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Case 2:10-cv-03336-LKK-AC Document 30 Filed 07/30/13 Page 1 of 21













UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF CALIFORNIA

SCOTT RANDELL GILBERT,

No. 2:10-cv-3336 LKK AC P

Petitioner,



v.

FINDINGS & RECOMMENDATIONS

MIKE McDONALD, Warden

Respondent.





Petitioner is a California state prisoner proceeding pro se under 28 U.S.C. § 2254. In

2007, he was convicted by a Butte County jury of two counts of kidnapping with use of a deadly

weapon, for which he was sentenced to serve 31 years to life under California’s “three strikes”

statute. In the pending petition filed on January 10, 2011, petitioner asserts seven grounds for
relief.1 See ECF No. 4. Respondent’s answer (ECF No. 22) and petitioner’s traverse (ECF No.
28) are also before the court. Respondent concedes exhaustion on Claims One through Four, but

asserts that Claims Five, Six and Seven remain unexhausted or, in the alternative, are

procedurally barred. Because petitioner’s Claims Five, Six and Seven are clearly without merit


1 Petitioner’s grounds for relief are numbered one two, three, four, four, five and six, with two
separate grounds designated ground four. For purposes of this report, petitioner’s grounds for
relief have been consecutively redesignated Claims One through Seven and are referred to
accordingly.






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Case 2:10-cv-03336-LKK-AC Document 30 Filed 07/30/13 Page 2 of 21

and because petitioner fails to present a colorable federal claim, it will be recommended that the

petition be denied on the merits.

I.

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.







Section 2254(d) constitutes a “constraint on the power of a federal habeas court to grant a

state prisoner’s application for a writ of habeas corpus.” Williams v. Taylor, 529 U.S. 362, 412

(2000). It does not, however, “imply abandonment or abdication of judicial review,” or “by

definition preclude relief.” Miller-El v. Cockrell, 537 U.S. 322, 340 (2003). If either prong

(d)(1) or (d)(2) is satisfied, the federal court may grant relief based on a de novo finding of

constitutional error. See Frantz v. Hazey, 533 F.3d 724, 736 (9th Cir. 2008) (en banc).

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, 131 S. Ct. 770, 785

(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 784−785 (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 785.

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






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U.S. 63, 71−72 (2003). Clearly established federal law also includes “the legal principles and

standards flowing from precedent.” Bradley v. Duncan, 315 F.3d 1091, 1101 (9th Cir. 2002)

(quoting Taylor v. Withrow, 288 F.3d 846, 852 (6th Cir. 2002)). Only Supreme Court precedent

may constitute “clearly established Federal law,” but circuit law has persuasive value regarding

what law is “clearly established” and what constitutes “unreasonable application” of that law.

Duchaime v. Ducharme, 200 F.3d 597, 600 (9th Cir. 2000); Robinson v. Ignacio, 360 F.3d 1044,

1057 (9th Cir. 2004).

A state court decision is “contrary to” clearly established federal law if the decision

“contradicts the governing law set forth in [the Supreme Court’s] cases.” Williams, 529 U.S. at

405. This includes use of the wrong legal rule or analytical framework. “The addition, deletion,

or alteration of a factor in a test established by the Supreme Court also constitutes a failure to

apply controlling Supreme Court law under the ‘contrary to’ clause of the AEDPA.” Benn v.

Lambert, 283 F.3d 1040, 1051 n.5 (9th Cir. 2002).



A state court decision “unreasonably applies” federal law “if the state court identifies the

correct rule from [the Supreme Court’s] cases but unreasonably applies it to the facts of the

particular state prisoner’s case.” Williams, 529 U.S. at 407−08. It is not enough that the state

court was incorrect in the view of the federal habeas court; the state court decision must be

objectively unreasonable. Wiggins v. Smith, 539 U.S. 510, 520−21 (2003). This does not mean,

however, that the § (d)(1) exception is limited to applications of federal law that “reasonable

jurists would all agree is unreasonable.” Williams, 529 U.S. at 409 (rejecting Fourth Circuit’s

overly restrictive interpretation of “unreasonable application” clause). State court decisions can

be objectively unreasonable when they interpret Supreme Court precedent too restrictively, when

they fail to give appropriate consideration and weight to the full body of available evidence, and

when they proceed on the basis of factual error. See, e.g., Williams, 529 U.S. at 397−98;

Wiggins, 539 U.S. at 526−28 & 534; Rompilla v. Beard, 545 U.S. 374, 388−909 (2005); Porter v.

McCollum, 558 U.S. 30, 42 (2009).



The “unreasonable application” clause permits habeas relief based on the application of a

governing principle to a set of facts different from those of the case in which the principle was






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announced. Lockyer, 538 U.S. at 76. AEDPA does not require a nearly identical fact pattern

before a legal rule must be applied. Panetti v. Quarterman, 551 U.S. 930, 953 (2007). Even a

general standard may be applied in an unreasonable manner. Id. In such cases, AEDPA

deference does not apply to the federal court’s adjudication of the claim. Id. at 948.



Where the state court’s adjudication is set forth in a reasoned opinion, § 2254(d)(1) review

is confined to “the state court’s actual reasoning” and “actual analysis.” Frantz, 533 F.3d at 738

(emphasis in original). A different rule applies where the state court rejects claims summarily,

without a reasoned opinion. In Richter, supra, the Supreme Court held that when a state court

denies a claim on the merits but without a reasoned opinion, the federal habeas court must

determine what arguments or theories may have supported the state court’s decision, and subject

those arguments or theories to § 2254(d) scrutiny. Richter, 131 S. Ct. at 786.



Relief is also available under AEDPA where the state court predicates its adjudication of a

claim on an unreasonable factual determination. Section 2254(d)(2). The statute explicitly limits

this inquiry to the evidence that was before the state court. Even factual determinations that are

generally accorded heightened deference, such as credibility findings, are subject to scrutiny for

objective reasonableness under § 2254(d)(2). See, e.g., Miller-El v. Dretke, 545 U.S. 231, 240

(2005) (rejecting credibility finding as unreasonable in light of the evidence before the state

court).



To prevail, a habeas petitioner must establish the applicability of one of the § 2254(d)

exceptions and also must also affirmatively establish the constitutional invalidity of his custody

under pre-AEDPA standards. Frantz v. Hazey, 533 F.3d 724 (9th Cir. 2008) (en banc). There is

no single prescribed order in which these two inquiries must be conducted. Id. at 736−37. The

AEDPA does not require the federal habeas court to adopt any one methodology. Lockyer v.

Andrade, 538 U.S. 63, 71 (2003).

II.

FACTUAL AND PROCEDURAL BACKGROUND



Petitioner was charged by information in the Butte County Superior Court with two

counts of kidnapping in violation of California Penal Code § 207(a), with a special allegation as

to each count that he personally used a deadly weapon (see Cal. Pen. Code § 12022(b)(1)). The






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Case 2:10-cv-03336-LKK-AC Document 30 Filed 07/30/13 Page 5 of 21

information also alleged that petitioner had incurred two prior convictions, each qualifying as a

prior serious felony (Cal. Penal Code § 667(a)(1)) and a “strike” under California’s Three Strikes

statute (Cal. Penal Code §§ 667, 1170.12).



At trial, the prosecution presented evidence establishing the following facts. Petitioner

met Susan (“Suzie”) Thompson in Chico shortly after his release from prison. Three days later,

he pulled a knife on Thompson’s boyfriend Wade Stafford and forced him to call Thompson and

arrange for her to pick them up. After she picked them up, petitioner let her go back to her trailer

to get her purse. He then pulled out a knife and ordered her to drive to Redding on Interstate 5.

Thompson eventually answered a cell phone call and told Stafford’s mother they had been

kidnapped. Petitioner allowed Thompson to drive back to Chico, and he was arrested near

Thompson’s trailer.



The jury found petitioner guilty of both kidnapping charges and found the deadly weapon

enhancements true. Petitioner waived jury trial on the prior convictions. The court found the

strikes and serious felony prior allegations to be true. On March 25, 2008, petitioner was

sentenced to an aggregate term of 31 years to life.



On appeal, petitioner challenged the trial court’s finding that his two prior assault

convictions both qualified as prior serious felonies within the meaning of the state’s three strikes

law. On October 13, 2009, the California Court of Appeal, Third District, affirmed the

convictions and sentence, rejecting petitioner’s claim of error at the court trial on the prior strikes.

Presented with the same claim, the California Supreme Court denied a petition for review.



Petitioner presented additional grounds for relief on state habeas corpus. The Butte

County Superior Court and the California Court Appeal denied his state habeas petitions on

March 26, 2010 and May 6, 2010, respectively. Petitioner filed a petition to the California

Supreme Court on July 16, 2010; that petition was denied on February 16, 2011. Thus, although

petitioner’s state habeas petition was still pending in the California Supreme Court when he filed

his federal petition on January 10, 2011, it has since been denied.

////

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III.

CLAIMS ONE, TWO AND THREE: PRIOR ASSAULT CONVICTIONS
A. Petitioner’s Allegations



Claims One, Two and Three of the pending petition each challenge the trial court’s

finding that petitioner’s two prior assault convictions were for assault with a deadly weapon, a

serious felony within the meaning of the state’s three strikes law. In Claim One, petitioner

requests the court to review “the circumstances in which prior conviction under Penal Code §

245, subdivision (a)(1) may be deemed as assault w/a deadly weapon (ADW), as opposed to the

non-strike offense of assault by means likely to produce (GBI). When the court documents make
reference to both crimes [sic].” ECF No. 4 at 4.2 In Claim Two, petitioner alleges the trial court
committed reversible error and violated his Fourteenth Amendment due process rights by finding

that his prior convictions were for assault with a deadly weapon. Id. In Claim Three, petitioner

asserts there was insufficient evidence to support the trial court’s finding that the prior

convictions were for assault with a deadly weapon. Id. at 5.

B. The Clearly Established Federal Law Governing Claims One through Three



Federal habeas relief is generally unavailable for an alleged error in the interpretation or

application of state sentencing laws by a state trial court or appellate court. See Bradshaw v.

Richey, 546 U.S. 74, 76 (2005) (“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.”) (citing Estelle v. McGuire, 502 U.S. 62, 67 (1991)); Richmond v.

Lewis, 506 U.S. 40, 50 (1992) (holding that the question to be decided by a federal court on

habeas corpus is not whether the state committed state-law error, but rather, whether the state

court’s action was “so arbitrary and capricious” as to constitute an independent violation of the

federal constitution). “State courts are the ultimate expositors of state law,” and a federal habeas

court is bound by the state’s construction except when it appears that its interpretation is an

obvious subterfuge to evade the consideration of a federal issue.” Mullaney v. Wilbur, 421 U.S.

684, 691 (1975).


2 The court references the page numbers assigned by the court’s CM-ECF system to the petition.






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Case 2:10-cv-03336-LKK-AC Document 30 Filed 07/30/13 Page 7 of 21



Sufficient evidence supports a conviction if, “after viewing the evidence in the light most

favorable to the prosecution, any rational trier of fact could have found the essential elements of

the crime beyond a reasonable doubt.” Jackson v. Virginia, 443 U.S. 307, 319 (1979); see also

McDaniel v. Brown, 558 U.S. 120, 130−31 (2010); United States v. Okafor, 285 F.3d 842,

847−48 (9th Cir. 2002) (applying the clearly established Jackson standard to review whether

sufficient evidence supported the fact of a prior conviction). Sufficiency of the evidence claims

raised in habeas proceedings are reviewed “with explicit reference to the substantive elements of

the criminal offense as defined by state law.” Jackson, 443 U.S. at 324, n.16. In determining

whether sufficient evidence supports a conviction, a federal court is bound by “a state court’s

interpretation of state law.” Richey, 546 U.S. at 76.

C. The State Court’s Adjudication



Claims One, Two and Three were exhausted by presentation to the California Supreme

Court in the petition for review filed November 20, 2009. See Lodg. Doc. 6 at 3 [Claim One], 7-

10 [Claim Two], 11-23 [Claim Three]. Because the California Supreme Court denied the petition

for review summarily and without a reasoned decision (see Lodg. Doc. 7), the prior decision of

the California Court of Appeal is the last reasoned state court decision applicable to these claims.

See Ylst v. Nunnemaker, 501 U.S. 797, 806 (1991) (explaining that a federal habeas court

generally “looks through” the unreasoned decision of a state’s highest court to the last reasoned

state court decision on the merits, if any). Presented with the allegations contained in petitioner’s

Claims One, Two, and Three, the California Court of Appeal discussed the relevant facts and

analyzed the issues as follows:

Defendant’s sole contention is the evidence does not support the
trial court’s finding that his two 1992 convictions for assault in
violation of section 245, subdivision (a)(1) both qualify as prior
serious felonies within the meaning of the Three Strikes law.

At the trial on the strike allegations, the People introduced a copy of
the information filed in Butte County in 1992 charging defendant in
count 1 as follows: “On or about June 5, 1992, in the above named
Judicial District, the crime of ASSAULT GREAT BODILY
INJURY AND WITH DEADLY WEAPON, in violation of
PENAL CODE SECTION 245,(a)(1), a Felony, was committed by






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[defendant], who did willfully and unlawfully commit an assault
upon [the victim] with a deadly weapon, to wit, a tree branch, and
by means of force likely to produce great bodily injury.” In count
2, defendant was charged with the same crime in the same
language, but with a different victim. The complaint also alleged
great bodily injury (§ 12022.7) and hate crime (§ 422.75)
enhancements for both counts.

The next item of evidence was the change of plea form. The form
shows defendant entered a no contest plea to two counts of
violating section 245, subdivision
the hate crime
enhancement in count 1, and counts in other cases, in exchange for
dismissing the remaining charges. The plea form included an
advisement initialed by defendant that he could be subject to
“SERIOUS FELONY PRIOR/PRISON PRIOR” as a consequence
of the plea. Defendant also initialed a HarveyFN2 waiver as part of
the plea form.

(a)(1),



FN2. People v. Harvey (1979) 25 Cal.3d 754.

The minute order for sentencing on the prior assault convictions
was also introduced. It describes the two assault counts as “Assault
GBI w/DW.” The trial court imposed an upper term for both
counts, with the minute order listing the following aggravating
factors: “injuries, serious injuries with deadly weapon, crimes of
violence, serious danger to public, on Court probation at time of
incidents, prior performance unsatisfactory.”

The abstract of judgment for the prior offenses described the two
assault convictions as “Assault GBI w/DW” with upper terms for
both counts. Finally,
the record of
defendant’s prison commitment for the prior assault convictions.

the People

introduced

The court sustained the strike allegations, finding the two prior
convictions were for assault with a deadly weapon and therefore
serious felonies and strikes under section 1192, subdivision (c)(31).

Defendant argues the charging document, plea agreement abstract
of judgment, and the description of the offenses in the minutes are
ambiguous as to whether the assault convictions were for assault
with a deadly weapon or assault by means likely to produce a great
bodily injury. He also asserts the rule of Apprendi v. New Jersey
(2000) 530 U.S. 466, 490 [147 L.Ed.2d 435, 455] (Apprendi) and
California law preclude consideration of the sentencing factors used
by the previous court to impose the upper term. We disagree.

A prior conviction counts as a strike if it is listed as a serious felony
under section 1192.7, subdivision (c). “[A]ssault with a deadly

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weapon ... in violation of Section 245” counts as a serious felony
for this purpose, without regard to whether the defendant personally
used the deadly weapon. (§ 1192.7, subd. (c)(31); People v. Luna
(2003) 113 Cal.App.4th 395, 398, disapproved on other grounds in
People v. Delgado (2008) 43 Cal.4th 1059, 1070, fn. 4.) The other
part of section 245, subdivision (a)(1), assault “by any means of
force likely to produce great bodily injury,” does not count as a
serious felony unless it also involves the use of a deadly weapon or
results in the personal infliction of great bodily injury. (People v.
Banuelos (2005) 130 Cal.App.4th 601, 605 (Banuelos).)

In a court trial of a prior, the trial court may look to the entire
record of conviction to determine the nature of the prior offense.
(People v. Rodriguez (1998) 17 Cal.4th 253, 261-262; People v.
Guerrero (1988) 44 Cal.3d 343, 355-356.) In doing so, the court
may look to the charging instrument so far as it shows the
allegations the defendant subsequently admitted by plea. (People v.
Reed (1996) 13 Cal.4th 217, 224; People v. Guerrero, supra, 44
Cal.3d at pp. 345, 356.)

The information in the prior case charged in both counts that
defendant committed “ASSAULT GREAT BODILY INJURY
AND WITH DEADLY WEAPON, in violation of PENAL CODE
SECTION 245,(a)(1)” against his victims “with a deadly weapon,
to wit, a tree branch, and by means of force likely to produce great
bodily injury.” The use of the conjunctive in an information
charging a violation of section 245, subdivision (a)(1), when the
statute uses the disjunctive in defining the crime, has been found to
charge “only the single act of assault with a deadly weapon.”
(People v. Flynn (1995) 31 Cal.App.4th 1387, 1394.) “In such
instance the phrase ‘by means of force likely to produce great
bodily injury’ simply describes the manner in which the weapon is
used and serves to explain why it thereby constitutes a deadly
weapon.” (Ibid.) Defendant pled no contest to both counts. As
stated in People v. Hayes (1992) 6 Cal.App.4th 616, 623: “[W]here
a defendant enters a guilty plea constituting his voluntary admission
he committed the acts alleged in the indictment, such plea
unequivocally establishes the particular elements alleged were both
raised and resolved.” (Original italics; accord, People v. Davis
(1996) 42 Cal.App.4th 806, 814.)

Defendant argues to the contrary, citing Banuelos, supra, 130
Cal.App.4th 60. Banuelos held that a guilty plea to an offense
described in the abstract of judgment and a fingerprint card as
“‘ASSAULT GBI W/DEADLY WEAPON or “‘CT1 PC245(A)(1)
ASSLT GRT BDLY INJ W/DDLY WPN’” was not proved to be a
serious felony because “[t]hese documents are completely silent on
the question of whether appellant personally used a deadly weapon

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or personally inflicted great bodily injury....” (Banuelos, supra, 130
Cal.App.4th at p. 605, original italics.) The Court of Appeal in
Banuelos reasoned that the documents’ reference to both aspects of
section 245, subdivision (a)(1), was inherently ambiguous and
could not be taken to prove that the defendant committed the form
of assault covered by the Three Strikes law. (Banuelos, supra, at pp.
606-607.) However, Banuelos is distinguishable; so far as the
opinion shows, the prosecution did not proffer the information, plea
form, and minutes, as in our case, but only the abstract of judgment
and fingerprint card. (Id. at p. 606.)

Nor do we accept defendant’s contention that his plea is only an
admission to the least serious form of the offense. It is true that “if
the prior conviction was for an offense that can be committed in
multiple ways, and the record of the conviction does not disclose
how the offense was committed, a court must presume the
conviction was for
the offense.
[Citations.]” (People v. Miles (2008) 43 Cal.4th 1074, 1083.) This
presumption is inapplicable because the information establishes
defendant’s prior convictions were for assault with a deadly
weapon.

least serious form of

the

The sentencing minutes also supports [sic] the courts finding. The
aggravating factors used by the prior trial court in imposing the
upper term for the assaults, specifically, that the assaults involved
serious injuries with a deadly weapon, is further proof that
defendant was convicted of assault with a deadly weapon.

We reject defendant’s contention that the rule of Apprendi
precludes consideration of the prior court’s statement of reasons for
imposing the upper term. Apprendi, which was decided long after
defendant’s prior convictions, did not apply to his upper term
sentences for the assault counts. (See In re Consiglio (2005) 128
Cal.App.4th 511, 515-516 [Apprendi does not apply retroactively to
cases that are already final]; Curtis v. United States (7th Cir. 2002)
294 F.3d 841, 842 [unanimous rule that Apprendi does not apply
retroactively on federal habeas corpus].) Nor did the trial on the
strike allegations violate Apprendi; defendant waived his right to a
jury trial on the strikes and the court’s findings on the strike
allegations applied the beyond a reasonable doubt standard.

Although the aggravating factors in the prior conviction were found
under a preponderance standard, this does not preclude the present
trial court from using them as evidence of the nature of defendant’s
prior convictions. This was not, as defendant contends, an improper
use of collateral estoppel, but simply one piece of evidence relied
on by the trial court. While it is possible the previous trial court
relied on
the aggravating

the probation report

in finding

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Case 2:10-cv-03336-LKK-AC Document 30 Filed 07/30/13 Page 11 of 21

circumstance, the present court did not, relying only on the record
of the prior conviction-the information, the plea form, the minutes,
and the abstract. Defendant’s reliance on People v. Reed, supra, 13
Cal.4th at pages 230-231, which involved the use of a probation
report in determining the nature of a prior conviction, is misplaced.

We conclude the court’s strike findings are supported by substantial
evidence.

Lodg. Doc. 5 at 2-8.

D. Discussion of Claims One, Two and Three



Petitioner’s Claim One, requesting this court to review the proper application of the state

sentencing statute, explicitly requests review of a state law question and does not present a

cognizable federal claim. Petitioner’s Claim Two, though couched in due process terms, merely

asserts the same alleged errors in the application of California law. Since the state appellate

court’s decision rejecting these claims did not amount to a subterfuge to avoid federal review of a

constitutional violation, both Claims One and Two fail to present a cognizable federal claim. See

Swarthout v. Cooke, 131 S.Ct. 859, 863 (2011) (“[A] ‘mere error of state law’ is not a denial of

due process.”) (quoting Engle v. Isaac, 456 U.S. 107, 121, n.21 (1982)); Miller v. Vasquez, 868

F.2d 1116, 1118−19 (9th Cir. 1989) (declining to address the petitioner’s claim on the merits

because “whether assault with a deadly weapon qualifies as a ‘serious felony’ under California’s

sentence enhancement provisions is a question of state sentencing law” for which federal habeas

relief is unavailable (quoting Middleton v. Cupp, 768 F.2d 1083, 1085 (9th Cir. 1985)); Patel v.

Hartley, No. CV 11-08523-R (SH) 2012 WL 2805020, at *7 (C.D. Cal. June 15, 2012)

(“[P]etitioner’s sentencing error claim [that the trial court erred in finding that petitioner’s 1992

conviction qualified as a ‘strike’ under California’s ‘Three Strikes Law’] solely involves the

interpretation and/or application of a state sentencing law and, as such, is not cognizable on

federal habeas review.”). For these reasons, Claims One and Two of the pending petition should

be denied.



Claim Three should also be denied. The state court’s on-the-merits rejection of

petitioner’s sufficiency of the evidence claim is entitled to deference under AEDPA. See Juan H.






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v. Allen, 408 F.3d 1262, 1274 (9th Cir. 2005) (holding that a federal habeas petitioner’s Jackson

claim is subject to deferential review under AEDPA). Although the state court did not expressly

cite Jackson in rejecting petitioner’s claim, the state court’s analysis was consistent with, and a

reasonable application of, the Jackson standard. See Hurtado v. Tucker, 245 F.3d 7, 13, 15 (1st

Cir. 2001) (holding that the state court applied the proper Jackson standard although not citing it);

see also People v. Johnson, 26 Cal.3d 557, 575−78 (1980) (explaining that a state-law sufficiency

of the evidence review in California expressly follows the Jackson standard).



At petitioner’s court trial on the prior convictions, the prosecution had to prove that his

two prior assault convictions were for assault with a deadly weapon. Among the evidence

introduced by the prosecution at the court trial was the information charging him with two counts

of “ASSAULT GREAT BODILY INJURY AND WITH DEADLY WEAPON,” the minute order

for sentencing describing the two assault convictions as “Assault GBI w/DW,” and the abstract of

judgment describing the two assault convictions as “Assault GBI w/DW.” Lodg. Doc. 5 at 3.



Petitioner argues here, as he did in state court, that these documents were ambiguous as to

whether the assault convictions were for assault with a deadly weapon or for assault by means

likely to produce a great bodily injury. In reviewing a claim of sufficiency of the evidence, if the

trier of fact could have drawn conflicting inferences from the evidence, a reviewing court assigns

the inference that favors conviction. McMillan v. Gomez, 19 F.3d 465, 469 (9th Cir. 1994). In

addition, this court is bound by the state court’s interpretation of state law that:

The use of the conjunctive in an information charging a violation of
section 245, subdivision (a)(1), when
the
disjunctive in defining the crime, has been found to charge “only
the single act of assault with a deadly weapon.” (People v. Flynn
(1995) 31 Cal.App.4th 1387, 1394.) “In such instance the phrase
‘by means of force likely to produce great bodily injury’ simply
describes the manner in which the weapon is used and serves to
explain why it thereby constitutes a deadly weapon.” (Ibid.)

the statute uses

Lodg. Doc. at 5−6.



In rejecting petitioner’s sufficiency of the evidence claim, the state appellate court

properly viewed the evidence in the light most favorable to the state court judgment and

considered all reasonable inferences in support of that judgment in accordance with the Jackson






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standard. The state court then reasonably found that “substantial evidence” supported a finding

that the assault convictions were for assault with a deadly weapon. Rejection of the claim on this

basis was consistent with, and a reasonable application of the Jackson standard, which requires

that any rational trier of fact could have found true beyond a reasonable doubt that petitioner’s

prior assault convictions were for assault with a deadly weapon. See Jackson, 443 U.S. at 319.

IV.

CLAIM FOUR: DOUBLE JEOPARDY



In Claim Four, petitioner contends the Double Jeopardy Clause of the Fifth Amendment

would prohibit a retrial on his prior convictions in the event that this court found insufficient

evidence to sustain the imposition of the strikes. ECF No. 4 at 5. Petitioner exhausted this claim

by presenting the same allegation to the California Supreme Court in his petition for review.

Lodg. Doc. 6 at 24−28. The intermediate court of appeal, in the last reasoned state court decision

applicable to this claim , found that the trial court’s strike findings were supported by substantial

evidence and failed to reach the double jeopardy issue. See Lodg. Doc. 5.



Here as in state court, petitioner’s double jeopardy claim is stated conditionally. Because

petitioner’s challenges to the strike findings fail for the reasons previously explained, Claim Four

presents no basis for discussion or relief.

V.

CLAIMS FIVE, SIX AND SEVEN: EXHAUSTION AND PROCEDURAL BAR



Although petitioner presented the allegations contained in Claims Five, Six and Seven to

the California Supreme Court in his petition for writ of habeas corpus (Lodg. Doc. 12 at 3−4),

respondent contends these grounds remain unexhausted because they were not presented with

sufficient particularity. ECF No. 22 at 13−15. In the alternative, respondent contends these

grounds are procedurally barred. Id. at 15−18. In yet another alternative, respondent contends

the court may exercise discretion to deny these grounds on the merits. Id. at 18.



It is axiomatic that petitioner can proceed in this court only upon exhausted claims.

Exhaustion of state court remedies is a prerequisite to the granting of a petition for writ of habeas

corpus. 28 U.S.C. § 2254(b)(1). If exhaustion is to be waived, it must be waived explicitly by

respondent’s counsel. 28 U.S.C. § 2254(b)(3). A waiver of exhaustion may not be implied or

inferred. The United States Supreme Court has held that a federal district court may not entertain






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a petition for habeas corpus unless the petitioner has exhausted state remedies with respect to

each of the claims raised. Rose v. Lundy, 455 U.S. 509 (1982). A petitioner satisfies the

exhaustion requirement by providing the highest state court with a full and fair opportunity to

consider all claims before presenting them to the federal court. O’Sullivan v. Boerckel, 526 U.S.

838, 844–45 (1999) (citing Picard v. Connor, 404 U.S. 270, 275–276 (1971)); Ybarra v.

McDaniel, 656 F.3d 984, 991 (9th Cir. 2011), cert. denied, 132 S.Ct. 1904 (2012); Middleton v.

Cupp, 768 F.2d 1083, 1086 (9th Cir.), cert. denied, 478 U.S. 1021 (1986). Regardless, a district

court may deny an unexhausted claim on the merits notwithstanding a petitioner’s failure to

exhaust. 28 U.S.C. § 2254(b)(2); Cassett v. Stewart, 406 F.3d 614, 624 (9th Cir. 2005) (holding

that an unexhausted petition may be denied on the merits when it is perfectly clear that the

applicant does not raise even a colorable federal claim).



In addition, as a general rule, a federal habeas court “will not review a question of federal

law decided by a state court if the decision of that court rests on a state law ground that is

independent of the federal question and adequate to support the judgment.” Calderon v. United

States District Court (Bean), 96 F.3d 1126, 1129 (9th Cir.1996) (quoting Coleman v. Thompson,

501 U.S. 722, 729 (1991)). In order for a state procedural rule to be found independent, the state

law basis for the decision must not be interwoven with federal law. LaCrosse v. Kernan, 244

F.3d 702, 704 (9th Cir. 2001). To be deemed adequate, the rule must be well established and

consistently applied. Poland v. Stewart, 169 F.3d 575, 577 (9th Cir.1999). An exception to the

general rule exists if the prisoner can demonstrate either cause for the default and actual prejudice

as a result of the alleged violation of federal law, or that failure to consider the claims will result

in a fundamental miscarriage of justice. Coleman, 501 U.S. at 750.



Here, the California Supreme Court’s order denying the petition reads: “The petition for

writ of habeas corpus is denied. (See People v. Duvall (1995) 9 Cal.4th 464, 474; In re Swain

(1949) 34 Cal.2d 300, 304; In re Dixon (1953) 41 Cal.2d 756, 759.)” Lodg. Doc. 13.



California’s Dixon rule “bars California state courts from granting habeas relief to a

prisoner who failed to pursue the claims raised in his habeas petition on direct appeal from his

conviction, unless his claims fall within an exception to the rule.” La Crosse, 244 F.3d at 705 n.






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11 (quoting In re Dixon, 41 Cal.2d 756 (1953)). In Duvall, at the cited page, the California

Supreme Court held that a habeas corpus petitioner must “state fully and with particularity the

facts on which relief is sought,” and must “include copies of reasonably available documentary

evidence supporting the claim.” Duvall, 9 Cal.4th at 474. Citations to both In re Swain and In re

Duvall indicate that the California Supreme Court denied one or more claims in the petition

because it was not alleged with sufficient particularity. See Kim v. Villalobos, 799 F.2d 1317,

1319 (9th Cir. 1986).



The state court’s order did not specify which rule was being applied to which of

petitioner’s claims. Accordingly, despite the asserted procedural bar, judicial economy weighs in

favor of reviewing petitioner’s Claims Five, Six and Seven on the merits. See Lambrix v.

Singletary, 520 U.S. 518, 522−25 (holding that a federal court need not invariably resolve a state

procedural bar issue first where it presents complicated issues of state law and the other issue is

easily resolvable against the petitioner); Franklin v. Johnson, 290 F.3d 1223, 1232 (9th Cir. 2002)

(“Procedural bar issues are not infrequently more complex than the merits issues presented by the

appeal, so it may well make sense in some instances to proceed to the merits if the result will be

the same”). Likewise in regard to the exhaustion issue, because petitioner fails to present even a

colorable federal claim, this court should deny the petition on the merits. 28 U.S.C. § 2254(b)(2);

Cassett, 406 F.3d at 624.



Because the California Supreme Court did not reach the merits of these claims, de novo

review applies. See Stanley v. Cullen, 633 F.3d 852, 860 (9th Cir. 2011) (“When it is clear… that

the state court has not decided an issue, we review that question de novo.”); Cone v. Bell, 556

U.S. 449, 472 (2009). Respondent contends that merits review should involve application of

AEDPA standards to the decision of the California Court of Appeal (Lodg. Doc. 11), which

expressly rejected petitioner’s claims “on the merits” without further elaboration. Respondent

cites no authority, however, for the proposition that a federal court should “look through” a higher

court’s procedural denial of a habeas claim to a lower court’s merits denial. Because the

California Supreme Court stated its reasons – procedural reasons – for rejecting the claims, the

undersigned finds that there was no “unexplained” denial that would support application of the






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“look-through” presumption. See Ylst, 501 U.S. at 806. Accordingly, this court should review

Claims Five, Six and Seven de novo. In any event, if a claim fails under de novo standard of

review, it would also fail under AEDPA’s more deferential standard. See Berghuis v.

Thompkins, 130 S.Ct. 2250, 2264 (2010).

VI. MERITS OF CLAIMS FIVE AND SIX: INEFFECTIVE ASSISTANCE

A. Petitioner’s Allegations



In Claim Five, petitioner claims trial counsel failed to “investigate independently/ This

effected [sic] the outcome of the trial and deprived this Petitioner’s right to a proper defense at

Trial.” ECF No. 4 at 7. Petitioner alleges that trial counsel failed to have an investigator check

out “anything [petitioner] asked him to,” “[n]ever checked the rules of Police Procedure,” and

“[n]ever pressed the court for a request for medical examination, expert witnesses (medical

doctor) was denied.” Id. In Claim Six, petitioner alleges that counsel failed to impeach perjured

testimony given by victims Suzie Thompson and Wade Stafford. ECF No. 4 at 8.

B. The Clearly Established Federal Law Governing the Claims



To establish a constitutional violation based on ineffective assistance of counsel, a

petitioner must show (1) that counsel’s representation fell below an objective standard of

reasonableness, and (2) that counsel’s deficient performance prejudiced the defense. Strickland v.

Washington, 466 U.S. 668, 692, 694 (1984). In evaluating counsel’s performance, the court

applies a strong presumption that counsel’s representation fell within the wide range of

reasonable professional assistance. Strickland, 466 U.S. at 689. Prejudice means that the error

actually had an adverse effect on the defense. There must be a reasonable probability that, but for

counsel’s errors, the result of the proceeding would have been different. Id. at 693–94. A

reasonable probability is a probability sufficient to undermine confidence in the outcome. Id. A

reviewing court need not address both prongs of the Strickland test if the petitioner’s showing is

insufficient as to one prong. Strickland, 466 U.S. 668 at 697. “If it is easier to dispose of an

ineffectiveness claim on the ground of lack of sufficient prejudice, which we expect will often be

so, that course should be followed.” Id. at 689.

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C. Discussion



Petitioner’s allegations in support of Claim Five are conclusory, and fail to support either

the performance prong or the prejudice prong of Strickland. Petitioner does not allege what

additional investigation should have been conducted, what information would have been

obtained, what rules of police procedure should have been “checked,” or what kind of medical

exam or expert witnesses counsel should have pursued. On this basis, Claim Five should be

denied. See James v. Borg, 24 F.3d 20, 26 (9th Cir. 1994) (“Conclusory allegations of

ineffective assistance which are unsupported by a statement of specific facts do not warrant

habeas relief.”) (citing Boehme v. Maxwell, 423 F.2d 1056, 1058 (9th Cir. 1970)); see also, e.g.,

Grisby v. Blodgett, 130 F.3d 365, 373 (9th Cir. 1997) (“Speculation about what an expert could

have said is not enough to establish prejudice.”); Hendricks v. Calderon, 70 F.3d 1032, 1042

(1995) (“Absent an account of what beneficial evidence investigation into any of these issues

would have turned up, [petitioner] cannot meet the prejudice prong of the Strickland test.”).



In Claim Six, petitioner alleges that counsel was ineffective for failing to impeach the

testimony of victim-witnesses Thompson and Stafford, and failing to make their credibility “a

major issue for the jury to decide.” ECF No. 4 at 8. Petitioner states that Thompson and Stafford

are lovers, felons, and admitted meth users who “shared $19,500 dollars of witness protection

money which is a strong motive for drug users to lie.” Id. Further,

During cross examination of Ms. Thompson kidnapped
victim/witness, accepted collect phone calls from Petitioner. The
very person who was alleged to have kidnapped her. The
conversation had to do with her speaking with Mr. Hoptowit,
Petitioner’s defense attorney. Under oath she denied ever trying to
contact [Mr. Hoptowit], but the fact was she tried to contact his
office (7) times. Mr. Hoptowit testified to this fact Ms. Thompson
left (3) messages on his phone machine. He tried to contact her, to
no avail, one message was dated 1-2-07. Why the perjury was
never forced to be an issue is beyond this Petitioner’s thinking.
This should have been impeached testimony and a jury should have
decided the issues of perjury.

ECF No. 4 at 8 (internal citations omitted).

During closing argument, defense counsel argued to the jury, in relevant part:

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You have now been exposed, I suspect to most of you, to a brand
new world; prison, parole, felons, drugs, dopers, where people are
hardened, where there is bravado. It’s bizarre. There is loyalty.
There is distortion. It’s sometimes crude. There is trust and
distrust. That’s the world these people live in. ¶…¶

… [I]f you decide that a witness deliberately lied about something
significant in this case, you should consider not believing anything
the witness said. It goes on to say you can sort it out, if you want
to, and believe part of it, but you should not believe anything that
witness said if they deliberately lied.

What is the evidence from Wade [Stafford] and Suzie [Thompson]?
[¶] I haven’t used drugs in years, twice recreational sex, twice in
the last – since May. [¶] I never called Mr. Hoptowit. [¶] Several
messages, never returned. [¶] I am not afraid of Wade. He’s never
hurt me. [¶] Lit cigarette up the nose. [¶] Can we trust her
testimony? Those are the things she said in front of you. She lied
to you. You can distrust her, and you should, in fairness to
[petitioner]. Any doubt, it goes to his benefit. [¶] She told her
brother, James Ward, “I am messed up, bro. I slipped.” [¶] She’s
used twice since he got out of prison. … ¶…¶

Even if you don’t believe [petitioner], or believe part of it, or
whatever, you still have to find the proof to convict through the
statement of these dopers. … ¶…¶

I put [the investigator on the stand] to ask her about trying to go
back months and recapture the phone calls from the jail – just
couldn’t do it. But it’s interesting that the DA had some phone
calls where they think [petitioner] is trying to script an eyewitness
defense, but not those phone calls. And yet if they had heard any
phone calls and heard [petitioner] and Suzie talking on the phone,
wouldn’t that be revealing? That would mean a lot. We couldn’t
get them. Somehow the people didn’t either. ¶…¶

Wade and Suzie…. Can you trust anything they say? …¶…¶

…You just got to know that there is not enough evidence based
upon what Wade and Suzie said, and the lack of physical evidence
to convict. You cannot trust Wade and Suzie. [¶] ...Why would
she lie? Speculation, but it’s logical. They got married in
December. Wade won Suzie, and so now everything that she says,
or says about this incident is to protect Wade. I call upon you to be
reasonable, to use your intellect. Look at the evidence for what it
is…. Suzie said – and I hope you heard it, that