1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 BRANDEN M. GAGNON, No. 2:19-cv-0305 CKD P 12 Petitioner, 13 v. ORDER 14 R. FISHER, 15 Respondent. 16 17 Petitioner, a state prisoner proceeding pro se, has filed an application for a writ of habeas 18 corpus pursuant to 28 U.S.C. § 2254. This proceeding was referred to this court by Local Rule 19 302 pursuant to 28 U.S.C. § 636(b)(1) and the parties have consented to have all matters in this 20 action before a United States Magistrate Judge. See 28 U.S.C. § 636(c). 21 On May 27, 2016, petitioner was convicted in Shasta County of two counts of corporal 22 injury to spouse, assault with a deadly weapon, kidnapping, false imprisonment by violence and 23 threats resulting in great bodily injury. ECF No. 10-2 at 283. Petitioner was sentenced to 11 24 years imprisonment. Id. 25 Petitioner now presents two claims. First, petitioner asserts that his conviction for 26 kidnapping must be vacated based upon the trial court’s failure to instruct jurors, sua sponte, as to 27 the lesser included offense of false imprisonment. Second, petitioner asserts that consecutive 28 sentences for his two convictions of corporal injury to spouse violate his Fifth Amendment right 1 not to be subjected to double jeopardy. 2 I. Habeas Corpus Standards 3 An application for a writ of habeas corpus by a person in custody under a judgment of a 4 state court can be granted only for violations of the Constitution or laws of the United States. 28 5 U.S.C. § 2254(a). A federal writ of habeas corpus is not available for alleged error in the 6 interpretation or application of state law. See Wilson v. Corcoran, 562 U.S. 1, 5 (2010); Estelle v. 7 McGuire, 502 U.S. 62, 67-68 (1991); Park v. California, 202 F.2d 1146, 1149 (9th Cir. 2000). 8 The exhaustion of state court remedies is a prerequisite to the granting of a petition for 9 writ of habeas corpus. 28 U.S.C. § 2254(b)(1). If exhaustion is to be waived, it must 10 be waived explicitly by respondents’ counsel. 28 U.S.C. § 2254(b)(3). A waiver of exhaustion, 11 thus, may not be implied or inferred. A petitioner satisfies the exhaustion requirement by 12 providing the highest state court with a full and fair opportunity to consider all claims before 13 presenting them to the federal court. Picard v. Connor, 404 U.S. 270, 276 (1971). A habeas 14 claim may be denied on the merits without exhaustion of state court remedies. 28 U.S.C. § 15 2254(b)(2). 16 Title 28 U.S.C. § 2254(d) sets forth the following limitation on the granting of federal 17 habeas corpus relief: 18 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 19 with respect to any claim that was adjudicated on the merits in State court proceedings unless the adjudication of the claim – 20 (1) resulted in a decision that was contrary to, or involved an 21 unreasonable application of, clearly established federal law, as determined by the Supreme Court of the United States; 22 or 23 (2) resulted in a decision that was based on an unreasonable 24 determination of the facts in light of the evidence presented in the State court proceeding. 25 26 The “contrary to” and “unreasonable application” clauses of § 2254(d)(1) are different, 27 as the Supreme Court has explained: 28 A federal habeas court may issue the writ under the “contrary to” 1 clause if the state court applies a rule different from the governing law set forth in our cases, or if it decides a case differently than we 2 have done on a set of materially indistinguishable facts. The court may grant relief under the “unreasonable application” clause if the 3 state court correctly identifies the governing legal principle from our decisions but unreasonably applies it to the facts of the particular 4 case. The focus of the latter inquiry is on whether the state court’s application of clearly established federal law is objectively 5 unreasonable, and we stressed in Williams [v. Taylor, 529 U.S. 362 (2000)] that an unreasonable application is different from an 6 incorrect one.
7 8 Bell v. Cone, 535 U.S. 685, 694 (2002). 9 “A state court’s determination that a claim lacks merit precludes federal habeas relief so 10 long as ‘fairminded jurists could disagree’ on the correctness of the state court’s decision.” 11 Harrington v. Richter, 562 U.S. 86, 101 (2011) (quoting Yarborough v. Alvarado, 541 U.S. 652, 12 664 (2004)). Accordingly, “[a]s a condition for obtaining habeas corpus from a federal court, a 13 state prisoner must show that the state court’s ruling on the claim being presented in federal court 14 was so lacking in justification that there was an error well understood and comprehended in 15 existing law beyond any possibility for fairminded disagreement.” Richter, 562 U.S. at 103. 16 The court looks to the last reasoned state court decision as the basis for the state court 17 judgment. Stanley v. Cullen, 633 F.3d 852, 859 (9th Cir. 2011). 18 A petitioner bears “the burden to demonstrate that ‘there was no reasonable basis for the 19 state court to deny relief.’” Walker v. Martel, 709 F.3d 925, 939 (9th Cir. 2013) (quoting Richter, 20 562 U.S. at 98). 21 II. Background 22 Petitioner does not challenge any facts underlying his convictions; the issues he raises are 23 legal in nature. The opinion delivered by the California Court of Appeal on direct review 24 provides a thorough summary of the events which occurred at trial including a summary of the 25 evidence presented. (ECF No. 10-15 at 2-13). 26 III. Lesser Included Offense 27 Petitioner claims he had a right arising under the Due Process Clause of the Fourteenth 28 Amendment to have jurors instructed, sua sponte, as to the elements of false imprisonment, a 1 lesser included offense of kidnapping under California law. Petitioner asks that this court vacate 2 his conviction for kidnapping. The California Court of Appeal rejected this claim citing 3 California Supreme Court precedent. ECF No. 10-15 at 26, n. 4. 4 The U.S. Supreme Court has never found that a state court's failure to instruct as to a 5 lesser included offense in a non-capital case provides a basis for federal habeas relief, and the 6 court declined to reach the question of whether such a failure can amount to a violation of the 7 Due Process Clause in Beck v. Alabama, 447 U.S. 625, 638 n. 14 (1980).
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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 BRANDEN M. GAGNON, No. 2:19-cv-0305 CKD P 12 Petitioner, 13 v. ORDER 14 R. FISHER, 15 Respondent. 16 17 Petitioner, a state prisoner proceeding pro se, has filed an application for a writ of habeas 18 corpus pursuant to 28 U.S.C. § 2254. This proceeding was referred to this court by Local Rule 19 302 pursuant to 28 U.S.C. § 636(b)(1) and the parties have consented to have all matters in this 20 action before a United States Magistrate Judge. See 28 U.S.C. § 636(c). 21 On May 27, 2016, petitioner was convicted in Shasta County of two counts of corporal 22 injury to spouse, assault with a deadly weapon, kidnapping, false imprisonment by violence and 23 threats resulting in great bodily injury. ECF No. 10-2 at 283. Petitioner was sentenced to 11 24 years imprisonment. Id. 25 Petitioner now presents two claims. First, petitioner asserts that his conviction for 26 kidnapping must be vacated based upon the trial court’s failure to instruct jurors, sua sponte, as to 27 the lesser included offense of false imprisonment. Second, petitioner asserts that consecutive 28 sentences for his two convictions of corporal injury to spouse violate his Fifth Amendment right 1 not to be subjected to double jeopardy. 2 I. Habeas Corpus Standards 3 An application for a writ of habeas corpus by a person in custody under a judgment of a 4 state court can be granted only for violations of the Constitution or laws of the United States. 28 5 U.S.C. § 2254(a). A federal writ of habeas corpus is not available for alleged error in the 6 interpretation or application of state law. See Wilson v. Corcoran, 562 U.S. 1, 5 (2010); Estelle v. 7 McGuire, 502 U.S. 62, 67-68 (1991); Park v. California, 202 F.2d 1146, 1149 (9th Cir. 2000). 8 The exhaustion of state court remedies is a prerequisite to the granting of a petition for 9 writ of habeas corpus. 28 U.S.C. § 2254(b)(1). If exhaustion is to be waived, it must 10 be waived explicitly by respondents’ counsel. 28 U.S.C. § 2254(b)(3). A waiver of exhaustion, 11 thus, may not be implied or inferred. A petitioner satisfies the exhaustion requirement by 12 providing the highest state court with a full and fair opportunity to consider all claims before 13 presenting them to the federal court. Picard v. Connor, 404 U.S. 270, 276 (1971). A habeas 14 claim may be denied on the merits without exhaustion of state court remedies. 28 U.S.C. § 15 2254(b)(2). 16 Title 28 U.S.C. § 2254(d) sets forth the following limitation on the granting of federal 17 habeas corpus relief: 18 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 19 with respect to any claim that was adjudicated on the merits in State court proceedings unless the adjudication of the claim – 20 (1) resulted in a decision that was contrary to, or involved an 21 unreasonable application of, clearly established federal law, as determined by the Supreme Court of the United States; 22 or 23 (2) resulted in a decision that was based on an unreasonable 24 determination of the facts in light of the evidence presented in the State court proceeding. 25 26 The “contrary to” and “unreasonable application” clauses of § 2254(d)(1) are different, 27 as the Supreme Court has explained: 28 A federal habeas court may issue the writ under the “contrary to” 1 clause if the state court applies a rule different from the governing law set forth in our cases, or if it decides a case differently than we 2 have done on a set of materially indistinguishable facts. The court may grant relief under the “unreasonable application” clause if the 3 state court correctly identifies the governing legal principle from our decisions but unreasonably applies it to the facts of the particular 4 case. The focus of the latter inquiry is on whether the state court’s application of clearly established federal law is objectively 5 unreasonable, and we stressed in Williams [v. Taylor, 529 U.S. 362 (2000)] that an unreasonable application is different from an 6 incorrect one.
7 8 Bell v. Cone, 535 U.S. 685, 694 (2002). 9 “A state court’s determination that a claim lacks merit precludes federal habeas relief so 10 long as ‘fairminded jurists could disagree’ on the correctness of the state court’s decision.” 11 Harrington v. Richter, 562 U.S. 86, 101 (2011) (quoting Yarborough v. Alvarado, 541 U.S. 652, 12 664 (2004)). Accordingly, “[a]s a condition for obtaining habeas corpus from a federal court, a 13 state prisoner must show that the state court’s ruling on the claim being presented in federal court 14 was so lacking in justification that there was an error well understood and comprehended in 15 existing law beyond any possibility for fairminded disagreement.” Richter, 562 U.S. at 103. 16 The court looks to the last reasoned state court decision as the basis for the state court 17 judgment. Stanley v. Cullen, 633 F.3d 852, 859 (9th Cir. 2011). 18 A petitioner bears “the burden to demonstrate that ‘there was no reasonable basis for the 19 state court to deny relief.’” Walker v. Martel, 709 F.3d 925, 939 (9th Cir. 2013) (quoting Richter, 20 562 U.S. at 98). 21 II. Background 22 Petitioner does not challenge any facts underlying his convictions; the issues he raises are 23 legal in nature. The opinion delivered by the California Court of Appeal on direct review 24 provides a thorough summary of the events which occurred at trial including a summary of the 25 evidence presented. (ECF No. 10-15 at 2-13). 26 III. Lesser Included Offense 27 Petitioner claims he had a right arising under the Due Process Clause of the Fourteenth 28 Amendment to have jurors instructed, sua sponte, as to the elements of false imprisonment, a 1 lesser included offense of kidnapping under California law. Petitioner asks that this court vacate 2 his conviction for kidnapping. The California Court of Appeal rejected this claim citing 3 California Supreme Court precedent. ECF No. 10-15 at 26, n. 4. 4 The U.S. Supreme Court has never found that a state court's failure to instruct as to a 5 lesser included offense in a non-capital case provides a basis for federal habeas relief, and the 6 court declined to reach the question of whether such a failure can amount to a violation of the 7 Due Process Clause in Beck v. Alabama, 447 U.S. 625, 638 n. 14 (1980). This being the case, 8 petitioner cannot show the rejection of his claim in state court is either contrary to, or involves an 9 unreasonable application of, clearly established federal law, as determined by the Supreme Court 10 of the United States. Therefore, petitioner is precluded from relief by 28 U.S.C. § 2254(d). 11 Indeed, in his traverse, petitioner concedes that he is not entitled to habeas relief on his first 12 claim. 13 IV. Double Jeopardy 14 In his second claim, petitioner asserts that his consecutive sentences entered upon separate 15 convictions for corporal injury to spouse violate the Double Jeopardy Clause of the Fifth 16 Amendment. Petitioner argues the wrongful acts upon which both convictions are based (the 17 January 21, 2013 pushing of the victim to the ground then dragging her into her and the 18 defendant’s residence, and then the strangling of the victim by hanging in the residence) were part 19 of the same course of conduct as there was not a sufficient enough lapse in time between the two 20 events and no period of time for petitioner to “cool off” or “reflect.” 21 While petitioner raised a claim similar to this claim before the California Court of Appeal 22 and the California Supreme Court, that claim arises under California law and not the Fifth 23 Amendment. Accordingly, petitioner has not exhausted state court remedies as to this claim and 24 relief cannot be afforded. 25 In any case, petitioner’s double jeopardy claim lacks merit. “The decision whether to 26 impose sentences concurrently or consecutively is a matter of state criminal procedure and is not 27 within the purview of federal habeas corpus.” Cacoperdo v. Demosthenes, 37 F.3d 504, 507 (9th 28 Cir. 1994). In his traverse, petitioner claims he should not have received two convictions for 1 | corporal injury to spouse as the acts underlying both convictions occurred during a “continuous 2 || course of conduct.” However, the Double Jeopardy Clause does not preclude convictions for 3 || separate criminal acts simply because they occurred during the same transaction or course of 4 || conduct. See, e.g., Eckert v. Tansy, 936 F.2d 444, 450 (9th Cir.1991); Walker v. Endell, 850 F.2d 5 || 470, 476 (9th Cir. 1987). 6 || V. Conclusion 7 For all the foregoing reasons, petitioner’s application for a writ of habeas corpus will be 8 | denied and this case will be closed. Furthermore, the court will not grant a certificate of 9 || appealability, as referenced in 28 U.S.C. § 2253 as petitioner has not “made a substantial showing 10 || of the denial of a constitutional right.” 28 U.S.C. § 2253(c)(3). 11 Accordingly, IT IS HEREBY ORDERED that: 12 1. Petitioner’s petition for a writ of habeas corpus (ECF No. 1) is denied; 13 2. This case is closed; and 14 3. The court declines to issue the certificate of appealability referenced in 28 U.S.C. § 2253. 16 | Dated: June 28, 2021 / ae □□ / a Ly a "7 CAROLYNK.DELANEY 18 UNITED STATES MAGISTRATE JUDGE 19 20 21 4 gagn0305.157(2) 23 24 25 26 27 28