United States District Court, N.D. California
ORDER DENYING PETITION FOR WRIT OF HABEAS
M. CHEN, UNITED STATES DISTRICT JUDGE
Germaine Hudson, a prisoner currently incarcerated at the
California State Prison-Solano, filed this pro se
petition for writ of habeas corpus pursuant to 28 U.S.C.
§ 2254. Mr. Hudson’s petition is now before the
Court for review on the merits. For the reasons discussed
below, the petition for writ of habeas corpus is
January 17, 2014, Lucio Sanchez was driving his pickup truck
in the northbound lane of Seventh Street in Richmond when he
was struck on the side by an SUV. Mr. Sanchez never saw the
SUV until it crossed into his lane and struck him from the
left. Reporter’s Transcript (“RT”) 302-304.
After hitting Mr. Sanchez’s car, the SUV reversed, then
drove forward, striking other cars. Mr. Sanchez observed Mr.
Hudson exit the vehicle, and later identified him to police
as the driver of the SUV. RT 308-313.
Wafer drove her mother-in-law, Martha Wilson, to Ms.
Wilson’s sister’s house on Seventh Street. RT
215, 240-41. Ms. Wafer parked by the curb, and Ms. Wilson
opened the door and began to exit. The car was struck on the
driver’s side headlight by a Cadillac Escalade,
knocking Ms. Wilson out of the vehicle. RT 216, 241-43. Ms.
Wilson fell on her face and hit the left side of her body on
the sidewalk. When Ms. Wafer observed Ms. Wilson after she
was thrown from the car, Ms. Wilson was face down and not
moving. RT 245. She was transported to the hospital where she
received stitches in her head. RT 218.
Green heard some loud crashes and, when she came outside to
see what happened, she observed that all the cars in front of
the house had been “smashed up,” and an Escalade,
with Mr. Hudson in the driver’s seat, had crashed next
door. RT 185-86, 187-89. After the Escalade backed up and
then drove forward, hitting Ms. Wafer’s car again, Ms.
Green banged on Mr. Hudson’s window and opened his SUV
door, yelling for him to stop. RT 190-92.
Officer Anthony Diaz arrived at the scene and observed the
Cadillac SUV with smoke coming from the hood, as well as
several parked cars with major damage. No one was in the SUV,
but a large crowd had gathered and informed Officer Diaz that
Mr. Hudson had fled and was in a rear yard area. RT 375-380.
Other police officers arrived, and Mr. Hudson was arrested.
RT 381-82. Mr. Hudson was placed in the police car, but later
the officers attempted to remove him from the police car and
an altercation ensued. RT 388-405. Mr. Hudson was taken to
the hospital where his blood was drawn. RT 255, 257. A
criminalist later testified that the result of the blood draw
showed Mr. Hudson had a blood alcohol content of 0.20
percent, a level at which anyone driving an automobile would
be impaired. RT 292, 296.
Hudson was charged in Contra Costa County Superior Court with
the following counts: (1) driving under the influence causing
injury (Cal. Veh. Code § 23153(a)); (2) driving with a
blood alcohol level of 0.08% causing injury (Cal. Veh. Code
§ 23153(b)); (3) leaving the scene of an accident with
injury (Cal. Veh. Code § 20001(a)/(b)(1)); (4) hit and
run driving (Cal. Veh. Code § 20002(a)); (5) resisting
an officer by force, violence or threats (Cal. Pen. Code
§ 69); (6) battery on a peace officer (Cal. Pen. Code
§ 242/243(b)); and (7) obstructing a peace officer (Cal.
Pen. Code § 148(a)(1)). Counts 1 and 2 also alleged that
Mr. Hudson personally inflicted great bodily injury,
see Cal. Pen. Code § 12022.7(a). It was also
alleged that Mr. Hudson had suffered two prior serious felony
strike convictions, see Cal. Pen. Code §§
667(a)(1); (b)-(i) and 1170.12. CT 260-266. The jury returned
guilty verdicts on counts 1 through 4, deadlocked on the
remaining counts, and found true the great bodily injury
allegations. CT 368-371, 381-386. The trial court found true
allegations that Mr. Hudson had suffered two prior serious
felony convictions. On July 31, 2015, the trial court
sentenced Mr. Hudson to a total term of 35 years to life in
state prison. CT 387; 432-439. The California Court of Appeal
affirmed the conviction. People v. Hudson, 2017 WL
1075430 (Cal.Ct.App. Mar. 22, 2017). The California Supreme
Court denied review. Docket No. 17-8.
Hudson then filed his federal habeas petition, where he
raised three claims: (1) that he received an illegal
sentencing enhancement; (2) that his right to counsel was
denied; and (3) that the trial court erroneously denied his
Marsden motion for new counsel. Because his first
claim was unexhausted, while his federal habeas petition was
pending, Mr. Hudson also filed a habeas petition before the
California Supreme Court to exhaust the first claim, which
was denied. Docket No. 17-9. He then filed an amended federal
habeas petition, Docket. No. 16, which is currently before
the Court. Mr. Hudson’s amended habeas petition raises
three claims: (1) that he lacked the requisite specific
intent necessary for a sentencing enhancement; (2) that he
was not competent to stand trial or to represent himself; and
(3) that his Sixth Amendment right to counsel was violated
when the trial judge denied his Marsden motion for
new counsel. Respondent filed an answer to the order to show
cause. Docket No. 17. Mr. Hudson filed a traverse, Docket No.
20, and an amended traverse, Docket No. 22. The Court has
considered both the traverse and the amended traverse.
JURISDICTION AND VENUE
Court has subject matter jurisdiction over this action for a
writ of habeas corpus under 28 U.S.C. § 2254. 28 U.S.C.
§ 1331. This action is in the proper venue because the
petition concerns the conviction and sentence of a person
convicted in Contra Costa County, California, which is within
this judicial district. 28 U.S.C. §§ 84, 2241(d).
STANDARD OF REVIEW
Court may entertain a petition for writ of habeas corpus
“in behalf of a person in custody pursuant to the
judgment of a State court only on the ground that he is in
custody in violation of the Constitution or laws or treaties
of the United States.” 28 U.S.C. § 2254(a).
Antiterrorism And Effective Death Penalty Act of 1996
(“AEDPA”) amended § 2254 to impose new
restrictions on federal habeas review. A petition may not be
granted with respect to any claim that was adjudicated on the
merits in state court unless the state court’s
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.” 28 U.S.C. § 2254(d).
the ‘contrary to’ clause, a federal habeas court
may grant the writ if the state court arrives at a conclusion
opposite to that reached by [the Supreme] Court on a question
of law or if the state court decides a case differently than
[the] Court has on a set of materially indistinguishable
facts.” Williams v. Taylor, 529 U.S. 362,
the ‘unreasonable application’ clause, a federal
habeas court may grant the writ if the state court identifies
the correct governing legal principle from [the Supreme]
Court’s decisions but unreasonably applies that
principle to the facts of the prisoner’s case.”
Id. at 413. “[A] federal habeas court may not
issue the writ simply because that court concludes in its
independent judgment that the relevant state-court decision
applied clearly established federal law erroneously or
incorrectly. Rather, that application must also be
unreasonable.” Id. at 411. “A federal
habeas court making the ‘unreasonable
application’ inquiry should ask whether the state
court’s application of clearly established federal law
was objectively unreasonable.” Id. at 409.
state-court decision to which § 2254(d) applies is the
“last reasoned decision” of the state court, if
there is a reasoned decision. See Ylst v.
Nunnemaker, 501 U.S. 797, 803-04 (1991). When confronted
with an unexplained decision from the last state court to
have been presented with the issue, “the federal court
should ‘look through’ the unexplained decision to
the last related state-court decision that does provide a
relevant rationale. It should then presume that the
unexplained decision adopted the same reasoning.”
Wilson v. Sellers, 138 S.Ct. 1188, 1192 (2018).
Sufficiency of the Evidence For Sentence Enhancement
in state custody who wish to challenge collaterally in
federal habeas proceedings either the fact or length of their
confinement are first required to exhaust state judicial
remedies, either on direct appeal or through collateral
proceedings, by presenting the highest state court available
with a fair opportunity to rule on the merits of each and
every claim they seek to raise in federal court. See
28 U.S.C. § 2254(b), (c); Rose v. Lundy, 455
U.S. 509, 515-16 (1982).
Hudson’s first claim is that his sentence should not
have been enhanced for causing great bodily injury because he
lacked the requisite specific intent. Amended Petition,
Docket No. 16 at 5. Respondent asserts that this claim has
not been exhausted and that it fails on the merits.
Previously Mr. Hudson conceded that the claim was not
exhausted because it was not presented in his state appellate
proceedings, but in the intervening time he filed a habeas
petition in state court to exhaust the claim. However, Mr.
Hudson’s state habeas petition did not include any
supporting documents, and the California Supreme Court denied
the habeas petition, with a citation to People v.
Duvall, 9 Cal.4th 464, 474 (Cal. 1995), including the
parenthetical that “a petition for a writ of habeas
corpus must include copies of reasonably available
documentary evidence.” Mr. Hudson’s specific
intent claim was raised only in his state habeas petition,
thus the last reasoned decision is the California Supreme
Court’s denial of his habeas petition.
California law, a denial of a habeas petition with a citation
to Duvall indicates that a petitioner has failed to
include copies of reasonably available documentary evidence,
a curable defect. It can be cured in a renewed state petition
that includes the documentary evidence, and state judicial
remedies are not exhausted in such a case. When the
California Supreme Court summarily denies a petition for writ
of habeas corpus with citations to both Duvall and
In re. Swain, 34 Cal.2d 300, 304 (Cal. 1949), the
decision is in effect, the grant of a demurrer. See
Curiel v. Miller, 830 F.3d 864, 869 (9th Cir. 2016).
Although the California Supreme Court did not cite
Swain, it did cite to Duvall. The court
thus dismissed the petition for failure to attach necessary
documents; this suggests Mr. Hudson could return to the
California Supreme Court with a new petition for writ of
habeas corpus with the necessary documents. Here, Mr. Hudson
could exhaust by filing a new habeas petition in the
California Supreme Court and attaching the necessary
supporting documents. The claim is therefore unexhausted.
district court may deny, but not grant, relief on a habeas
petition that presents an unexhausted claim. See 28
U.S.C. § 2254(b)(2). The district court can deny an
unexhausted claim on the merits if “it is perfectly
clear that the applicant does not raise even a colorable
federal claim.” Cassett v. Stewart, 406 F.3d
614, 623 (9th Cir. 2005) (citation omitted). Here, despite
Mr. Hudson’s failure to properly exhaust his claim
regarding specific intent, the Court will nevertheless deny
the claim on the merits.
The Claim Fails on The Merits
sentence enhancement violates due process if there is
insufficient evidence to support the enhancement. See
Jackson v. Virginia, 443 U.S. 307, 315, 321 (1979);
Garcia v. Carey, 395 F.3d 1099, 1102 (9th Cir. 2005)
(applying the Jackson standard to state sentence
enhancements). Mr. Hudson challenges the sentence enhancement
he received under California Penal Code Section 12022.7(a).
That section provides: “Any person who personally
inflicts great bodily injury on any person other than an
accomplice in the commission of a felony or attempted felony
shall be punished by an additional and consecutive term of
imprisonment in the state prison for three years.”
Under California law, section 12022.7(a) does not require a
showing of specific intent to inflict great bodily injury
(GBI). See People v. Poroj, 190 Cal.App.4th 165, 172
(Cal.Ct.App. 2010) (“[S]ection 12022.7, subdivision (a)
does not require a showing of intent to inflict GBI, either
general or specific. Rather, in order to have found the
enhancement allegations true in counts 2 and 3, the jury only
had to find defendant acted with general intent in committing
the underlying DUI felonies and personally inflicted
GBI on [the victim] in the commission of those
felonies.”); People v. Carter, 60
Cal.App.4th 752, 755-56 (Cal.Ct.App. 1998) (subdivision (a)
originally required the defendant to intend to inflict GBI,
but has since been amended to repeal the element of specific
intent to inflict GBI) (citing Stats. 1995, ch. 341
§ 1); Hodge v. Uribe, 2012 WL 6014666, at *11
(C.D. Cal. Nov. 25, 2012).
Hudson cites People v. Santos, 222 Cal.App.3d 723
(Cal.Ct.App. 1990), which held that section 12022.7 requires
specific intent to inflict great bodily injury. However,
Santos predates the 1995 amendments which removed
the specific intent requirement. Accordingly, it no longer
applies. See e.g. People v. Modiri, 39 Cal.4th 481,
501 n.11 (Cal. 2006) (noting that the California Legislature
long ago removed from section 12022.7(a) the requirement that
great bodily injury be personally inflicted “with the
intent to inflict the injury”) (citing Stats.1995, ch.
341, § 1, p. 1851); Poroj, 190 Cal.App.4th at
172; Carter, 60 Cal.App.4th at 755-56;
Hodge, 2012 WL 6014666 at *11.
courts must look to state courts for the definitions of the
substantive elements of state criminal offenses, and such
determinations are binding on federal courts. See
Bradshaw v. Rickey, 546 U.S. 74, 76 (2005) (per curiam)
(“We have repeatedly held that a state court’s
interpretation of state law, including one announced on
direct appeal of the challenged conviction, binds a federal
court sitting in habeas corpus”). Even a determination
of state law made by an intermediate appellate court must be
followed and may not be ‘“disregarded by a
federal court unless it is convinced by other persuasive data
that the highest court of the state would decide
otherwise.”’ Hicks v. Feiock, 485 U.S.
624, 630 n.3 (1988) (citation omitted).
Court is bound by the California Court of Appeal’s more
recent holding in Poroj that § 12022.7(a) does
not require specific intent to inflict great bodily injury
for a sentencing enhancement under that section.
Poroj, 190 Cal.App.4th at 172. Mr. Hudson’s
due process claim that he lacked the requisite specific
intent for a great bodily injury enhancement ...