conviction and a prior prison term.” Id. “Following trial, a jury found [petitioner] guilty of criminal threats and battery, and not guilty of damage of a wireless device.” Id. “In bifurcated proceedings, the trial court found the enhancement allegations true.” Id. “After denying [petitioner's] motion to strike his prior conviction and reduce the criminal threats conviction to a misdemeanor, the trial court sentenced petitioner to the upper term of three years on the criminal threats conviction, doubled to six years because of the prior strike conviction, plus five years for the serious felony enhancement, and one year for the prior prison term enhancement.” Id. “The trial court also sentenced petitioner to a concurrent six-month term on the misdemeanor battery conviction.” Id.

         On appeal, petitioner contended that “the trial court prejudicially erred in admitting, over objection, [Officer Fernandez's] testimony that the victim was in ‘sustained fear.'” Id. Further, he contended that “the cumulative effect of that error, combined with testimony that suggested [he] was in custody, was prejudicial.” Id. On April 29, 2014, the Court of Appeals issued its unpublished opinion rejecting these arguments and affirming the trial court's judgment. Id. at *1, 3-6. Petitioner did not raise claims (3) and (4) of his federal habeas petition in the Court of Appeal. Compare id. at *1, with supra pp. 1-2. On July 25, 2014, the California Supreme Court denied his petition for review without comment. (Doc. 6.)

         On July 9, 2015, petitioner filed a habeas petition in the California Supreme Court. (Doc. 7.) Therein, he raised claims (3) and (4). Compare id., with supra pp. 1-2. On October 28, 2015, the petition was denied without comment. (Doc. 8.)

         D. Procedural background in federal court

         On July 10, 2015, petitioner filed a habeas petition in the Eastern District of California. (ECF No. 1.) Therein, petitioner asserted the following claims: (1) the trial court committed prejudicial error when it overruled his objection to Officer Fernandez's testimony that Megan was in sustained fear; (2) the cumulative prejudicial effect of two critical errors violated his due process rights; (3) the prosecutor violated his constitutional rights through his charging decisions and failure to excuse a biased juror; and (4) his trial and appellate counsels were ineffective. (Id. at 4-5.)

         Petitioner acknowledged therein that claims (3) and (4) were unexhausted. (Id. at 5.) Thus, the court ordered him to file a motion for stay and abeyance or an amended petition containing only his exhausted claims. (ECF No. 8 at 4.)

         On November 8, 2015, he filed a motion for a stay. (ECF No. 10.) Then, on December 11, 2015, he notified the court that he had exhausted claims (3) and (4). (ECF No. 11.)

         On January 6, 2016, the court ordered the state to respond to the petition within sixty days. (ECF No. 12.) The state has filed its answer. (ECF No. 16.) Petitioner has not filed a reply, or traverse, which is not obligatory. Rule 5(e), Rules Governing Section 2254 Cases (“The petitioner may submit a reply to the respondent's answer or other pleading within a time fixed by the judge.”); see also id. advisory committee's note (“Rule 5 . . . does not contemplate a traverse to the answer, except under special circumstances.”).

         II. STANDARD OF REVIEW

         An application for a writ of habeas corpus by a person in custody under a judgment of a state court can be granted only for violations of the Constitution or laws of the United States. 28 U.S.C. § 2254(a). A federal writ is not available for alleged error in the interpretation or application of state law. See Wilson v. Corcoran, 562 U.S. 1, 5 (2010) (per curiam); Estelle v. McGuire, 502 U.S. 62, 67-68 (1991); Park v. California, 202 F.3d 1146, 1149 (9th Cir. 2000).

         Title 28 U.S.C. § 2254(d) sets forth the following standards for granting federal habeas corpus relief:

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.

Under § 2254(d)(1), “clearly established Federal law” consists of Supreme Court “precedents as of the time the state court renders its decision.” Greene v. Fisher, 565 U.S. 34, 38 (2011) (citation and emphasis omitted); Stanley v. Cullen, 633 F.3d 852, 859 (9th Cir. 2011) (citing Williams v. Taylor, 529 U.S. 362, 412 (2000)). Yet “circuit court precedent may be persuasive in determining what law is clearly established and whether a state court applied that law unreasonably.” Stanley, 633 F.3d at 859 (citation omitted). However, circuit court precedent may not be “used to refine or sharpen a general principle of Supreme Court jurisprudence into a specific legal rule that [the Supreme] Court has not announced.” Marshall v. Rodgers, 133 S.Ct. 1446, 1450 (2013) (per curiam) (citations omitted).

         Nor may it be used to “determine whether a particular rule of law is so widely accepted among the Federal Circuits that it would, if presented to [the Supreme] Court, be accepted as correct.” Id. at 1451 (citations omitted). Furthermore, if courts of appeals have “diverged widely” in their treatment of an issue, it cannot be said that “clearly established Federal law” governs that issue. Carey v. Musladin, 549 U.S. 70, 77 (2006).

         Under § 2254(d)(1), a state court decision is “contrary to” clearly established federal law if it applies a rule contradicting a holding of the Supreme Court or reaches a result different from Supreme Court precedent on “materially indistinguishable” facts. Price v. Vincent, 538 U.S. 634');">538 U.S. 634, 640 (2003) (citations omitted).

         Under § 2254(d)(1)'s “unreasonable application” clause, a federal habeas court may grant the writ if the state court identifies the correct governing legal principle from the Supreme Court's decisions, but unreasonably applies that principle to the facts of the prisoner's case. Lockyer v. Andrade, 538 U.S. 63, 75 (2003) (citation omitted); accord Chia v. Cambra, 360 F.3d 997, 1002 (9th Cir. 2004).

         A federal habeas court “may not issue the writ simply because that court concludes in its independent judgment that the relevant state-court decision applied clearly established federal law erroneously or incorrectly.” Williams, 529 U.S. at 411. “Rather, that application must also be unreasonable.” Id.; see also Schriro v. Landrigan, 550 U.S. 465, 473 (2007) (citation omitted) (“The question . . . is not whether a federal court believes the state court's determination was incorrect but whether that determination was unreasonable-a substantially higher threshold.”); Lockyer, 538 U.S. at 75 (citation omitted) (“It is not enough that a federal habeas court, in its independent review of the legal question, is left with a firm conviction that the state court was erroneous.”). Thus, “[a] state court's determination that a claim lacks merit precludes federal habeas relief so long as fairminded jurists could disagree on the correctness of the state court's decision.” Harrington v. Richter, 562 U.S. 86, 101 (2011) (citation omitted). In other words, “[a]s a condition for obtaining habeas corpus from a federal court, a state prisoner must show that the state court's ruling on the claim being presented in federal court was so lacking in justification that there was an error well understood and comprehended in existing law beyond any possibility for fairminded disagreement.” Id. at 103.

         If the state court's decision does not meet the criteria set forth in § 2254(d), a reviewing court must conduct a de novo review of a habeas petitioner's claims. Delgadillo v. Woodford, 527 F.3d 919, 925 (9th Cir. 2008); see also Frantz v. Hazey, 533 F.3d 724, 735 (9th Cir. 2008) (en banc) (“[I]t is now clear both that we may not grant habeas relief simply because of § 2254(d)(1) error and that, if there is such error, we must decide the habeas petition by considering de novo the constitutional issues raised.”).

         III. ANALYSIS

         A. Did the trial court commit prejudicial error when it overruled petitioner's objection to Officer Fernandez's testimony that Megan was in sustained fear of petitioner

         1. Petitioner's argument[4]

         Here, as in the Court of Appeal, petitioner “contends the trial court erred in admitting into evidence [Officer] Fernandez's testimony that Megan was in ‘sustained fear.'” Faulkner, 2014 WL 1678611, at *3. “He contends this testimony was improper opinion testimony.” Id. To support this contention, he notes that sustained fear is an element of the offense of criminal threats, i.e., “the requisite mental state of the victim.” Faulkner, 2014 WL 1678611, at *3; see also Cal. Penal Code § 422(a). Further, he contends that “police officers may not testify as to another person's state of mind.” Id. Thus, he concludes that “Fernandez's testimony was an [improper] opinion on the ultimate fact of [his] guilt.” Faulkner, 2014 WL 1678611, at *3; (see also ECF No. 1 at 8-10.) Consequently, in his assessment, “this erroneous admission of evidence going to a central element of the question of guilt or innocence was so prejudicial as to constitute a denial of due process.” (ECF No. 1 at 12.)

         2. Officer Fernandez's testimony

         At petitioner's trial, Officer Fernandez offered the following relevant testimony. The testimony pertained to “Megan's physical demeanor the night of the incident.” Faulkner, 2014 WL 1678611, at *3.

“[PROSECUTOR]: Can you tell us-tell the jury [Megan]'s physical demeanor when you first saw her that night?
“[FERNANDEZ]: Um, almost to the point of tears. She was definitely upset. Really worried about what the petitioner was-where he was, if we would locate ...

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