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Davis v. Spearman

United States District Court, E.D. California

February 16, 2018

DAMIEN LEE DAVIS, Petitioner,
v.
MARION SPEARMAN, Warden, High Desert State Prison Respondent.

          FINDINGS AND RECOMMENDATION THAT THE COURT DENY PETITION FOR WRIT OF HABEAS CORPUS (DOC. 1)

          SHEILA K. OBERTO, UNITED STATES MAGISTRATE JUDGE

         Petitioner, Damien Lee Davis, is a state prisoner proceeding pro se with a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254. In his petition, Petitioner presents three grounds for habeas relief: (1) judicial bias; (2) prosecutorial misconduct; and (3) ineffective assistance of counsel. The Court referred the matter to the Magistrate Judge pursuant to 28 U.S.C. § 636(b)(1) and Local Rules 302 and 304. Having reviewed the record and applicable law, the undersigned recommends that the Court deny habeas relief and decline to hold an evidentiary hearing on Petitioner's claims.

         I. Procedural and Factual Background[1]

         On the afternoon of April 20, 2010, Jose Christopher Lopez (“Lopez”) arrived at an apartment complex to pick up his girlfriend, Michelle Avery (“Avery”), and their two children. Avery's mother lived at the apartment complex and Avery and the children moved in with her in April, after Avery and Lopez had an argument.

         Petitioner was dating Avery's sister, Carmen Nicole Swayne (“Swayne”). Petitioner and Swayne lived in the same complex as Avery's mother, but in a different apartment. Petitioner and Lopez were casual acquaintances, and were dating the sisters, Avery and Swayne. Lopez knew that Petitioner wanted to beat him up because of an argument between Lopez and Avery that led to Avery moving in with her mother. Avery heard Petitioner state that he did not like Lopez and planned to “fight him.”

         After arriving at the apartment complex on April 20, 2010, Lopez encountered Petitioner. The two walked up to each other, Lopez stated, “Let's get it over with then, ” and the two began to fight. Petitioner stabbed Lopez twice in the upper torso with a folding knife that was three inches long and one inch wide. Lopez's girlfriend, Avery, intervened in the fight and pushed Petitioner away from Lopez. As he was pushed away, Petitioner commented, “I bet you won't hit her [Avery] again.” The fight only lasted two or three seconds. Lopez was then taken by ambulance to a hospital in Visalia. He was admitted for two days, and his wounds were drained and stitched up.

         At the hospital, Lopez identified Petitioner as the individual who had assaulted him. However, Petitioner told police that although he was involved in a physical confrontation with Lopez, Petitioner did not use a weapon to cut him. Instead, Petitioner claimed Lopez hit Swayne, Petitioner's girlfriend, and Swayne stabbed Lopez.

         Petitioner was charged with one count of assault with a deadly weapon, a box cutter, in violation of California Penal Code § 245(a)(1). It was further alleged that Petitioner inflicted great bodily injury (Cal. Penal Code § 12022.7(a)), and personally used a deadly and dangerous weapon (Cal. Penal Code § 12022(b)(1)). Petitioner had six prior convictions that qualified as strikes (Cal. Penal Code §§ 667(b)-(i); 1170.12).

         A jury found Petitioner guilty of assault with a deadly weapon and found true the allegations that Petitioner personally used a deadly weapon and personally inflicted great bodily injury in committing the offense. In a bifurcated proceeding on Petitioner's prior convictions, the court found true the allegation that Petitioner had suffered six prior felony convictions for assault with a firearm, each of which qualified as a strike. The court sentenced Petitioner to 47 years to life in prison.

         On September 14, 2012, Petitioner appealed his conviction to the California Court of Appeal, Fifth Appellate District. On appeal, Petitioner argued (1) there was insufficient evidence to support the finding that he had six strikes; and (2) the sentence imposed by the trial court was improperly calculated. On June 4, 2013, a panel of the Court of Appeal reversed the findings on two of the six strike allegations, because the parties agreed that two of the purported strikes were actually convictions for non-strike offenses. The Court of Appeal vacated Petitioner's sentence and remanded the matter for resentencing. The trial court resentenced Petitioner to a total term of 33 years to life in prison.

         Petitioner filed a petition for writ of habeas corpus with the Tulare County Superior Court on June 2, 2014. Petitioner raised five claims before the Superior Court: (1) prosecutorial misconduct; (2) judicial bias; (3) insufficiency of evidence; (4) violation of his Due Process Rights as to the designation of the investigating officer and discovery issues; and (5) ineffective assistance of counsel. The Superior Court denied his petition for writ of habeas corpus on June 17, 2014, because Petitioner did not assert his claims on direct appeal. On July 14, 2014, Petitioner filed his petition for writ of habeas corpus with the Court of Appeal.

         While his petition for habeas review was pending with the Court of Appeal, Petitioner filed his second direct appeal with the Court of Appeal on July 30, 2014. On his second direct appeal, Petitioner alleged (1) ineffective assistance of counsel; and (2) Petitioner's prior convictions were improperly counted to calculate his strikes.

         The Court of Appeal summarily denied the petition for writ of habeas corpus on September 18, 2014.

         Petitioner filed his petition for writ of habeas corpus with the California Supreme Court on November 12, 2014. The Supreme Court summarily denied the petition for writ of habeas corpus on January 21, 2015.

         On November 30, 2015, Petitioner filed his petition for writ of habeas corpus before this Court. Respondent filed a response on March 21, 2016, and Petitioner filed a Reply on June 20, 2016.

         On January 5, 2016, the Court of Appeal affirmed Petitioner's conviction. On February 17, 2016, Petitioner filed a Petition for Review with the California Supreme Court, which was summarily denied on March 23, 2016.

         II. Standard of Review

         A person in custody as a result of the judgment of a state court may secure relief through a petition for habeas corpus if the custody violates the Constitution or laws or treaties of the United States. 28 U.S.C. § 2254(a); Williams v. Taylor, 529 U.S. 362, 375 (2000). On April 24, 1996, Congress enacted the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"), which applies to all petitions for writ of habeas corpus filed thereafter. Lindh v. Murphy, 521 U.S. 320, 322-23 (1997). Under the statutory terms, the petition in this case is governed by AEDPA's provisions because it was filed after April 24, 1996.

         Habeas corpus is neither a substitute for a direct appeal nor a device for federal review of the merits of a guilty verdict rendered in state court. Jackson v. Virginia, 443 U.S. 307, 332 n. 5 (1979) (Stevens, J., concurring). Habeas corpus relief is intended to address only "extreme malfunctions" in state criminal justice proceedings. Id. Under AEDPA, a petitioner can obtain habeas corpus relief only if he can show that the state court's adjudication of his 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.

28 U.S.C. § 2254(d); Lockyer v. Andrade, 538 U.S. 63, 70-71 (2003); Williams, 529 U.S. at 413.

         "By its terms, § 2254(d) bars relitigation of any claim 'adjudicated on the merits' in state court, subject only to the exceptions set forth in §§ 2254(d)(1) and (d)(2)." Harrington v. Richter, 562 U.S. 86, 98 (2011).

         As a threshold matter, a federal court must first determine what constitutes "clearly established Federal law, as determined by the Supreme Court of the United States." Lockyer, 538 U.S. at 71. In doing so, the Court must look to the holdings, as opposed to the dicta, of the Supreme Court's decisions at the time of the relevant state-court decision. Id. The court must then consider whether the state court's decision was "contrary to, or involved an unreasonable application of, clearly established Federal law." Id. at 72. The state court need not have cited clearly established Supreme Court precedent; it is sufficient that neither the reasoning nor the result of the state court contradicts it. Early v. Packer, 537 U.S. 3, 8 (2002). The federal court must apply the presumption that state courts know and follow the law. Woodford v. Visciotti, 537 U.S. 19, 24 (2002). Petitioner has the burden of establishing that the decision of the state court is contrary to, or involved an unreasonable application of, United States Supreme Court precedent. Baylor v. Estelle, 94 F.3d 1321, 1325 (9th Cir. 1996).

         "A federal habeas court may not issue the writ simply because the court concludes in its independent judgment that the relevant state-court decision applied clearly established federal law erroneously or incorrectly." Lockyer, 538 U.S. at 75-76. "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, 562 U.S. at 101 (quoting Yarborough v. Alvarado, 541 U.S. 652, 664 (2004)). Thus, the AEDPA standard is difficult to satisfy since even a strong case for relief does not demonstrate that the state court's determination was unreasonable. Harrington, 562 U.S. at 102.

         III. Procedural Default

         Petitioner's first two grounds for habeas relief are: (1) judicial bias; and (2) prosecutorial misconduct. The Superior Court determined these claims were procedurally defaulted, because Petitioner first raised these claims in his petition for writ of habeas corpus, instead of on direct review.

         A. Standard of Review for Procedural Default

         A federal court cannot review claims in a petition for writ of habeas corpus if a state court denied relief on the claims based on state law procedural grounds that are independent of federal law and adequate to support the judgment. Coleman v. Thompson, 501 U.S. 722, 750 (1991). “A district court properly refuses to reach the merits of a habeas petition if the petitioner has defaulted on the particular state's procedural requirements.” Park v. California, 202 F.3d 1146, 1150 (2000).

         A petitioner procedurally defaults his claim if he fails to comply with a state procedural rule or fails to raise his claim at the state level. Peterson v. Lampert, 319 F.3d 1153, 1156 (9th Cir. 2003) (citing O'Sullivan v. Boerckel, 562 U.S. 838, 844-45 (1999)). The procedural default doctrine applies when a state court determination of default is based in state law that is both adequate to support he judgment and independent of federal law. Ylst v. Nunnemaker, 501 U.S. 797, 801 (1991). An adequate rule is one that is "firmly established and regularly followed." Id. (quoting Ford v. Georgia, 498 U.S. 411, 423-24 (1991)); Bennett v. Mueller, 322 F.3d 573, 583 (9th Cir. 2003). An independent rule is one that is not "interwoven with federal law." Park, 202 F.3d 1146 at 1152 (quoting Michigan v. Long, 463 U.S. 1032, 1040-41 (1983)).

         When a state prisoner has defaulted on his federal claim in state court pursuant to an independent and adequate state procedural rule, federal habeas review of the claim is barred, unless the prisoner can demonstrate “cause” for the default and “actual prejudice” as a result of the alleged violation of federal law, or demonstrate that failure to consider the claims will result in a fundamental miscarriage of justice. Coleman, 501 U.S. at 750.

         B. Superior Court Opinion

         In his habeas petition before the Superior Court, Petitioner raised five claims: (1) prosecutorial misconduct; (2) judicial bias; (3) insufficiency of evidence; (4) violation of his Due Process Rights as to the designation of the investigating officer and discovery issues; and (5) ineffective assistance of counsel. (Lodged Doc. 31).

The Superior Court denied the first four claims, finding that Petitioner
[f]ailed to assert [the] claims on direct appeal and has not demonstrated an exception to the general rule that a court will dismiss a habeas petition if it alleges an issue that could have been, but was not raised on direct appeal. (In re Harris (1993) 5 Cal.4th 813, 829).[2]

(Lodged Doc. 32 at 2). In other words, Petitioner failed to exhaust his claims on direct appeal and therefore could not raise them in a petition for writ of habeas corpus.

         Here, the Superior Court's decision is the one reasoned state court decision that addresses Petitioner's habeas claims; therefore the court will “look[ ] through” the summary denial by the California Supreme Court to the Superior Court decision and presume the Supreme Court's decision “rest[s] upon the same ground.” Ylst, 501 U.S. at 803. Additionally, as here, where “the last reasoned opinion on the claim explicitly imposes a procedural default, we will presume that a later decision rejecting the claim did not silently disregard that bar.” Id.

         C. State Court's Finding of Procedural Default Was ...


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