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Rood v. Swarthout

United States District Court, E.D. California

June 25, 2019

RICHARD VINCENT ROOD, Petitioner,
v.
GARY SWARTHOUT, Respondent.

          ORDER AND FINDINGS AND RECOMMENDATIONS

          ALLISON CLAIRE UNITED STATES MAGISTRATE JUDGE

         Petitioner is a California state prisoner proceeding pro se with an application for writ of habeas corpus pursuant to 28 U.S.C. § 2254. The action proceeds on the first amended petition filed on March 30, 2015, ECF No. 45, which presents four claims challenging petitioner's 2010 conviction and sentence for first degree residential burglary. Respondent filed a first amended answer, ECF No. 63, and petitioner filed a traverse, ECF No. 65.

         BACKGROUND

         Preliminary Proceedings

         Petitioner was originally charged with two counts of first degree residential burglary in violation of California Penal Code section 459 in two separate criminal complaints filed in Shasta County on September 15, 2009 (case number 09-06719) and October 9, 2009 (case number 09- 07628). 1 CT 1, 5.[1] The September 15, 2009 complaint charged petitioner with burglarizing the residence of Sadie and Ladel Redinger (“Redinger residence”) on September 12, 2009. 1 CT 1. The October 9, 2009 complaint charged petitioner with burglarizing the residence of John and Julie Fotopoulos and David and Emily Phelps (“Fotopoulos residence”) on September 9, 2009. 1 CT 5. Both complaints alleged that petitioner had two prior convictions for serious felonies that qualified as “strikes” under California law, and that he served a prior prison term under which a sentence enhancement could be imposed pursuant to California Penal Code Section 667.5(b).

         On November 4, 2009, the prosecution moved to consolidate the two cases for trial. 1 CT 16-20. On November 30, 2009, petitioner's counsel opposed the motion orally in court; and later filed a written opposition on December 3, 2009. 1 CT 22-29. On December 7, 2009, the trial court denied the motion to consolidate without prejudice.[2] 1 CT 30. The prosecution renewed its motion to consolidate on May 3, 2010, which the trial court granted on May 20, 2010. 1 CT 55- 60, 96-98.

         On May 20, 2010, the prosecution filed a consolidated information charging petitioner with two counts of first degree residential burglary in violation of California Penal Code section 459. 1 CT 81-83. Count one charged petitioner with the burglary of the Fotopoulos residence on September 9, 2009 and count two charged petitioner with the burglary of the Redinger residence on September 12, 2009. 1 CT 81-82. The consolidated information also alleged petitioner's two prior convictions for serious felonies that qualified as “strikes, ” and his prior prison term under which a sentence enhancement could be imposed. Id. Petitioner's two prior strikes were both for first degree burglary, the first occurring in 1992 and the second in 1997. Id. Prior to trial, both parties stipulated that the prior conviction and prison term allegations would be bifurcated from the jury trial on the charged crimes. 1 CT 79.

         Trial

         Trial commenced on May 18, 2010. The prosecution presented the following evidence regarding the Redinger burglary. On September 12, 2009 at approximately 10:00 a.m., 15-year old Sadie Redinger (“Sadie”) was watching television in her living room when she heard a knock on the front door, followed by a series of banging noises. She looked out the window and saw an unfamiliar truck and someone she did not know. As Sadie was going to the front door to lock it the doorknob started to jiggle. She then ran to the office where she shut and locked the door. Sadie heard someone come after her and it sounded like someone ran into the house and ran around inside. Sadie heard the person take off back down the hallway. At that point, Sadie called her mother, Ladel Redinger (“Ladel”), and told her there is someone in the house. While waiting for her mother to come home, Sadie hid behind a black filing cabinet in the office and heard footsteps in the house.

         Once Ladel arrived home, Sadie came out of the office and saw Ladel standing in the kitchen door screaming at a man in her backyard. Both Sadie and Ladel noticed the sliding back door to the house was open and testified that it is never open because the family has two cats and two dogs that are not supposed to be together. Ladel told the man that she called the police and he responded that he was not waiting around and got into his truck and left. Ladel got in her car and pursued the man in her vehicle but was unable to successfully chase him.

         A couple of hours later, Ladel and Sadie were eating in their kitchen and saw the same truck drive by their house. Ladel again got in her vehicle and pursued the truck. Ladel was able to contact the police and provide a partial license plate and description of the truck before the driver of the vehicle got away again.

         Police apprehended petitioner, and Sadie and Ladel were taken to a location to identify a possible suspect. The detective who escorted Sadie and Ladel read the following directions to them:

You will be asked to look at one or more individuals. The fact that the individuals are being shown to you should not influence your judgment. You should not conclude or guess that the field show up contains the person who committed the crime. You are not obligated to identify anyone. It is just as important to free innocent persons from suspicion as to identify guilty parties. Please do not discuss the field show up with any other witnesses nor indicate in any way that you have identified anybody.

RT 180.[3]

         Sadie identified petitioner as the man she saw at her front door; and both Sadie and Ladel identified petitioner as the man they saw in their backyard.

         During the trial, Sadie identified petitioner in court as the man she saw in her house on September 12, 2009. She also identified petitioner's truck as the truck she saw in front of her house on September 12, 2009. Sadie testified that during the in-field lineup she was not influenced in any manner by the fact that petitioner may or may not have been in custody, she identified petitioner from her own independent recollection as being the person that was in her house, and there was nothing that was said or done that influenced her identification of petitioner. Similarly, Ladel identified petitioner during trial as the man she saw in her back yard. She was asked if there was any doubt in her mind that petitioner was the person that was in her house on September 12, 2009 and she testified, “There is no doubt at all.” RT 178.

         The prosecution presented the following evidence regarding the Fotopoulos burglary. On the morning of September 9, 2009, John Fotopoulos (“John”) observed a silver truck on his street while walking his dogs with his wife, Julie Fotopoulos (“Julie”). Approximately twelve to fifteen minutes later he saw the silver truck again pulling into his nephew's driveway, which was near his house. The driver of the truck told John that he was lost and drove away. John identified petitioner as the person driving the truck. After seeing the truck drive off, Julie received a phone call about someone begin in their house. David Phelps (“David”), John's stepson, testified that he was home at the time John and Julie left to walk the dogs. David testified that he was sleeping and woke to his dog barking. When he opened his bedroom door he saw the blur of a person running by and saw a person moving near his front door. When the intruder saw David, he said that he had the wrong house and left. David went to the front porch and saw the person get into a truck. David went back into the house and woke his sister who called John and Julie. David identified petitioner as the intruder during the trial.

         On June 1, 2010, the jury found petitioner guilty of first degree burglary at the Redinger residence (count two). RT 312-313. However, the jury could not reach a verdict on count one involving the Fotopoulos residence, and the court declared a mistrial as to that count. RT 308- 312. One June 3, 2010, the district attorney agreed to dismiss count one after petitioner agreed it could be considered at his sentencing hearing.[4] RT 319-322. On July 20, 2010, petitioner filed an “Invitation for Court to Dismiss Prior Convictions Under the Three Strikes Law Pursuant to Penal Code Section 1385, ” also known as a Romero motion, [5] which the court subsequently denied. 2 CT 437-441; RT 325-349.

         On August 27, 2010, the court sentenced petitioner to 25 years to life due to his two prior strikes. RT 349. It then imposed two five-year enhancements for each prior serious felony conviction and a one-year enhancement for the prior prison term, resulting in a total sentence of 36 years to life in state prison. Id.

         Post-Conviction Proceedings

         On November 15, 2010, petitioner filed a timely appeal with the California Court of Appeal, Third Appellate District. Lodged Doc. 1. On appeal, petitioner argued that (1) the trial court erroneously imposed a one-year enhancement for a prison term, and (2) the trial court abused its discretion when it denied petitioner's motion to dismiss at least one of his prior “strikes” under California law. Id. On March 29, 2011, the California Court of Appeal affirmed the judgment of conviction and the sentence on petitioner's prior two “strike” convictions, but found that the prior prison term enhancement imposed pursuant to California Penal Code Section 667.5(b) should be stricken, reducing petitioner's sentence from 36 years to life to 35 years to life. Lodged Doc. 4. On April 11, 2011, petitioner appealed to the California Supreme Court on the question of the trial court's alleged abuse of discretion in failing to dismiss at least one of his prior strikes. Lodged Doc. 5. On June 8, 2011, the California Supreme Court summarily denied review. Lodged Doc. 6.

         On May 31, 2012, petitioner filed a petition for writ of habeas corpus in the California Supreme Court.[6] Lodged Doc. 8.[7] Petitioner alleged ineffective assistance of both his trial and appellate counsel. Id. at 3. On August 8, 2012, the California Supreme Court denied the petition with citations to People v. Duvall, 9 Cal.4th 464, 474 (1995) and In re Swain, 34 Cal. 2d 300');">34 Cal. 2d 300, 304 (1949).[8] Lodged Doc. 7.

         On May 14, 2014, petitioner filed a habeas corpus petition in the Shasta County Superior Court, alleging that (1) his federal due process rights to a fair trial were violated because the trial judge did not disclose that her husband was employed as a detective with the same agency that arrested petitioner, (2) the trial court abused its discretion in “sentencing petitioner to life” under California's “three strikes law” and counted a “non-valid strike” conviction as a prior strike, and (3) trial counsel provided ineffective assistance by failing to argue the 1992 conviction was not a strikable offense and by failing to “explore immutable physical impairments which could have vendicated [sic] petitioner.” Lodged Doc. 9. On June 13, 2014, the Shasta County Superior Court denied this petition in a three-page order. Lodged Doc. 10.

         On August 8, 2014, petitioner filed a habeas corpus petition with the California Court of Appeal raising the same claims of a violation of due process based on the trial judge's alleged conflict of interest, the trial court's abuse of discretion and use of a “non-valid strike” conviction, and ineffective assistance of trial counsel. Lodged Doc. 11. Petitioner added a fourth claim of ineffective assistance of appellate counsel. Id. On August 14, 2014, the California Court of Appel summarily denied this third petition. Lodged Doc. 12.

         On October 29, 2014, petitioner filed another habeas corpus petition in the California Supreme Court. Petitioner re-alleged his claims of judicial bias and violation of due process due to the judge's alleged conflict of interest, ineffective assistance of trial and appellate counsel, and added a claim based on an alleged improperly suggestive “in-field” lineup in violation of his Fifth and Sixth Amendment rights. Lodged Doc. 13. On January 14, 2015, the California Supreme Court denied this final state petition with citation to In re Clark, 5 Cal.4th 750, 767-69 (1993).[9]Lodged Doc. 14.

         On May 31, 2012, by operation of the prison mailbox rule, petitioner filed a petition for habeas corpus in this court.[10] ECF No. 1. On October 18, 2012, respondent answered. ECF No. 15. On April 24, 2013, in his traverse, petitioner requested a stay under Rhines v. Weber, 544 U.S. 269 (2005) to exhaust his claim of judicial bias and pursue post-conviction remedies in state court under Proposition 36. ECF No. 24. On March 30, 2015, after the court granted the stay (ECF No. 29), petitioner filed his First Amended Petition. ECF No. 45. On August 21, 2015, respondent filed a first amended answer, ECF No. 63, and on September 17, 2015, petitioner filed his traverse, ECF. No. 65.

         STANDARDS GOVERNING HABEAS RELIEF UNDER THE AEDPA

         28 U.S.C. § 2254, as amended by the Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”), provides in relevant part as follows:

(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 the facts in light of the evidence presented in the State court proceeding.

         The statute applies whenever the state court has denied a federal claim on its merits, whether or not the state court explained its reasons. Harrington v. Richter, 562 U.S. 86, 99 (2011). State court rejection of a federal claim will be presumed to have been on the merits absent 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. at 99.

         The phrase “clearly established Federal law” in § 2254(d)(1) refers to the “governing legal principle or principles” previously articulated by the Supreme Court. Lockyer v. Andrade, 538 U.S. 63, 71-72 (2003). Only Supreme Court precedent may constitute “clearly established Federal law, ” but courts may look to circuit law “to ascertain whether . . . the particular point ...


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