Petition for Writ of Certiorari — Earl Lee Dixie, Petitioner v. Kenneth Harrington, Warden

Supreme Court briefMay 22, 2019

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No.

____________________________________________________________________________

IN THE SUPREME COURT OF THE UNITED STATES

________________________

EARL DIXIE,

Petitioner

K. HARRINGTON, Warden,

Respondent

________________________

ON PETITION FOR A WRIT OF CERTIORARI TO THE UNITED STATES

COURT OF APPEALS FOR THE NINTH CIRCUIT

________________________

APPENDIX

________________________

STEPHANIE ADRAKTAS

Attorney for Petitioner

2625 Alcatraz Avenue, #233

Berkeley, CA 94705

(415) 699-1507

CJA Appointed Counsel for Petitioner

TABLE OF CONTENTS

MEMORANDUM DECISION OF THE NINTH CIRCUIT COURT OF APPEALS .. . . . . . . . . 1

NINTH CIRCUIT COURT OF APPEALS ORDER GRANTING CERTIFICATE OF

APPEALABILITY (Docket No. 4). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6

DISTRICT COURT JUDGMENT (CR 34).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8

ORDER ACCEPTING FINDINGS AND RECOMMENDATIONS OF UNITED STATES

MAGISTRATE JUDGE (CR 33). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9

REPORT AND RECOMMENDATIONS OF UNITED STATES MAGISTRATE JUDGE

(CR 32) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10

CALIFORNIA SUPREME COURT ORDER DENYING PETITION FOR A WRIT OF

HABEAS CORPUS (July 12, 2010) (Lodged Record No. 1) .. . . . . . . . . . . . . . . . . . . . . . . . . . . 35

CALIFORNIA COURT OF APPEAL ORDER DENYING SECOND PETITION FOR A WRIT

OF HABEAS CORPUS (July 14, 2009)(Lodged Record No. 2) . . . . . . . . . . . . . . . . . . . . . . . . . 36

RIVERSIDE COUNTY SUPERIOR COURT ORDER DENYING PETITION FOR A WRIT OF

HABEAS CORPUS (November 7, 2013)(Lodged Record No. 26). . . . . . . . . . . . . . . . . . . . . . . 47

RIVERSIDE COUNTY SUPERIOR COURT ORDER DENYING PETITION FOR A WRIT OF

HABEAS CORPUS (May 1, 2009) (Lodged Record No. 2-4.) . . . . . . . . . . . . . . . . . . . . . . . . . . 37

COURT OF APPEAL OPINION (March 13, 2008) (Lodged Record No. 2-3). . . . . . . . . . . . . . 41

PETITIONER'S APPENDIX - 1

PETITIONER'S APPENDIX - 2

PETITIONER'S APPENDIX - 3

PETITIONER'S APPENDIX - 4

PETITIONER'S APPENDIX - 5

Case: 11-57185

03/07/2013

ID: 8542229

DktEntry: 4

Page: 1 of 2

FILED

MAR 07 2013

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

EARL LEE DIXIE,

Petitioner - Appellant,

MOLLY C. DWYER, CLERK

U .S. C O U R T OF APPE ALS

No. 11-57185

D.C. No. 5:10-cv-01026-R-PLA

Central District of California,

Riverside

K. HARRINGTON, Warden,

ORDER

Respondent - Appellee.

Before:

REINHARDT and MURGUIA, Circuit Judges.

The request for a certificate of appealability is granted with respect to the

following issues: 1) whether trial counsel rendered ineffective assistance by failing

to conduct any investigation into the extent or possible ramifications of appellant’s

psychiatric impairment; and 2) whether appellant’s sentence constitutes cruel and

unusual punishment. See 28 U.S.C. § 2253(c)(3); see also 9th Cir. R. 22-1(e).

We sua sponte appoint counsel for appellant for purposes of appeal.

Counsel will be appointed by separate order. If appellant does not wish to have

appointed counsel, appellant shall file a motion asking to proceed pro se within 14

days of the date of this order.

The Clerk shall electronically serve this order on the appointing authority for

the Central District of California, who will locate appointed counsel. The

PETITIONER'S APPENDIX - 6

Case: 11-57185

03/07/2013

ID: 8542229

DktEntry: 4

Page: 2 of 2

appointing authority shall send notification of the name, address, and telephone

number of appointed counsel to the Clerk of this court at

counselappointments@ca9.uscourts.gov within 14 days of locating counsel.

The opening brief and excerpts of record are due May 20, 2013; the

answering brief is due June 19, 2013; and the optional reply brief is due within 14

days after service of the answering brief.

If K. Harrington is no longer the appropriate appellee in this case, counsel

for appellee shall notify this court by letter of the appropriate substitute party

within 21 days of the filing date of this order. See Fed. R. App. P. 43(c).

The Clerk is directed to change appellant’s address to CSP- Solano, P. O.

Box 4000, Vacaville, CA 95696-4000.

PETITIONER'S APPENDIX - 7

Case 5:10-cv-01026-R-PLA Document 34 Filed 11/28/11 Page 1 of 1 Page ID #:307

UNITED STATES DISTRICT COURT

CENTRAL DISTRICT OF CALIFORNIA

EASTERN DIVISION

EARL LEE DIXIE,

Petitioner,

KENNETH HARRINGTON,

Respondent.

)

No. ED CV 10-1026-R (PLA)

JUDGMENT

Pursuant to the order adopting the magistrate judge’s final report and

recommendation, IT IS ADJUDGED that the petition in this matter is denied and dismissed with

prejudice.

DATED: November 28, 2011

HONORABLE MANUEL L. REAL

UNITED STATES DISTRICT JUDGE

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Case 5:10-cv-01026-R-PLA Document 33 Filed 11/28/11 Page 1 of 1 Page ID #:306

UNITED STATES DISTRICT COURT

CENTRAL DISTRICT OF CALIFORNIA

EASTERN DIVISION

EARL LEE DIXIE,

Petitioner,

KENNETH HARRINGTON,

Respondent.

)

No. ED CV 10-1026-R (PLA)

ORDER ADOPTING MAGISTRATE

JUDGE’S FINAL REPORT AND

RECOMMENDATION

Pursuant to 28 U.S.C. § 636, the Court has reviewed the entire file de novo, including the

magistrate judge’s final report and recommendation and petitioner’s objections. The Court agrees

with the recommendations of the magistrate judge.

ACCORDINGLY, IT IS ORDERED:

The final report and recommendation is adopted.

Judgment shall be entered consistent with this order.

The clerk shall serve this order and the judgment on all counsel or parties of record.

DATED: November 28, 2011

HONORABLE MANUEL L. REAL

UNITED STATES DISTRICT JUDGE

PETITIONER'S APPENDIX - 9

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UNITED STATES DISTRICT COURT

CENTRAL DISTRICT OF CALIFORNIA

EASTERN DIVISION

EARL LEE DIXIE,

)

Petitioner,

)

KENNETH HARRINGTON,

)

Respondent.

)

_________________________________)

No. ED CV 10-1026-R (PLA)

FINAL REPORT AND RECOMMENDATION

OF UNITED STATES MAGISTRATE JUDGE

This Final Report and Recommendation is submitted to the Honorable Manuel L. Real,

United States District Judge, pursuant to 28 U.S.C. § 636 and General Order 194 of the United

States District Court for the Central District of California. For the reasons discussed below, the

Magistrate Judge recommends that the Petition for Writ of Habeas Corpus (“Petition”) be

dismissed with prejudice.

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SUMMARY OF PROCEEDINGS

On June 15, 2006, following a jury trial in the Riverside County Superior Court, petitioner

was convicted of one count each of recklessly evading a police officer in violation of California

Vehicle Code § 2800.2, possession of marijuana while driving a vehicle in violation of California

Vehicle Code § 23222(b), driving under the influence in violation of California Vehicle Code §

23152(a), and hit and run in violation of California Vehicle Code § 20002(a). (Clerk’s Transcript

(“CT”) 123-26).

suspended license in violation of California Vehicle Code § 14601.1(a). (2 Reporter’s Transcript

(“RT”) 400). The jury found true the allegation that petitioner had three prior strike convictions

pursuant to California Penal Code §§ 667(c), (e)(2)(A), 1170.12(c)(2)(A).

January 29, 2007, petitioner was sentenced to an indeterminate term of 25 years to life in state

prison. (CT 240; 2 RT 400-01).

Petitioner also pleaded guilty to one count of misdemeanor driving on a

(CT 189).

Petitioner appealed his conviction to the California Court of Appeal, which affirmed the trial

court’s judgment in an unpublished opinion on March 13, 2008. (See Lodgment Nos. 2, 5).

Petitioner filed a petition for review in the California Supreme Court, which was denied without

comment on June 11, 2008. (See Lodgment Nos. 6, 7).

Petitioner filed a petition for writ of habeas corpus in the Riverside County Superior Court,

which was denied on April 28, 2009. (See Lodgment Nos. 8, 9). Petitioner filed a petition for writ

of habeas corpus in the California Court of Appeal, which was denied without comment on July

14, 2009. (See Lodgment Nos. 10, 11). Petitioner filed a petition for writ of habeas corpus in the

California Supreme Court, which was also denied without comment on April 28, 2010. (See

Lodgment Nos. 12, 13).

On July 12, 2010, petitioner filed his federal petition (“Pet.”) in this Court. On October 8,

2010, respondent filed an Answer (“Ans.”), accompanied by a supporting Memorandum of Points

and Authorities (“Ans. Mem.”). Petitioner filed a Traverse (“Trav.”), accompanied by a supporting

Memorandum of Points and Authorities (“Trav. Mem.”), on December 10, 2010.

Thus, the matter is deemed submitted and is ready for a decision.

PETITIONER'S APPENDIX - 11

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II.

STATEMENT OF FACTS

The Court adopts the following factual summary set forth in the California Court of Appeal’s

Opinion affirming petitioner’s conviction. To the extent that an evaluation of petitioner’s claims

depends on an examination of the trial record, the Court herein has made an independent

evaluation of the record specific to those claims.

While patrolling at dusk on a Sunday evening, in an area known

for drug trafficking and prostitution, uniformed police officers in a

marked patrol car noticed expired registration tags on [petitioner’s]

vehicle. The vehicle was stopped on the side of the road, and

[petitioner] was seen speaking to two women through the window. As

the officers’ patrol car approached [petitioner’s] vehicle, [petitioner]

drove away. The officers activated the red lights on the patrol car and

began to follow [petitioner’s] vehicle. [Petitioner] pulled into a nearby

parking lot and stopped, but drove off at an accelerated speed when

the officers exited their patrol cars and began to walk toward him. The

officers returned to their patrol car, turned on the siren, and began to

pursue [petitioner].

During the pursuit, [petitioner] drove his vehicle at speeds up

to 100 miles per hour through residential streets, ran stop signs and

red traffic lights, crashed through a fence, and stuck two trees. For a

portion of the chase, [petitioner] turned off his headlights, presumably

to avoid detection, and drove his vehicle on the wrong side of the

street and in a bike lane, where he came close to hitting cyclists.

[Petitioner] also drove his vehicle in an area near a park where there

is generally foot traffic at the time of day in question. Multiple police

units became involved in pursuing [petitioner], including assistance

from the air.

When [petitioner’s] vehicle finally broke down and came to a

stop, the officers called for medical assistance because [petitioner]

was injured. The officers searched [petitioner’s] vehicle and found an

open bottle of gin. Fire personnel searched [petitioner’s] person and

found a bag of marijuana in his pocket. The officers determined

[petitioner’s] license had been revoked and confirmed his vehicle

registration was expired.

At trial, the prosecution offered testimony by an officer who

participated in the pursuit, paramedics who arrived at the scene

immediately after the chase, and an expert witness concerning

substances found in [petitioner’s] blood and to what degree these

substances could have impaired [petitioner’s] driving. [Petitioner]

testified at trial in his own defense. He explained that extenuating

circumstances and emotional pain from the sudden death of a close

relative [led] him to ingest alcohol and illegal drugs and to then drive

under the influence. He claimed to have been free of drug and

alcohol abuse for eight years prior to this incident. [Petitioner] stated

he did not know why he evaded police. However, he admitted he was

“high” and “wasn’t thinking right.” [Petitioner] not only acknowledged

the dangerousness of his actions[,] but stated he was sorry for his

conduct. In addition, [petitioner] admitted a number of prior offenses

PETITIONER'S APPENDIX - 12

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and testified he suffers from diabetes, asthma, hypertension, and

paranoid schizophrenia.

(Lodgment No. 5 at 2-3).

III.

PETITIONER’S CONTENTIONS

Petitioner’s right to counsel under the Sixth Amendment was violated because his

trial counsel failed to investigate petitioner’s mental health history and prepare a defense

accordingly. (See Pet. at 5a-5d).

Petitioner’s sentence of 25 years to life for a “wobbler” offense1 constitutes cruel and

unusual punishment. (See Pet. at 6a-6b).

IV.

STANDARD OF REVIEW

The Petition was filed after the enactment of the Antiterrorism and Effective Death Penalty

Act of 1996 (“the AEDPA”). Pub. L. No. 104-132, 110 Stat. 1214 (1996). Therefore, the Court

applies the AEDPA in reviewing the Petition. See Lindh v. Murphy, 521 U.S. 320, 336, 117 S. Ct.

2059, 138 L.Ed.2d 481 (1997).

Under the AEDPA, a federal court may not grant a writ of habeas corpus on behalf of a

person in state custody “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.” 28 U.S.C. § 2254(d). As explained by the Supreme Court, section 2254(d)(1)

California courts have the discretion to reduce certain felony charges to misdemeanors.

In re Anderson, 69 Cal.2d 613, 626, 73 Cal.Rptr. 21 (1968).

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“places a new constraint on the power of a federal habeas court to grant a state prisoner’s

application for a writ of habeas corpus with respect to claims adjudicated on the merits in state

court.” Williams v. Taylor, 529 U.S. 362, 412, 120 S. Ct. 1495, 146 L.Ed.2d 389 (2000).

“Under § 2254(d), a habeas court must determine what arguments or theories 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

[the Supreme Court].” Harrington v. Richter, __ U.S. __, 131 S. Ct. 770, 786, 178 L. Ed. 2d 624

(2011) (“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.”). In

Williams, the Court held that:

Under 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 this Court on a question of law or if the state court decides a case

differently than this Court has on a set of materially indistinguishable

facts. Under the “unreasonable application” clause, a federal habeas

court may grant the writ if the state court identifies the correct

governing legal principle from this Court’s decisions but unreasonably

applies that principle to the facts of the prisoner’s case.

Williams, 529 U.S. at 412-13; see Weighall v. Middle, 215 F.3d 1058, 1061-62 (9th Cir. 2000)

(discussing Williams). A federal court making the “unreasonable application” inquiry asks “whether

the state court’s application of clearly established federal law was objectively unreasonable.”

Williams, 529 U.S. at 409; Weighall, 215 F.3d at 1062. The Court explained that “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.” Williams, 529 U.S. at 411;

accord: Lockyer v. Andrade, 538 U.S. 63, 123 S. Ct. 1166, 1175, 155 L.Ed.2d 144 (2003). Section

2254(d)(1) imposes a “highly deferential standard for evaluating state-court rulings,” Lindh, 521

U.S. at 334 n.7, and “demands that state court decisions be given the benefit of the doubt.”

Woodford v. Visciotti, 537 U.S. 19, 123 S. Ct. 357, 360, 154 L.Ed.2d 279 (2002) (per curiam). A

federal court may not “substitut[e] its own judgment for that of the state court, in contravention of

28 U.S.C. § 2254(d).” Id.; Early v. Packer, 537 U.S. 3, 11, 123 S. Ct. 362, 366, 154 L.Ed.2d 263

PETITIONER'S APPENDIX - 14

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(2002) (per curiam) (holding that habeas relief is not proper where state court decision was only

“merely erroneous”).

The only definitive source of clearly established federal law under the AEDPA is the

holdings (as opposed to the dicta) of the Supreme Court as of the time of the state court decision.

Williams, 529 U.S. at 412. While circuit law may be “persuasive authority” for purposes of

determining whether a state court decision is an unreasonable application of Supreme Court law

(Duhaime v. Ducharme, 200 F.3d 597, 600-01 (9th Cir.1999)), only the Supreme Court’s holdings

are binding on the state courts and only those holdings need be reasonably applied. Williams, 529

U.S. at 412; Clark v. Murphy, 331 F.3d 1062, 1069 (9th Cir.), cert. denied, 540 U.S. 968, 124 S.

Ct. 446, 157 L. Ed. 2d 313 (2003).

determinations by a state court “shall be presumed to be correct” unless the petitioner rebuts the

presumption “by clear and convincing evidence.”

Furthermore, under 28 U.S.C. § 2254(e)(1), factual

The United States Supreme Court has held that “[w]here there has been one reasoned

state judgment rejecting a federal claim, later unexplained orders upholding that judgment or

rejecting the same claim rest upon the same ground.” Ylst v. Nunnemaker, 501 U.S. 797, 803,

111 S. Ct. 2590, 115 L.Ed.2d 706 (1991). Here, petitioner presented the claims set forth in the

instant Petition in his direct appeals and habeas petitions filed in the California courts. With regard

to the Eighth Amendment claim, the California Court of Appeal issued a reasoned decision in its

denial of the direct appeal, while the California Supreme Court issued a silent denial. For the

ineffective assistance of counsel claim, the Riverside County Superior Court issued a reasoned

decision denying the habeas petition, while the California Court of Appeal and California Supreme

Court issued silent denials. Under these circumstances, the Court looks through the unexplained

denials and reviews the reasoned opinions of the superior court and California Court of Appeal

under the AEDPA standards. See Shackleford v. Hubbard, 234 F.3d 1072, 1079 n.2 (9th Cir.

2000).

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DISCUSSION

GROUND ONE:

PETITIONER’S TRIAL ATTORNEY PROVIDED INEFFECTIVE

ASSISTANCE BY FAILING TO INVESTIGATE AND PRESENT A

DEFENSE OF MENTAL ILLNESS

Petitioner contends in Ground One that his trial counsel was ineffective for failing to

investigate and present evidence of his mental illness -- his schizophrenic condition -- to rebut the

specific intent element of his felony evading offense, in violation of his Sixth Amendment right to

counsel.

hallucinations since 1994, when he was incarcerated at New Folsom State Prison in California.

(Id.) There, petitioner was diagnosed with schizophrenia and given medication for his condition

until he was released on parole in 2000. (Id.) In approximately April or May of 2002, petitioner

was not taking his medications and consequently experienced a schizophrenic episode. (Id.)

(Pet. at 5a).2

Petitioner asserts that he has experienced auditory and visual

On June 2, 2002, petitioner committed the present evading offense. (1 CT 1). Petitioner

contends he “was being treated with medications for his diagnosis of schizophrenia,” during the

four years he was awaiting trial, which began on June 12, 2006. (Pet. at 5d; 1 RT 52). Petitioner

alleges that the “attorneys that were assigned to his case . . . were informed by petitioner of his

mental illness,” but “none of the . . . attorneys conducted an investigation into his mental health

In order to prove a violation of California Vehicle Code § 2800.2(a), each of the following

elements must be proved:

A person, while operating a motor vehicle, willfully fled or otherwise

attempted to elude a pursuing peace officer;

The person did so with the specific intent to evade the pursuing peace

officer;

The peace officer’s vehicle exhibited at least one lighted red lamp

visible from the front;

The person saw or reasonably should have seen the red lamp;

The peace officer’s vehicle sounded a siren, as reasonably necessary;

The peace officer’s motor vehicle was distinctively marked;

The peace officer’s motor vehicle was operated by a peace officer

wearing a distinctive uniform; and

The driver of the pursued vehicle drove the vehicle in a willful or

wanton disregard for the safety of persons or property.

(CALJIC No. 12.85; CT 154-55; 2 RT 284-85) (emphasis added).

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history [or] consulted with an expert in preparation of a defense based thereon.” (Pet. at 5d). As

a result, petitioner contends that trial counsel was “constitutionally ineffective for failing to

investigate his mental health history and present credible expert testimony about paranoid

schizophrenia[,] . . . the effects that it had on petitioner[,] and how the tragic loss of a loved one,

combined with using PCP could have triggered a schizophrenic episode[,] and thus explained

petitioner[’]s conduct” on the day of the offense. (Trav. Mem. at 5). Specifically, petitioner

maintains his “mental health history and present documentary evidence” could call into question

his ability to form the “specific intent” that was a required element for a guilty verdict on the

evading offense. (Id. at 6).

Petitioner testified that on the day in question, he was very upset because his niece had

passed away. Throughout the afternoon, he ingested alcohol, marijuana, cocaine and PCP to

cope with the emotional pain. (1 RT 207-26). That evening, petitioner’s wife asked him to find her

sister, Tonya, who was living with them at the time. Petitioner drove to an area frequented by

prostitutes and drug users to look for Tonya. Petitioner testified that after he pulled into the

location, a few females approached him. He asked them about Tonya. Petitioner stayed parked

in his car while the women “squatted down at [his] door, talking to [him].” (1 RT 228). Petitioner

testified that he shared with them a cigarette laced with PCP.

Relevant Facts

The following exchange between petitioner and his counsel then took place:

How were you feeling at this point?

I am getting high. I’m getting high. I’m getting real high.

What did you do?

One of the girls asked me could she hit it. Could she have a

drag off of [the cigarette]. And I gave it to her out the window.

Then what happened?

I sat there for a minute, and then I started thinking. I was trying

-- I was trying to think, why was I sitting here now? I am losing

my thoughts. I am getting high. But then I kind of think -- I

remember, I think, I don’t know for sure, but I told myself I had

to get back to my family.

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Then what did you do?

I started my car up and I drove off.

(1 RT 229).

Petitioner testified that he did not recall anything after driving away, that he did not

remember the police chasing him as he drove, and that his next memory was of waking up in the

hospital in handcuffs. (1 RT 229-33, 245).

When asked about his mental health, petitioner said that he was diagnosed with paranoid

schizophrenia and had been prescribed medication for the condition, but he did not take his

medication on the day of the incident. (1 RT 234-25).

A toxicologist testified for the prosecution regarding how different levels of alcohol and

drugs, such as cocaine, PCP, and marijuana, can cause impairment. (RT 139-52). According to

the toxicologist, PCP is a “disassociative anesthetic,” and can make the user unaware of pain and

of his or her surroundings. (1 RT 174-75, 189).

A paramedic who responded to the scene described petitioner as “uncooperative,” and that

he was “unable” or “unwilling” to answer the paramedic’s questions, although petitioner did

complain of “generalized body pains and some neck and back pains.” (RT 116-23). Another

paramedic who rode in the ambulance with petitioner to the hospital testified that petitioner had

“no problems” with verbal responses, did not appear to be “disoriented” or “disassociated,” and

provided information, such as his name, age, and medical history, in response to the paramedic’s

questions. (1 RT 195-200, 205).

During closing arguments, petitioner’s counsel stated in pertinent part:

What’s interesting is, if [petitioner] can get up there and bawl

four years later about what happened to his niece, what do you think

his state of mind was on that day four years ago?

***

You have four years, four years, to think about a story. And the

best you can come up with is, “At the time, I was getting lit up. I

blacked out”? Well, I could think of, in four hours, four better versions,

basically. Let’s talk about them.

***

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How about, why not say, “I drove down Ninth Street. I drove

down there, and I didn’t see or hear anything.” . . . Doesn’t that sound

better than, you know, “As soon as I pulled off and was getting lit up

by the cops, as soon as I pulled off, I blacked out”?

Second one. Why not say that, “I ran. I remember doing all of

these things, but I was so high that I really don’t know what I was

doing”? Why not say that? That works. We know what PCP does.

. . . In four years, you can’t think of something better? Because what

he told you is the truth.

The third one. You’ve got evidence that, you know, that he

[w]as schizophrenic. That is an unpredictable disease. It is not in

front of you, but we could have presented that? And schizophrenia,

in combination with drugs, why not blame it on that. “Yeah, I

remember, but I was paranoid. I didn’t know who it was.” Any of

those things. Why not any of those things?

And the best one, which, if I had that to argue, I think it would

make a whole lot more sense, is why not black out as soon as you

leave the house? Why do we need the details of smoking on your

way to the hotel? Why not smoke all of it at the house, hop in the car

as you were going out back to L.A. and “I blacked out”? . . . That one

is better. I’d love to be able to argue that to you, but it’s not what

happened. He told you what happened.

(2 RT 331-33) (emphasis added).

Petitioner presented his ineffective assistance claim in his habeas petitions filed in the

California courts. The Riverside County Superior Court, the only state court that issued a

reasoned opinion, rejected the claim as follows in pertinent part:

The State Court Decision

The petition is denied as to the second and third grounds

asserted (i.e., those alleging ineffective assistance of counsel)

because the petition fails to state a prima facie factual case supporting

the petitioner’s release. (Cal. Rules of Court, rule 4.551(c).) To

demonstrate that a defendant has received constitutionally inadequate

representation by counsel, he or she must show that (1) counsel’s

representation was deficient, i.e., it fell below an objective standard of

reasonableness under prevailing professional norms; and

(2) counsel’s deficient performance subjected the defendant to

prejudice, i.e., there is a reasonable probability that, but for counsel’s

failings, the result would have been more favorable to the defendant.

The petition does not demonstrate that either of those two

requirements has been met regarding either of the two IAC

arguments.

(Lodgment No. 9).

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Relevant Federal Law

In federal habeas proceedings, the two-step analysis outlined by the Supreme Court in

Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L.Ed.2d 674 (1984), governs

ineffective assistance claims. Under Strickland, petitioner first must prove that his attorney’s

representation fell below an objective standard of reasonableness by identifying the acts or

omissions that rendered the representation objectively unreasonable. Id. at 687-88, 690. An

attorney’s performance is deemed deficient if it is objectively unreasonable under prevailing

professional norms. Strickland, 466 U.S. at 687-88; Hughes v. Borg, 898 F.2d 695, 702 (9th Cir.

1990). Review of counsel’s performance is highly deferential, and the petitioner must overcome

the strong presumption that counsel’s conduct fell within the wide range of reasonable

representation. Strickland, 466 U.S. at 689. The reviewing court need not determine the actual

reason for an attorney’s actions, as long as the act falls within the range of reasonable

representation. See Morris v. California, 966 F.2d 448, 456-57 (9th Cir. 1991). In reviewing a

challenge to the effectiveness of trial counsel, the court must make “every effort . . . to eliminate

the distorting effects of hindsight, to reconstruct the circumstances of counsel’s challenged

conduct, and to evaluate the conduct from counsel’s perspective at the time.” Strickland, 466 U.S.

at 689.

In the second step, petitioner must show that he was prejudiced by counsel’s deficient

performance by demonstrating a reasonable probability that, but for his counsel’s errors, the result

of the proceeding would have been different. Strickland, 466 U.S. at 692, 694. “A reasonable

probability is a probability sufficient to undermine confidence in the outcome.” Id. at 694.

Petitioner bears the burden of satisfying both prongs of Strickland. Id. at 687; United States v.

Quintero-Barraza, 78 F.3d 1344, 1348 (9th Cir. 1995).

The Court further observes that a Strickland analysis pursuant to 28 U.S.C. § 2254(d) is

very deferential. Premo v. Moore, __ U.S. __, 131 S. Ct. 733, 740, 178 L.Ed. 2d 649 (2011) (“The

standards created by Strickland and § 2254(d) are both ‘highly deferential,’ and when the two

apply in tandem, review is ‘doubly’ so. The Strickland standard is a general one, so the range of

reasonable applications is substantial.”) (citations omitted). Thus, when Section 2254(d) applies,

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as it does in this case, “the question is not whether counsel’s actions were reasonable. The

question is whether there is any reasonable argument that counsel satisfied Strickland’s

deferential standard.” Id. at 740.

Under Strickland, “counsel has a duty to make reasonable investigations or to make a

reasonable decision that makes particular investigations unnecessary. In any ineffectiveness case,

a particular decision not to investigate must be directly assessed for reasonableness in all the

circumstances, applying a heavy measure of deference to counsel’s judgments.” Strickland, 466

U.S. at 691. The investigation should allow counsel to make an informed decision on how best

to represent his or her clients. See Rios v. Rocha, 299 F.3d 796, 805 (9th Cir. 2002). Additionally,

“strategic choices made after thorough investigation of law and facts relevant to plausible options

are virtually unchallengeable; and strategic choices made after less than complete investigation

are reasonable precisely to the extent that reasonable professional judgments support the

limitations on investigation.” Strickland, 466 U.S. at 690-91.

Analysis of Petitioner’s Claim

Here, based on defense counsel’s direct examination of petitioner and his closing

argument, it is apparent that counsel made the strategic decision to rely on a voluntary intoxication

defense instead of a mental health defense to support petitioner’s testimony that he did not intend

to evade police, and thus lacked the specific intent to commit the evading offense. (Pet. at 5c; 1

RT 229-33, 236). However, while it was counsel’s trial strategy to forgo the mental health defense

in lieu of the voluntary intoxication defense, there is no clear indication in the record concerning

the extent of the investigation, if any, counsel conducted regarding petitioner’s schizophrenia. For

example, there is no declaration signed by petitioner’s counsel explaining the reasons for selecting

the defense strategy. Nor is there any documentation reflecting counsel’s preparation of the

defense, or any indication that petitioner underwent a psychological evaluation or that a mental

health expert was ever consulted.

The Court finds it unnecessary to consider the reasonableness of counsel’s investigation

and consequent trial strategy, however, because even if trial counsel did perform deficiently,

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petitioner has nevertheless not shown that the decision to forgo the mental defense was prejudicial

within the meaning of Strickland. See Strickland, 466 U.S. at 697 (a federal court “need not

determine whether counsel’s performance was deficient before examining the prejudice suffered

by the defendant as a result of the alleged deficiencies . . . . If it is easier to dispose of an

ineffectiveness claim on the ground of lack of sufficient prejudice . . . that course should be

followed”). In support of his ineffective assistance claim, petitioner argues that “[c]ounsel could

have rebutted the specific intent element with a showing of petitioner’s mental illness and it’s [sic]

associated symptoms of hallucinations and delusions, . . . and the medical studies finding ‘PCP’

exacerbates the symptoms.” (Pet. at 5d). Contrary to petitioner’s argument, however, there was

no evidence presented that indicated petitioner was experiencing visual or auditory hallucinations

or delusions at the time of the incident. Rather, petitioner testified that he “started [his] car up and

drove off” because he was feeling “real[ly] high” and thought that “[he] had to get back to his

family.”

schizophrenia was disturbing his sensory perceptions or his thought processes such that he was

not able to comprehend his surroundings or control his actions.

(1 RT 229).

Nothing in his testimony indicated that when he drove away, his

Petitioner further asserts that had his counsel presented evidence that schizophrenia

causes memory loss, this would have “corroborate[d] [his] testimony that he couldn’t recall certain

events that had transpired that day.” (Trav. Mem. at 4). Contrary to petitioner’s argument,

however, presenting evidence of schizophrenia as an explanation for his inability at trial to recall

what transpired would not have necessarily proven that at the time of the incident he lacked the

specific intent to evade the police. Moreover, given that the other evidence supporting a finding

of specific intent was substantial, it is not likely that presenting evidence of his mental illness would

have resulted in the jury believing his testimony that he did not purposefully flee from the police.

For example, officers testified that at the time the felony evading offense was committed, they

were driving in a marked police vehicle when they spotted petitioner’s parked car. As the officers

approached in their vehicle, petitioner’s car pulled away. The officers activated their lights and

followed petitioner as he turned into a driveway at the end of a street. After petitioner stopped,

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the officers exited their vehicle and approached. Petitioner then drove away at a high speed. (1

RT 68-78). Thereafter, petitioner not only turned off his headlights, presumably to avoid detection

(1 RT 83-84), he also drove through a fence and struck a palm tree with the front of his car,

reversed his vehicle, and hit a second tree behind him (1 RT 93-97), all arguably done to continue

driving away from the officers. At one point in the chase, air assistance and seven police vehicles

were pursuing petitioner with the patrol cars’ lights and sirens activated. (1 RT 87-89). In addition,

a paramedic who rode in the ambulance with petitioner to the hospital testified that petitioner had

“no problems” with his verbal responses, and was able to provide responsive information to

questions about his personal background. According to the paramedic, petitioner did not appear

to be “disoriented” or “disassociated.” (1 RT 199-200, 205).

In his Traverse, petitioner cites Seidel v. Merkle, 146 F.3d 750 (9th Cir. 1998), as being

“directly on point.” (Trav. Mem. at 5.) In Seidel, trial counsel relied solely on a theory of self-

defense to contest the murder charge against the petitioner, and the petitioner was ultimately

convicted of second degree murder. On appeal following a grant of habeas relief by the district

court, the Ninth Circuit affirmed, finding that the petitioner had received ineffective assistance of

counsel when, despite clear evidence available at the time of trial that the petitioner had an

extensive history of mental problems (post-traumatic stress disorder and brain damage) and that

counsel “actually was aware of the mental problems that his client suffered,” counsel failed to

conduct any investigation “to ascertain the extent or possible ramifications of his client’s

psychiatric impairment,” depriving the petitioner of a potentially meritorious defense. Seidel, 146

F.3d at 756. The Seidel court determined that had a mental illness defense been presented, there

was a “reasonable probability that . . . the jury would not have found the existence of malice” to

support the second degree murder conviction. Id. at 757. In reaching this conclusion, the court

observed: “It is particularly curious that counsel requested and received jury instructions for both

voluntary and involuntary manslaughter, but failed to present any evidence or argument to support

a manslaughter finding. Although trial counsel relied exclusively on a theory of self-defense, [the

petitioner] never testified and there was no other evidence presented that was relevant to [the

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petitioner’s] mental state. Accordingly, evidence demonstrating [his] mental condition would have

played a significant role in establishing the requisite fear for purposes of self-defense.” Id.

(emphasis added).

Petitioner’s reliance on Seidel is unavailing. Unlike Seidel, where trial counsel was

ineffective for relying solely on a self-defense theory while failing to present any evidence

supporting a manslaughter finding or concerning the petitioner’s mental state, in this case trial

counsel did present evidence in support of the voluntary intoxication defense and of petitioner’s

mental state: petitioner testified regarding his version of events and a toxicologist testified

regarding the impairing effects of alcohol and drugs such as cocaine, marijuana, and PCP.

Moreover, there is no indication that introducing evidence of petitioner’s schizophrenia “would

have played a significant role in establishing” that he lacked the intent to evade police given (1)

petitioner’s testimony explaining why he drove away, which gave no indication that he was

experiencing a schizophrenic episode with hallucinations or delusions, (2) the paramedic’s

testimony that petitioner was oriented and able to communicate rationally after he was

apprehended, and (3) the testimony of the officers describing the chase from which it could

reasonably be inferred that petitioner drove away in order to flee from the police. In short, when

considering the overall record, petitioner has not demonstrated that, even if evidence regarding

his schizophrenia had been presented, there is a reasonable probability that the jury would have

found him not guilty of the evading offense. Strickland, 466 U.S. at 694. Accordingly, the Court

concludes that the Riverside County Superior Court reasonably determined that petitioner failed

to demonstrate prejudice to establish his ineffective assistance of counsel claim.

For the foregoing reasons, the state court’s denial of petitioner’s claim of ineffective

assistance was not contrary to Strickland. 28 U.S.C. § 2254(d); Williams, 529 U.S. at 411-12.

Habeas relief is denied for Ground One.

Petitioner asserts he is entitled to an evidentiary hearing to develop the factual record of

Request for Evidentiary Hearing

his ineffective assistance claim. (Trav. Mem. at 25).

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An evidentiary hearing is required if: (1) the petitioner has alleged facts that, if proven,

would entitle him to habeas relief, and (2) he did not receive a full and fair opportunity to develop

those facts in the state court. Earp v. Ornoski, 431 F.3d 1158, 1167 (9th Cir. 2005). However,

“an evidentiary hearing is not required on issues that can be resolved by reference to the state

court record.” See Totten v. Merkle, 137 F.3d 1172, 1176 (9th Cir. 1998). “It is axiomatic that

when issues can be resolved with reference to the state court record, an evidentiary hearing

becomes nothing more than a futile exercise.” Id.

Here, the Court has been able to resolve all of petitioner’s claims by reference to the state

court record.3 Moreover, petitioner has not alleged facts that, if proven, would entitle him to

habeas relief. Accordingly, petitioner’s request for an evidentiary hearing is denied.

.GROUND TWO:

PETITIONER’S SENTENCE CONSTITUTES CRUEL AND UNUSUAL

PUNISHMENT

Petitioner asserts in Ground Two that his indeterminate sentence of twenty-five years to

life amounts to cruel and unusual punishment in violation of the Eighth Amendment. (Pet. at 6a).

Specifically, petitioner claims that a “conviction . . . for the wobbler offense of evading the police,

. . . is neither serious nor violent,” and “[t]he crime did not involve any weapons or threats of

violence, and petitioner hurt no one during the car chase other than himself.” (Id.; see also Trav.

Mem. at 14-17). Petitioner adds that his sentence “for the wobbler offense of evading the police

far exceeds those sentences imposed for the most violent and serious felonies in California.” (Pet.

at 6a-6b; see also Trav. Mem. at 17-18). Lastly, petitioner asserts that his sentence “is also

Additionally, the United States Supreme Court recently held that “review under [28

U.S.C.] § 2254(d)(1) is limited to the record that was before the state court that adjudicated the

claim on the merits.” Cullen v. Pinholster, __ U.S. __, 131 S.Ct. 1388, 1398 (2011). “[W]hen the

state-court record ‘precludes habeas relief’ under the limitations of § 2254(d), a district court is ‘not

required to hold an evidentiary hearing.’” Id. at 1399 (quoting Schriro v. Landrigan, 550 U.S. 465,

474, 127 S.Ct. 1933, 167 L.Ed.2d 836 (2007)). As explained herein, the state court’s denial of

petitioner’s ineffective assistance claim was not contrary to, or an unreasonable application of,

Supreme Court precedent. Thus, under Pinholster, because petitioner has not overcome the

limitations of § 2254(d), no evidentiary hearing is required.

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disproportionate when compared with punishments in other jurisdictions for the same crime.”

(Trav. Mem. at 18-25; see also Pet. at 6b).

On direct appeal, the California Court of Appeal rejected petitioner’s “cruel and unusual

punishment” claim. The court first discussed petitioner’s abuse of discretion claim concerning the

trial court’s denial of petitioner’s motion to dismiss the three prior strikes, as follows:

The California Court of Appeal’s Opinion

Contrary to [petitioner’s] contentions, the record shows the trial

court carefully balanced all relevant factors and reached an impartial

decision not to dismiss any of [petitioner’s] prior strikes. The court

stated it considered not only the facts and circumstances surrounding

the current offenses as presented during trial but [petitioner’s] entire

criminal history beginning in 1983, including his record of poor

performance on parole. Essentially, [petitioner] would have us

evaluate these facts anew and give more weight to those facts that

[petitioner] believes are enough to take him outside the spirit of the

Three Strikes law. However, as noted above, we may not substitute

our judgment for that of the trial court.

Like the trial court, we are unconvinced by [petitioner’s]

attempts to characterize his current and prior offenses as “nonviolent,”

“minor,” or “minimal.” With respect to the current offenses, we agree

with the trial court’s conclusion [that] [petitioner] engaged in “serious

felonious conduct,” which demonstrated a “conscious disregard” for

the lives and safety of others. As the trial court noted, [petitioner’s]

conduct was reckless and “could easily have resulted in the death of

someone.”

As the trial court noted on the record, [petitioner’s] career as a

criminal began in 1983 with a felony conviction for stolen property,

which was followed by a burglary, several robberies, domestic

violence charges, and repeated parole violations. At least some of

[petitioner’s] prior convictions involved recklessness that endangered

others, similar to the current offenses. In 1985, [petitioner] reportedly

“encountered two men in a vehicle and stole their wallet[s], and when

the police came up, he was sitting on top of one of the victims. He ran

and then was eventually apprehended.” During the second degree

robbery in 1990, [petitioner] was confronted by a security guard

outside a store after he had been observed hiding merchandise on his

person and leaving the store without paying. He not only resisted

arrest but “obtained a small pocket-type of screwdriver and attempted

to stab the security guards. [Petitioner] succeeded in stabbing one of

the security guards in the leg and bit a store employee on his arm.”

Mitigating circumstances considered by the trial court did

include the impact of the tragic circumstances which preceded the

commission of the current offenses. The trial court acknowledged that

it heard [petitioner’s] testimony at trial and had “no doubt” [petitioner]

was “hurting for the loss” of a loved one “at the time when all this was

happening,” but concluded that this was “no excuse” for endangering

the lives of others. We cannot disagree with the trial court’s

conclusion in this regard.

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The record also supports [petitioner’s] contention he made

significant progress in his long-term struggle with addiction in the

years immediately preceding the current offenses and had succeeded

in developing new family relationships. However, it is apparent these

new family relationships were not enough to motivate [petitioner] to

continue to live a life free of drug addiction and serious, lifethreatening crime. As the trial court noted, [petitioner] was well aware

he was facing a 25-year-to-life sentence if he did not make a complete

break from his past life of crime and addiction, but even this did not

deter him from committing the serious, new offenses in this case.

Under these circumstances, we cannot disagree with the trial court’s

conclusion [petitioner’s] prospects for living a crime-free life in the

future were not significant enough to justify a sentencing break at this

time. Despite his efforts to reform, [petitioner] has demonstrated an

unrelenting inability or unwillingness to comply with the law or to show

any consideration for the safety of others. As a result, he falls

squarely within the Three Strikes scheme, which seeks to protect the

public from the dangers presented by repeat offenders.

In sum, there is nothing in the record indicating the trial court

failed to consider all the relevant facts or considered impermissible

factors.

Neither the facts of the current offenses, nor the

circumstances of [petitioner’s] criminal history or current situation

support a conclusion [that] he should be deemed outside the spirit of

the Three Strikes law and “treated as though he had not previously

been convicted of one or more serious and/or violent felonies.”

([People v.]Williams, supra, [(1998)] 17 Cal. 4th [148] at p. 161.)

Therefore, the trial court did not abuse its discretion when it denied

[petitioner’s] motion to dismiss one or more strikes.

(Lodgment 5 at 7-9).

The Court of Appeal rejected petitioner’s cruel and unusual punishment claim, stating as

follows:

Here, we cannot say that the application of the Three Strikes

law to [petitioner’s] present felony offense and past recidivism, as

described above, violates the Eighth Amendment. In reaching this

conclusion, we reject [petitioner’s] attempts to equate his case with

others, including Ramirez v. Castro (9th Cir. 2004) 365 F.2d 755

(Ramirez), where courts have found a sentence under the Three

Strikes law to be extreme enough to violate the Eighth Amendment.

In Ramirez, for example, the Ninth Circuit concluded that a habeas

petitioner’s 25-year-to-life sentence under California’s Three Strikes

law violated the Eighth Amendment because it was extreme when

compared to the gravity of the most recent offense and the

defendant’s criminal history. (Ramirez, at p. 767.) Although

[petitioner] argues his case “mirrors” that of the defendant in Ramirez,

our review of the Ninth Circuit’s fact-specific analysis shows

[petitioner’s] case is easily distinguishable. Most significantly, the

triggering offense in Ramirez was shoplifting with “no report of any

force or violence.” (Id. at p. 757.) The petitioner “surrendered without

resistance, admitted his crime, and returned the VCR” to the store.

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(Id. at p. 758.) His entire criminal history consisted of two other

nonviolent shoplifting incidents obtained through a single guilty plea

with a total sentence of one year in county jail and three years’

probation. (Id. at pp. 768-769.) For the reasons outlined in the

previous discussion, it is obvious that the triggering offense and

criminal history at issue in this case are considerably more serious,

indicating [petitioner] poses a greater risk to the public.

We must also reject [petitioner’s] argument his sentence is

grossly disproportionate when compared with punishments in other

jurisdictions for the same crime and in California for more serious

offenses, such as murder and kidnapping for rape or robbery.

“[P]roportionality assumes a basis for comparison. When the

fundamental nature of the offense and offender differ, comparison for

proportionality is not possible. The seriousness of the threat a

particular offense poses to society is not solely dependent on whether

it involves physical injury. Consequently, the commission of a single

act of murder, while heinous and severely punished, cannot be

compared with the commission of multiple felonies. [Citation.]” (People

v. Cooper (1996) 43 Cal.App.4th 815, 826.)

(Lodgment No. 5 at 10-11).

Relevant Federal Law and Analysis of Petitioner’s Claim

For the reasons explained below, the Court concludes that the state court’s determination

of petitioner’s Eighth Amendment claim was not contrary to, or an unreasonable application of,

Supreme Court precedent.

For purposes of federal habeas review, it is “clearly established” law that “[a] gross

disproportionality principle is applicable to sentences for terms of years.” Andrade, 538 U.S. at

72. The principle “does not require strict proportionality between crime and sentence” but “[r]ather,

it forbids only extreme sentences that are ‘grossly disproportionate’ to the crime.” Harmelin v.

Michigan, 501 U.S. 957, 993, 1001, 111 S. Ct. 2680, 115 L.Ed.2d 836 (1991) (Kennedy, J.,

concurring).

proportionality principle are unclear and “applicable only in the ‘exceedingly rare’ and ‘extreme’

case.” Andrade, 538 U.S. at 73 (citation omitted); see also Solem v. Helm, 463 U.S. 277, 289-90,

103 S. Ct. 3001, 77 L.Ed.2d 637 (1983) (successful challenges based on proportionality are

“exceedingly rare”).

The Supreme Court has noted, however, that the “precise contours” of the

In Andrade, and its companion case Ewing v. California, 538 U.S. 11, 123 S. Ct. 1179, 155

L.Ed.2d 108 (2003) (plurality opinion), the United States Supreme Court considered and rejected

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Eighth Amendment claims concerning California’s “Three Strikes” law. The Andrade petitioner had

received a sentence of 50 years to life for his current offenses of two counts of petty theft, where

the value of the stolen property totaled around $150. Due to a prior misdemeanor petty theft

conviction, however, both petty thefts were charged as felonies. Andrade had an extensive

criminal history dating back 13 years, which included three residential burglary convictions (which

had been charged as prior “strikes”), as well as convictions for misdemeanor theft, transportation

of marijuana (two times), and petty theft. In rejecting petitioner’s cruel and unusual punishment

claim, the California Court of Appeal had concluded that the 50 years to life sentence was not

disproportionate. The Supreme Court held that the California Court of Appeal’s decision was

neither contrary to nor involved an unreasonable application of the clearly established gross

disproportionality principle. See Andrade, 538 U.S. at 66-76.

In Ewing, the Supreme Court upheld a “Three Strikes” sentence of twenty-five years to life.

The Ewing defendant was convicted in the instant offense of stealing three golf clubs priced at a

total of $1,197, and had a criminal history that included numerous misdemeanor and felony

convictions (including three residential burglary convictions and one robbery conviction that had

been charged as prior “strikes”) for which he had served nine separate terms of incarceration, with

most of his crimes being committed while on probation or parole. Ewing, 538 U.S. at 17-19, 30.

In affirming Ewing’s sentence, the Supreme Court stated that it did not “sit as a ‘superlegislature’

to second-guess [California’s sentencing scheme]. It is enough that the State of California has

a reasonable basis for believing that dramatically enhanced sentences for habitual felons

‘advance[s] the goals of [its] criminal justice system in any substantial way.’” (Citation omitted).

Ewing, 538 U.S. at 28 (alterations in original) (citing Solem, 463 U.S. at 297 n.22). The Ewing

Court explained:

Ewing’s sentence is justified by the State’s public-safety interest in

incapacitating and deterring recidivist felons, and amply supported by

his own long, serious criminal record. ... To be sure, Ewing’s

sentence is a long one. But it reflects a rational legislative judgment,

entitled to deference, that offenders who have committed serious or

violent felonies and who continue to commit felonies must be

incapacitated. The State of California “was entitled to place upon

[Ewing] the onus of one who is simply unable to bring his conduct

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within the social norms prescribed by the criminal law of the State.”

Ewing’s is not “the rare case in which a threshold comparison of the

crime committed and the sentence imposed leads to an inference of

gross disproportionality.”

Ewing, 538 U.S. at 29-30 (footnote and citations omitted).

The Ninth Circuit has specified that, in applying the gross disproportionality principle,

“courts must objectively measure the severity of a defendant’s sentence in light of the crimes he

committed.”

determining whether petitioner’s lengthy sentence is grossly disproportionate under California’s

recidivist sentencing statute, the Court must consider whether the sentence “is justified by the

gravity of his most recent offense and criminal history.” Id. at 1291. Furthermore, when

considering the relevance of the recent offense and his criminal history, the Court analyzes the

“factual specifics” of a petitioner’s priors to determine whether the conduct involved violence or

whether it was particularly serious. See Reyes v. Brown, 399 F.3d 964, 969-70 (9th Cir. 2005)

(holding that the record before the district court was not sufficiently detailed to determine level of

violence of past crimes, and remanding for further development of the record).

Norris v. Morgan, 622 F.3d 1276, 1287 (9th Cir. 2010).

In other words, in

Here, in assessing the gravity of petitioner’s current offense, the Court notes that the

“triggering” offenses in Andrade and Ewing involved property crimes. See Andrade, 538 U.S. at

66 (petty theft of $153.54 worth of videotapes from retail store); Ewing, 538 U.S. at 17-18 (grand

theft for shoplifting three golf clubs worth $399 each). Petitioner’s “triggering” offense involved

attempting to evade police officers while driving recklessly. See Cal. Veh. Code § 2800.2. Given

that the evading police offense could have been charged as either a felony or misdemeanor, and

that a petty theft offense such as the one in Andrade is a felony only when the perpetrator has a

prior conviction, the Court finds that petitioner’s commitment offense may be considered at least

as serious as the property crimes involved in Ewing and Andrade. Specifically, in evading police

and driving recklessly, petitioner, among other things, drove through posted stop signs and red

lights, drove on the wrong side of the road, drove at excessive speeds, drove through a fence,

struck a palm tree with the front end of his car and then hit another tree with the rear end of his

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vehicle. (1 RT 79-100). While petitioner contends in his Petition that his crime was neither serious

nor violent, and additionally claims that no one was hurt, he conceded at trial that his behavior was

dangerous. In fact, he testified he “understood [he] could have hurt some people. [He] could have

killed some people.” (1 RT 237). The Court agrees with the California Court of Appeal in finding

that petitioner’s specific offense consisted of dangerous behavior when he resisted police by

evading officers through a high speed chase and put others in danger when he drove recklessly.

Cf. Ramirez, 365 F.3d 757-58.

Next, in assessing the severity of petitioner’s sentence, the Court also considers petitioner’s

history of criminal conduct. See Ewing, 123 S. Ct. at 1189-90. According to petitioner’s

pre-sentence report, petitioner’s criminal behavior dates back to 1983 when, as a juvenile,

petitions were sustained as to California Penal Code § 496.1 for receipt of stolen property,

California Penal Code § 484(a) for shoplifting, and California Penal Code § 459 for burglary, and

in 1985, as to California Penal Code § 211 for robbery. (CT 221).

In 1990, as an adult, petitioner pleaded guilty to two counts of second degree robbery and

was sentenced to two years in prison. (CT 222; 1 RT 235). In 1992, petitioner pleaded guilty to

vehicle tampering and, later that year, to attempted robbery; in 1993, petitioner pleaded guilty to

misdemeanor brandishing; and in 1994, he pleaded guilty to a misdemeanor for domestic violence.

(Id.) In 1994, petitioner was convicted of felony theft, sentenced to 25 years to life in state prison,

was then re-sentenced to a term of seven years, and released. (Id.) Finally, in June 2002,

petitioner committed the underlying offense, a felony for attempting to evade a peace officer while

driving recklessly, and was convicted in 2006. (Id.) In total, when he was sentenced in 2006 at

the age of 40, petitioner had seven felony convictions, including a number of juvenile

adjudications, and six misdemeanor convictions. (CT 212, 221-23). The two robberies in 1990

constituted petitioner’s first and second prior strikes, where petitioner “succeeded in stabbing one

of the security guards in the leg and bit a store employee on the arm.” (CT 226). His third prior

strike consisted of his July 1992 arrest for strong arm robbery, where “officers observed [petitioner]

sitting on top of a Hispanic male, holding him down to the ground.” (Id.)

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In light of petitioner’s substantial criminal history coupled with the current felony conviction,

the Court concludes that this is not one of those “exceedingly rare” situations warranting habeas

relief. Andrade, 538 U.S. at 73. The Court, while finding petitioner’s sentence of twenty-five years

to life severe, cannot conclude that it raises an inference of disproportionality given that his prior

crimes involved violent conduct. The Court has also taken into consideration other Supreme Court

precedent affirming sentences of greater length in cases where the defendants had comparatively

less serious criminal histories than petitioner and/or non-violent current convictions. See, e.g.,

Harmelin, 501 U.S. at 961, 996 (mandatory life sentence for first drug offense not

disproportionate); Hutto v. Davis, 454 U.S. 370, 370-71, 102 S. Ct. 703, 70 L.Ed.2d 556 (1982)

(rejecting challenge to a 40-year sentence for possession of less than nine ounces of marijuana);

Rummel v. Estelle, 445 U.S. 263, 265-66, 100 S. Ct. 1133, 63 L.Ed.2d 382 (1980) (life sentence

upheld where priors consisted of fraudulent use of a credit card to obtain $80 worth of goods or

services and passing a forged check for $28.36, and current offense was using false pretenses

to obtain around $120).

Accordingly, the Court agrees with the California Court of Appeal that petitioner’s sentence

is not grossly disproportionate, and finds no need to continue with “a comparative analysis

between petitioner’s sentence and sentences imposed for other crimes in [California] and

sentences imposed for the same crime in other jurisdictions.” Harmelin, 501 U.S. at 1004; see

also Ramirez, 365 F.3d at 770 (comparative analysis appropriate only in the “extremely rare case

that gives rise to an inference of gross disproportionality”). The California Court of Appeal’s

decision was not contrary to, or an unreasonable application of, Supreme Court precedent. 28

U.S.C. § 2254(d); Williams, 529 U.S. at 411-12. No habeas relief is warranted for Ground Two.4

On November 18, 2011, petitioner filed objections to the Report and Recommendation,

issued on June 9, 2011. In the objections, petitioner argues that the state court’s determination

that petitioner did not receive ineffective assistance of counsel was not a finding of historic fact and

asserts that this Court should not have given it deference as such. (Objections at 5-6).

Petitioner’s assertion is incorrect. As explained herein, the Court only reviewed whether the state

court was reasonable in its denial of petitioner’s ineffective assistance claim, and did not treat the

state court’s denial as a factual finding entitled to a presumption of correctness that petitioner did

(continued...)

PETITIONER'S APPENDIX - 32

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VI.

RECOMMENDATION

It is recommended that the District Court issue an Order: (1) adopting this Final Report and

Recommendation; and (2) directing that judgment be entered denying the Petition and dismissing

this action with prejudice.

This Report and Recommendation is not intended for publication, nor is it intended

to be included in, or submitted to, any online service such as Westlaw or Lexis.

DATED: November 23, 2011

PAUL L. ABRAMS

UNITED STATES MAGISTRATE JUDGE

(...continued)

in fact receive effective assistance of counsel. Petitioner also asserts that the Court failed to view

the evidence “in the light most favorable to the nonmoving party.” (Objections at 7, citing Adickes

v. S. H. Kress & Co., 398 U.S. 144, 157-60, 90 S.Ct. 1598, 26 L.Ed.2d 142 (1970)). Petitioner’s

assertion is without merit, however, as it is based on the standard for reviewing motions for

summary judgment, and not on the AEDPA standard for reviewing state habeas petitions. As

explained herein, the Court reviewed petitioner’s claims under the AEDPA standard. The Court

has reviewed petitioner’s remaining objections, and concludes that they lack merit.

PETITIONER'S APPENDIX - 33

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NOTICE

Reports and Recommendations are not appealable to the Court of Appeals, but are subject

to the right of any party to file Objections as provided in the Local Rules Governing Duties of

Magistrate Judges, and review by the District Judge whose initials appear in the docket number.

No Notice of Appeal pursuant to the Federal Rules of Appellate Procedure should be filed until

entry of the Judgment of the District Court.

PETITIONER'S APPENDIX - 34

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This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.