United States District Court, E.D. California
FINDINGS AND RECOMMENDATION THAT THE COURT DENY
PETITION FOR WRIT OF HABEAS CORPUS (DOC. 1)
K. OBERTO, UNITED STATES MAGISTRATE JUDGE
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
Procedural and Factual
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.
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.”
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.
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.
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).
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.
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.
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.
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.
Court of Appeal summarily denied the petition for writ of
habeas corpus on September 18, 2014.
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.
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,
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.
Standard of Review
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,
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;
(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.
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).
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).
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.
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.
Standard of Review for Procedural Default
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).
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
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.
Superior Court Opinion
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
[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).
(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.
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
State Court's Finding of Procedural Default Was