United States District Court, E.D. California
GERALD H. STOLP, Petitioner,
JOSIE GASTELO, 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.
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.
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
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.)
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.) The petition was denied on March 11,
2015. (LD 19.)
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).
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.
Court adopts the Statement of Facts in the Third DCA's
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
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
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.
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
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.
Legal Standard of Review
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.
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).
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.
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.
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).
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).
Review of Claims
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 ...