United States District Court, E.D. California
FINDINGS AND RECOMMENDATIONS THAT COURT DISMISS
PETITION FOR WRIT OF HABEAS CORPUS AT SCREENING AND DENY
PETITIONER'S MOTIONS FOR STAY ECF NOS. 1, 2, 6 ORDER
DENYING ALL OTHER PENDING MOTIONS ECF NOS. 5, 8
Eugene Louis Jones, a state prisoner without counsel, seeks a
writ of habeas corpus under 28 U.S.C. § 2254. The matter
is before the court for preliminary review under Rule 4 of
the Rules Governing Section 2254 Cases. Under Rule 4, a
district court must dismiss a habeas petition if it
“plainly appears” that the petitioner is not
entitled to relief. Because petitioner fails to state a
cognizable habeas claim, we recommend that the court dismiss
the petition at screening and deny petitioner's request
to stay the case. Petitioner has filed other miscellaneous
motions that do not pertain to the merits of the case; we
will deny those motions.
allegedly abused his wife during their marriage of
thirty-three years, and his wife called the police in 2015
after an incident of physical assault. See People v.
Jones, No. F072438, 2017 WL 5507872 (Cal.Ct.App. Nov.
17, 2017). A jury eventually found petitioner guilty of four
offenses: (1) misdemeanor assault; (2) criminal threats; (3)
intimidating a witness by force or threat of force; and (4)
misdemeanor spousal battery. The trial court sentenced him to
twelve years and four months in prison. In this habeas
proceeding, petitioner challenges his sentence for the third
offense, intimidating a witness by force or threat of force.
California law, the crime of witness intimidation has several
variations, and the offense can be a misdemeanor or a felony,
depending on the circumstances. See People v.
Torres, 198 Cal.App.4th 1131, 1137 (2011) (discussing
Cal. Penal Code § 136.1). Under Penal Code Section
136.1(b), a “defendant who attempts to dissuade a
witness from reporting a crime is guilty of either a
misdemeanor or a felony.” People v. Anaya, 221
Cal.App.4th 252, 269 (2013). Under Section 136.1(c),
“if the defendant's attempt is accompanied by an
express or implied threat of force, the defendant is then
guilty of a felony with an increased term of
petitioner's case, he allegedly strangled his wife and
then attempted to dissuade her from reporting the abuse (a
misdemeanor) by threatening her with physical violence (a
felony). See generally People v. Jones, No. F072438,
2017 WL 5507872 (Cal.Ct.App. Nov. 17, 2017); People v.
Jones, No. 15CMS-1524 (Kings Cty. Sup. Ct. filed May 26,
2015); ECF No. 1 at 18, 20. The jury found that petitioner
had intimidated his wife with threat of force, and the state
trial court entered a judgment, indicating that petitioner
was guilty of a felony under Section 136.1(c). See
Jones, 2017 WL 5507872, at *1; ECF No. 1 at 25. The
trial court amended the abstract of judgment twice for
unidentified reasons, and the final abstract now indicates
that petitioner is guilty under Sections
“136.1(B)(1)/136.1(C)(1).” ECF No. 1 at 27.
Petitioner appealed, claiming that the jury had insufficient
evidence to find that he had threatened his wife with force.
See Jones, 2017 WL 5507872, at *1. The California
Court of Appeal, Fifth District (“Court of
Appeal”) affirmed. Petitioner did not seek further
contends that the state trial court erred by sentencing him
for dissuading a witness from reporting a crime with threat
of force-a felony-when the government alleged the threat of
force as a sentence enhancement rather than a separate
offense. The court should dismiss the petition at screening.
federal court may grant habeas relief when a petitioner shows
that his custody violates federal law. See 28 U.S.C.
§§ 2241(a), (c)(3), 2254(a); Williams v.
Taylor, 529 U.S. 362, 374-75 (2000). Section 2254 of
Title 28, as amended by the Antiterrorism and Effective Death
Penalty Act of 1996 (“AEDPA”), governs a state
prisoner's habeas petition. See § 2254;
Harrington v. Richter, 562 U.S. 86, 97 (2011);
Woodford v. Garceau, 538 U.S. 202, 206-08 (2003). In
a Section 2254 proceeding where the petitioner does not
challenge a state court's factual determination,
“habeas relief may be granted only if the state
court's adjudication resulted in a decision that was
contrary to, or involved an unreasonable application of,
Supreme Court precedent that was clearly established at the
time of the adjudication.” Pizzuto v. Blades,
No. 16-36082, 2019 WL 3807973, at *12 (9th Cir. Aug. 14,
2019) (internal alterations and citation omitted). Clearly
established Federal law “includes only the holdings, as
opposed to the dicta, of the Supreme Court's
decisions.” Id. at *11.
petitioner fails to state a cognizable habeas claim. It is
true that conflating a sentencing factor with other issues in
a criminal proceeding can result in constitutional
violations. For example, if the government's allegations
in the charging documents had failed to inform petitioner of
the nature of his offenses-i.e., that he attempted
to dissuade his wife from reporting a crime by threatening
her with force-such failure could have violated his right to
due process. See Rosen v. United States, 161 U.S.
29, 34 (1896). Likewise, petitioner could have stated a claim
if the error of conflating a separate offense with a
sentencing factor had relieved the government's burden to
prove “beyond a reasonable doubt of every fact
necessary to constitute the crime.” See Jackson v.
Virginia, 443 U.S. 307, 315 (1979). Similarly, any fact
that increased his punishment beyond the prescribed statutory
maximum-other than the fact of a prior conviction-required a
finding from a jury based on proof beyond a reasonable doubt.
See Apprendi v. New Jersey, 530 U.S. 466, 490
the principles discussed by these cases, which petitioner
cites, do not apply here. Petitioner does not deny that the
government alleged and proved that he used a threat of force
to dissuade his wife from reporting his domestic violence to
the police. He does not argue, as he did on direct appeal,
that the government had insufficient evidence to prove beyond
a reasonable doubt that he used threat of force. He similarly
does not dispute that the jury, not the judge, found the
pertinent facts. Instead, petitioner assumes-without
explanation-that the factual dispute litigated was a
sentencing enhancement, not a separate offense. This allegation
is not enough to state a cognizable habeas claim. He has not
identified any holding from the United States Supreme Court
that supports his claim, and we have found no such holding.
Thus, petitioner has not shown any violation of clearly
established federal law.
Petitioner's Motions for Stay
moves to stay the case pending the decision by the California
Supreme Court on his state habeas petition. ECF Nos. 2, 6.
Because petitioner has not stated a cognizable habeas claim,
the court should deny his motion to stay as moot.
moves for leave to proceed in forma pauperis. ECF No. 5. The
court has already granted him leave to do so. ECF No. 4.
Petitioner's motion ...