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Stolp v. Gastelo

United States District Court, E.D. California

March 28, 2018

GERALD H. STOLP, Petitioner,
v.
JOSIE GASTELO,[1] Warden, Respondent.

          FINDINGS AND RECOMMENDATION TO DENY PETITION FOR WRIT OF HABEAS CORPUS [TWENTY-ONE DAY OBJECTION DEADLINE]

          Jennifer L. Thurston UNITED STATES MAGISTRATE JUDGE.

         Petitioner is currently serving a 75-years-to-life sentence in state prison for his conviction of three counts of burglary. He has filed the instant habeas action challenging the conviction. As discussed below, the Court finds the claims to be without merit and recommends the petition be DENIED.

         I. PROCEDURAL HISTORY

         On November 16, 2011, Petitioner was found guilty in the Calaveras County Superior Court of three counts of first degree burglary (Cal. Penal Code § 459). (Doc. 1 at 1.[2]) The jury also found true allegations that he had suffered two prior serious or violent felony convictions under California's “Three Strikes” law. (Doc. 1 at 1.) On December 16, 2011, he was sentenced to an indeterminate term of 75-years-to-life. (Doc. 1 at 1.)

         Petitioner appealed to the California Court of Appeal, Third Appellate District (“Third DCA”). The Third DCA affirmed the judgment on January 5, 2015. People v. Stolp, 2015 WL 67037, at *1 (Cal.Ct.App. 2015). On February 6, 2015, Petitioner filed a petition for review in the California Supreme Court. (LD 18.[3]) The petition was denied on March 11, 2015. (LD 19.)

         Petitioner filed two petitions for writ of habeas corpus in the Calaveras County Superior Court relevant to the claims presented herein. On March 4, 2016, he filed the first one, and it was denied the same day. (LD 20, 21.) On August 16, 2016, he filed the second one, which was also denied the same day. (LD 22, 23.) On October 17, 2016, he filed a habeas petition in the Third DCA. (LD 24.) The appellate court denied the petition on October 28, 2016. (LD 25.) On March 3, 2017, he filed a habeas petition in the California Supreme Court. (LD 26.) The California Supreme Court denied the petition on April 12, 2017, with citation to In re Robbins, 18 Cal.4th 770, 780 (1998).

         On March 15, 2016, Petitioner filed the instant petition for writ of habeas corpus in this Court. (Doc. 1.) The Court stayed the petition pending exhaustion of state remedies. (Doc. 10.) After the stay was lifted, Respondent filed an answer on February 2, 2018. (Doc. 35.) Petitioner did not file a traverse.

         II. FACTUAL BACKGROUND

         The Court adopts the Statement of Facts in the Third DCA's unpublished decision[4]:

Several vacation homes in the Arnold area of Calaveras County were burglarized in late January or early February 2002. Defendant had lived in the area as a child. None of the victims knew defendant or gave him permission to enter their home.
On February 7, 2002, victim David Smith got a phone call from a neighbor saying Smith's home on Murphys Drive had been burglarized. The burglar entered Smith's home through a sliding glass door on the back deck. A rifle, shotgun, ammunition, hunting knives, and a pillowcase were missing. A shotgun had been discharged into a mattress. Smith had last been at the vacation home on January 21, 2002.
On February 11, 2002, Des Martinez received a phone call that her home on Stanislaus Drive had been burglarized. A window pane in the front door was broken, and items were missing. She had last been at the house around noon on February 3, 2002. The count involving Martinez was ultimately dismissed after the jury was unable to reach a verdict.
On February 13, 2002, Ronald Peterson learned his home had been burglarized when he went there after receiving a phone bill for calls he did not make, including several “900” numbers, between January 27 and February 3, 2002. He had last been at the house on January 21, 2002. He found the door kicked open. Inside was a mess, with food wrappers, clothing, alcohol bottles, and bullet casings lying around. There were bullet holes in the walls and a burnout spot in the linoleum. Items missing included knives, ammunition, a shotgun, silverware, televisions, VCR, speakers, and a microwave. Defendant's fingerprints were found on bottles and an armrest. Police also found a letter addressed to a Patty Miles, whose Subaru defendant admittedly stole on January 24, 2002. One of the phone calls made from Peterson's home was to defendant's friend Gary Rowe. Peterson's trash cans contained a February 2, 2002, grocery receipt from Big Trees Market; handwritten notes including several “900” numbers; and a receipt for a pizza ordered by “Jerry, ” defendant's nickname. Surveillance video from the market showed a person who looked like defendant buying the items listed on the receipt found in Peterson's home. A prosecution investigator gave a lay opinion that the handwriting was defendant's. Smith's knives, bag, ammunition, and Smith's shotgun were also found in the Peterson home.
On February 14, 2002, Robert Mugford learned his home had been burglarized when he went there after receiving a phone bill for $1, 800, including international calls and calls to 900 numbers, made between February 1st and 3rd, 2002. He found the door kicked in and a window broken. Mugford had last been at the house on January 15, 2002. Missing items included a lamp, clothing, most of the electronics, and a pillowcase. The pillowcase was later found in Peterson's home. DNA from four cigarette butts in Mugford's home matched defendant's DNA profile. Peterson's phone was found in Mugford's house.
The defense called as a witness defendant's friend and former cellmate, Joseph Solar. Defendant stayed at Solar's home for up to a week-and-a-half in January or February 2002, until they had an argument. Defendant later apologized and asked for help cashing a check.
Defendant testified he was paroled on a prior conviction on January 17, 2002. He stayed with Rowe in Grass Valley for a couple of days and then stayed with Solar until their fight. Defendant admitted he stole Miles's Subaru on January 24, 2002. He slept in the car for a few nights and then called Rowe for a place to stay. After talking to Rowe, defendant went to meet a man at a bar. The man led defendant to a house (Peterson's home). A woman was already inside. Defendant did not see any broken windows or doors. Defendant stayed there for three to five days until he obtained his final paycheck from a job he had before he went to prison. Other people came in and out of the house. Defendant did not recall using the house phone but may have. Defendant denied taking anything. He did not recall patronizing the market or restaurant but could not say for sure that he did not, and he acknowledged it looked like him in the market surveillance video. He did not think the handwriting on the papers looked like his handwriting.
Defendant denied ever being in the other victims' homes. He conceded cigarette butts with his DNA were found in the Mugford house but felt “[s]omebody else put them there.” Defendant said Solar helped him cash the paycheck. Defendant then visited Rowe. Rowe's girlfriend, a flight attendant, booked a plane ticket to Virginia for him.
Defendant testified his girlfriend in Virginia had wired him money for the ticket. He drove to the Reno airport, where he left Miles's car and caught his flight. He did not know what day this was but said he was “pretty sure” he was gone by February 2, 2002.
Pest control records indicated routine service to the Smith home on February 5, 2002. Pest control technician Louis Alexander testified he serviced the Smith house but had no independent recollection of that day. He did not recall seeing signs of a break-in, but generally he just sprayed the perimeter, sometimes from 30 feet away. Smith had testified there were closed vertical blinds covering the area of broken glass on the upper rear deck where the burglar entered. The upper deck sticks out over the hillside. Smith, who has taken over his own pest control, sprays under the deck where the house meets the ground but does not spray on top of the deck.
A defense handwriting expert opined the handwritten notes had more than one author and perhaps as many as four and were inconsistent with defendant's handwriting. The expert acknowledged some “6's” were consistent with defendant's handwriting, but said everyone's 6's have some similarity.
During deliberations, the jury sent a question to the court, stating it had reached a decision on three counts but wanted to know how to complete the verdict form on Count II (victim Martinez) because the jury was “split 11-1 on the Defendant's guilt. The one has no intention of changing their mind, as well as the 11 will not change.” The jury returned verdicts finding defendant guilty on three of the four burglary counts (victims Smith, Peterson, and Mugford). The jury found true a special allegation that the prosecution commenced within the three-year statute of limitations. The jury found true that defendant had prior convictions for first degree burglary in 1991 and 2001.
The court declared a mistrial on Count II (victim Martinez) and later dismissed it on the People's motion.
In December 2011, the trial court sentenced defendant to three consecutive terms of 25 years to life, for an aggregate term of 75 years to life.

Stolp, 2015 WL 67037, at *1-3.

         III. DISCUSSION

         A. Jurisdiction

         Relief by way of a petition for writ of habeas corpus extends to a person in custody pursuant to the judgment of a state court if the custody is in violation of the Constitution, laws, or treaties of the United States. 28 U.S.C. § 2254(a); 28 U.S.C. § 2241(c)(3); Williams v. Taylor, 529 U.S. 362, 375 n. 7 (2000). Petitioner asserts that he suffered violations of his rights as guaranteed by the United States Constitution. The challenged conviction arises out of the Calaveras County Superior Court, which is located within the jurisdiction of this court. 28 U.S.C § 2254(a); 28 U.S.C.§ 2241(d).

         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 after its enactment. Lindh v. Murphy, 521 U.S. 320 (1997) (holding the AEDPA only applicable to cases filed after statute's enactment). The instant petition was filed after the enactment of the AEDPA and is therefore governed by its provisions.

         B. Legal Standard of Review

         A petition for writ of habeas corpus under 28 U.S.C. § 2254(d) will not be granted unless the petitioner 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 412-413.

         A state court decision is “contrary to” clearly established federal law “if it applies a rule that contradicts the governing law set forth in [the Supreme Court's] cases, or “if it confronts a set of facts that is materially indistinguishable from a [Supreme Court] decision but reaches a different result.” Brown v. Payton, 544 U.S. 133, 141 (2005) (citing Williams, 529 U.S. at 405-406).

         In Harrington v. Richter, 562 U.S. 86, 101 (2011), the U.S. Supreme Court explained that an “unreasonable application” of federal law is an objective test that turns on “whether it is possible that fairminded jurists could disagree” that the state court decision meets the standards set forth in the AEDPA. The Supreme Court has “said time and again that ‘an unreasonable application of federal law is different from an incorrect application of federal law.'” Cullen v. Pinholster, 563 U.S. 170, 203 (2011). Thus, a state prisoner seeking a writ of habeas corpus from a federal court “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 of fairminded disagreement.” Harrington, 562 U.S. at 103.

         The second prong pertains to state court decisions based on factual findings. Davis v. Woodford, 384 F.3d 628, 637 (9th Cir. 2003) (citing Miller-El v. Cockrell, 537 U.S. 322 (2003)). Under § 2254(d)(2), a federal court may grant habeas relief if a state court's adjudication of the petitioner's claims “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.” Wiggins v. Smith, 539 U.S. 510, 520 (2003); Jeffries v. Wood, 114 F.3d 1484, 1500 (9th Cir. 1997). A state court's factual finding is unreasonable when it is “so clearly incorrect that it would not be debatable among reasonable jurists.” Jeffries, 114 F.3d at 1500; see Taylor v. Maddox, 366 F.3d 992, 999-1001 (9th Cir. 2004), cert.denied, Maddox v. Taylor, 543 U.S. 1038 (2004).

         To determine whether habeas relief is available under § 2254(d), the federal court looks to the last reasoned state court decision as the basis of the state court's decision. See Ylst v. Nunnemaker, 501 U.S. 979, 803 (1991); Robinson v. Ignacio, 360 F.3d 1044, 1055 (9th Cir. 2004). “[A]lthough we independently review the record, we still defer to the state court's ultimate decisions.” Pirtle v. Morgan, 313 F.3d 1160, 1167 (9th Cir. 2002).

         The prejudicial impact of any constitutional error is assessed by asking whether the error had “a substantial and injurious effect or influence in determining the jury's verdict.” Brecht v. Abrahamson, 507 U.S. 619, 623 (1993); see also Fry v. Pliler, 551 U.S. 112, 119-120 (2007) (holding that the Brecht standard applies whether or not the state court recognized the error and reviewed it for harmlessness).

         C. Review of Claims

         The petition presents the following four grounds for relief: 1) The eight-year delay between commission of the crimes and arraignment violated Petitioner's due process and speedy trial rights; 2) Appellate counsel rendered ineffective assistance by failing to raise a statute of limitations claim; 3) Petitioner's conviction violated both the state and federal statutes of limitations; and 4) The ...


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