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Kelley v. Lizarraga

United States District Court, E.D. California

May 25, 2018

JOHN ALAN KELLEY, Petitioner,
v.
JOE A. LIZARRAGA, Respondent.

          FINDINGS AND RECOMMENDATIONS

          Gregory G. Hollows UNITED STATES MAGISTRATE JUDGE.

         Introduction & Procedural Background

         Petitioner, 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.

         Petitioner 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.

         Thereafter, 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).

         This instant federal habeas action was filed on May 20, 2016.[1] 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.

         Exhaustion

         Respondent 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.

         1. The Exhaustion Requirement

         28 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 curiam).

         2. Analysis

         Petitioner 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.

         Petitioner 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).[2]Accordingly, despite this lack of exhaustion the undersigned will address petitioner's application for habeas relief on the merits.

         AEDPA Standards

         The 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; or
(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.

         As a 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 basis).

         “The presumption may be overcome when there is reason to think some other explanation for the state court's decision is more likely.” Id.

         The 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).

         The 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).

         The 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 ...


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