United States District Court, E.D. California
FINDINGS AND RECOMMENDATIONS
Gregory G. Hollows UNITED STATES MAGISTRATE JUDGE.
& Procedural Background
a state prisoner proceeding pro se, has filed a petition for
writ of habeas corpus pursuant to 28 U.S.C. § 2254. The
matter was referred to the United States Magistrate Judge
pursuant to 28 U.S.C. § 636(b)(1) and Local Rule 302.
challenges a judgement and conviction entered against him on
July 2, 2014 in the Placer County Superior Court for a prison
sentence of 6 years. ECF No. 17-1 at 75 (Abstract of
Judgment). Petitioner pleaded nolo contendere to possession
of child pornography and received two one-year enhancements
for serving time in prison for a prior felony. Id.;
see also ECF No. 17-1 at 73. Petitioner appealed his
conviction to the California Court of Appeal, Third Appellate
District Court and the judgment was affirmed on May 28, 2015.
ECF Nos. 17-3 (Opening Brief), 17-5 (Opinion). Petitioner did
not seek review in the California Supreme Court.
petitioner filed four state habeas petitions. The first
petition was filed in Placer County Superior Court on April
23, 2015, and denied on July 23, 2015. ECF Nos. 17-6 at 1-5
(Opinion), 6-53 (Petition). The second petition was filed in
the California Court of Appeal, Third Appellate District
Court on September 17, 2015, and denied on October 1, 2015.
ECF Nos. 17-7 at 1 (Opinion), 2-141 (Petition). The third
petition was filed in the California Supreme Court on October
21, 2015, and denied on November 24, 2105. ECF Nos. 17-8 at 1
(Opinion), 3-21 (Petition). The fourth petition was again
filed in the California Supreme Court on February 18, 2016,
and denied on April 27, 2016. ECF Nos. 17-9 at 1 (Case
Docket), 2-32 (Petition).
instant federal habeas action was filed on May 20,
2016. On August 16, 2016, the undersigned issued
an order requiring petitioner to file and serve a motion for
stay and abeyance and include a statement indicating whether
he wishes to proceed with the original petition or the
amended petition for failure to exhaust all of his claims.
See ECF No. 6. On June 29, 2016, petitioner filed a
motion to amend his petition, including exhibits claiming he
had exhausted all state remedies. ECF No. 8. On August 16,
2016, the undersigned issued an order directing respondent to
file a response to the petition. ECF No. 12. Subsequently,
respondent filed an answer, ECF No. 18, and petitioner a
traverse, ECF No. 20.
asserts that all of petitioner's claims are unexhausted
and even if unexhausted can be denied on the merits pursuant
to 28 U.S.C. § 2254(b)(2). ECF No. 18 at 2 ¶3.
The Exhaustion Requirement
U.S.C. § 2254(b)(1) requires a state prisoner to exhaust
all available state remedies prior to presenting his federal
claims to the federal habeas court. This exhaustion
requirement serves two fundamental purposes: (1) it
“preserves the role of state courts in the application
and enforcement of federal law” by avoiding to
“isolate [state] courts from constitutional issues, and
thereby remov[ing] their understanding of and hospitality to
federally protected interest;” and (2) it
“preserves orderly administration of state judicial
business, preventing the interruption of state adjudication
by federal habeas proceedings.” Braden v. 30th
Judicial Circuit Court of Kentucky, 410 U.S. 484, 490
(1973) (internal quotation marks omitted). A petitioner
satisfies the exhaustion requirement by fairly presenting his
claims to the highest state court before presenting them to
the federal court. See Baldwin v. Reese, 541 U.S.
27, 29 (2004). “[A] a federal claim is fairly presented
if the petitioner has described the operative facts and legal
theory upon which his claim is based.” Duncan v.
Henry, 513 U.S. 364, 370 n. 1 (1995) (citation and
internal quotation marks omitted). Moreover, it does not
matter whether the state appellate court addressed or even
considered petitioner's federal constitutional claims, as
long as the petitioner presented the claims in his briefing
and thereby provided a fair opportunity for it to do so.
Smith v. Digmon, 434 U.S. 332, 333-34 (1978) (per
challenges his conviction for possession of child pornography
due to false evidence, ineffective assistance of counsel and
cruel and unusual punishment. ECF No. 1 at 4-8. In his first
claim, petitioner argues the photographs used to convict him
were downloaded from legitimate photographer's websites
and “are not pornographic in nature” as they are
legally published and available for purchase on the internet.
ECF No. 1 at 4-5. Secondly, petitioner argues his trial
counsel was ineffective for failing to provide mitigating or
exculpatory evidence or witnesses to prove the legal
possession and accessibility of the photographs. ECF No. 1 at
4, 6. Lastly, petitioner argues his six-year sentence amounts
to cruel and unusual punishment in view of the fact that the
photographs are protected by the first amendment and
therefore the possession of the photographs only amounts to a
one-year parole violation. ECF No. 1 at 7-8, 41.
argues his petitions for writ of habeas corpus with the
California Supreme Court meet the exhaustion requirement. ECF
No. 8 at 1. Upon review of the petitions filed with the
California Supreme Court, the undersigned finds that
petitioner's claims for false evidence and ineffective
assistance of counsel were fairly presented to the California
Supreme Court. See ECF No. 17-9 at 2-32. However,
petitioner's third claim for cruel and unusual punishment
was not presented to the state's highest court.
Id. Although federal courts may not adjudicate
petitions for habeas corpus containing both exhausted and
unexhausted claims, a federal court may adjudicate
unexhausted claims when they are plainly meritless.
See 28 U.S.C. § 2254(b)(2).Accordingly,
despite this lack of exhaustion the undersigned will address
petitioner's application for habeas relief on the merits.
statutory limitations of a federal courts' power to issue
habeas corpus relief for persons in state custody is provided
by 28 U.S.C. § 2254, as amended by the Antiterrorism and
Effective Death Penalty Act of 1996 (AEDPA). The text of
§ 2254 provides:
(d) 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;
(2) resulted in a decision that was based on an unreasonable
determination of facts in light of the evidence presented in
the State court proceeding.
preliminary matter, the Supreme Court has recently held and
reconfirmed “that § 2254(d) does not require a
state court to give reasons before its decision can be deemed
to have been ‘adjudicated on the merits.'”
Harrington v. Richter, 562 U.S. 86, 98 (2011).
Rather, “when a federal claim has been presented to a
state court adjudicated the claim on the merits in the
absence of any indication or state-law procedural principles
to the contrary.” Id. at 99 (citing Harris
v. Reed, 489 U.S. 255, 265 (1989)) (presumption of a
merits determination when it is unclear whether a decision
appearing to rest on federal grounds was decided on another
presumption may be overcome when there is reason to think
some other explanation for the state court's decision is
more likely.” Id.
Supreme Court has set forth the operative standard for
federal habeas review of state court decisions under AEDPA as
follows: “For purposes of § 2254(d)(1), ‘an
unreasonable application of federal law is different from an
incorrect application of federal law.'”
Harrington, supra, at 101, citing
Williams v. Taylor, 529 U.S. 362, 410 (2000).
“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.”
Id. at 101, citing Yarborough v. Alvarado,
541 U.S. 652, 664 (2004). Accordingly, “a habeas court
must determine what arguments or theories supported
or…could have supported the state court's
decision; and then it must ask whether it is possible
fairminded jurists could disagree that those arguments or
theories are inconsistent with the holding in a prior
decision of this Court.” Id. at 102.
“Evaluating whether a rule application was unreasonable
requires considering the rule's specificity. The more
general the rule, the more leeway courts have in reaching
outcomes in case-by-case determinations.” Id.
Emphasizing the stringency of this standard, which
“stops short of imposing a complete bar of federal
court relitigation of claims already rejected in state court
proceedings[, ]” the Supreme Court has cautioned that
“even a strong case for relief does not mean the state
court's contrary conclusion was unreasonable.”
Id., citing Lockyer v. Andrade, 538 U.S.
63, 75 (2003).
undersigned also finds that the same deference is paid to the
factual determinations of state courts. Under §
2254(d)(2), factual findings of the state courts are presumed
to be correct subject only to a review of the record which
demonstrates that the factual finding(s) “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.” It makes no sense to interpret
“unreasonable” in §2254(d)(2) in a manner
different from that same word as it appears in §
2254(d)(1) - i.e., the factual error must be so apparent that
“fairminded jurists” examining the same record
could not abide by the state court's factual
determination. A petitioner must show clearly and
convincingly that the factual determination is unreasonable.
See Rice v. Collins, 546 U.S. 333, 338 (2006).
habeas corpus petitioner bears the burden of demonstrating
the objectively unreasonable nature of the state court
decision in light of controlling Supreme Court authority.
Woodford v. Viscotti, 537 U.S. 19 (2002).
Specifically, the petitioner “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.”
Harrington, supra, at 102. “Clearly
established” law is law that has been “squarely
addressed” by the United States Supreme Court.
Wright v. Van Patten, 552 U.S. 120, 125 (2008).
Thus, extrapolations of settled law to unique situations will
not qualify as clearly established. See, e.g.,
Carey v. Musladin, 549 U.S. 70, 76 (2006)
(established law not permitting state sponsored practices to
inject bias into a criminal proceeding by compelling a
defendant to wear prison clothing or by unnecessary showing
of uniformed guards does not qualify as clearly established
law when spectators' conduct is ...