1 2 3 4 5 6 7 UNITED STATES DISTRICT COURT 8 SOUTHERN DISTRICT OF CALIFORNIA 9 10 MARK LEWIS KINNEY, Case No.: 14cv1136-JAH (KSC)
11 Plaintiff, ORDER ADOPTING THE 12 v. MAGISTRATE JUDGE’S REPORT AND RECOMMENDATION; 13 AMY MILLER, Warden, DENYING PETITION FOR WRIT 14 Defendant. OF HABEAS CORPUS; AND DENYING CERTIFICATE OF 15 APPEALABILITY 16 17 INTRODUCTION 18 Petitioner Mark Lewis Kinney (“Petitioner”), a state prisoner proceeding pro se, 19 filed a writ of habeas corpus (“Petition”) under 28 U.S.C. § 2254. Doc. No. 1. Respondent 20 Amy Miller (“Respondent”) filed an answer and supporting memorandum of points and 21 authorities to which Petitioner filed a traverse. Doc. Nos. 6, 26. The case was referred to 22 United States Magistrate Judge Karen Crawford for a Report and Recommendation 23 (“Report”) pursuant to 28 U.S.C. § 636(b)(1). Judge Crawford’s Report recommended 24 denying the petition in its entirety, and Petitioner filed objections to the Report. After 25 careful consideration of the entire record, and for the reasons set forth below, the Court 26 OVERRULES Petitioner’s objections; ADOPTS Judge Crawford’s Report; DENIES the 27 instant petition in its entirety; and DENIES issuing a Certificate of Appealability. 28 1 BACKGROUND 2 On February 20, 2011, Petitioner was convicted of five counts of committing lewd 3 acts upon a child, pursuant to Cal. Penal Code § 288(a) (counts 2, 5, 6, 7, and 8); two counts 4 of using a minor to perform prohibited acts, pursuant to Cal. Penal § 311.4(c) (counts 3 and 5 9); and one count of possessing matter depicting a person under 18 in sexual conduct, 6 pursuant to Cal. Penal Code § 3.11.11 (count 10). See Doc. No. 6-14, at 11. The jury found 7 Petitioner not guilty for counts 1 and 4. Id. at 219, 222. Petitioner was sentenced on March 8 18, 2011, to an indeterminate term of 15 years to life for count 2. Doc. No. 6-13 at 3-22. 9 As to counts 5, 6, 7, and 8, petitioner was sentenced to determinate term of six years for 10 each count, to run concurrent with the indeterminate term of 15 years to life. Id. Finally, 11 for counts 3, 9, and 10, petitioner was sentenced to a determinate term of two years for 12 each count, also running concurrently with the 15 years to life sentence. Id. at 16-20. 13 Petitioner filed a writ of habeas corpus in the California Court of Appeal on January 14 5, 2011. See Doc. No. 6-14. On November 13, 2012, the court denied the petition. Doc. 15 No. 6-17. Petitioner also filed a petition for writ of habeas corpus with the Supreme Court 16 of California where the court denied Petitioner’s request with no comment. Doc. No. 6-19 17 at 2. 18 Petitioned filed the instant petition on May 5, 2014, and raised the following grounds 19 for relief: (1) the trial court failed to provide a sua sponte instruction to the jury on battery 20 as a lesser included offense of lewd acts on a child; and (2) Petition was wrongfully 21 sentenced under the California “one strike” law in violation of the ex post facto clause of 22 the United States Constitution. Doc. No. 1 at 6-7. Respondent filed a response and 23 Petitioner subsequently filed a Traverse, withdrawing ground one for relief, thereby, 24 leaving the wrongful sentencing as the sole basis for relief. Doc. Nos. 6, 26. Judge 25 Crawford filed a Report, wherein which Petitioner filed objections. Doc. Nos. 27, 40. 26 Respondent did not file a reply. 27
28 1 The underlying facts set forth in the report are adopted in toto and referenced as if fully set forth herein. The Court provides 1 LEGAL STANDARD 2 The district court’s role in reviewing a magistrate judge’s report and 3 recommendation is set forth in 28 U.S.C. § 636(b)(1). Under this statute, the court “shall 4 make a de novo determination of those portions of the report…to which objection is made,” 5 and “may accept, reject, or modify, in whole or in part, the findings or recommendations 6 made by the magistrate judge.” Id. As to the portions of the report to which no objection is 7 made, the court may assume the correctness of the magistrate judge’s findings of fact and 8 decide the motion on the applicable law. See Wang v. Masaitis, 416 F.3d 992, 1000 n. 13 9 (9th Cir. 2005) (stating that “de novo review of a [report] is only required when an 10 objection is made”); United States v. Reyna-Tapia, 328 F.3d 1114, 1121 (9th Cir. 2003) 11 (en banc) (holding that 28 U.S.C. § 636(b)(1)(c) “makes it clear that the district judge must 12 review the magistrate judge’s findings and recommendations de novo if objection is made, 13 but not otherwise.”). 14 DISCUSSION 15 Petitioner alleges general objections to the Report by stating the magistrate judge 16 improperly reviewed the judgment entered by the trial court. Specifically, Petitioner alleges 17 there was an ex post facto violation when the trial judge sentenced him under California’s 18 “one strike rule.” Additionally, Petitioner requests the issuance of a Certificate of 19 Appealability. 20 Ex Post Facto 21 Petitioner alleges the trial court improperly sentenced him under California Penal 22 Code § 667.61 (“one strike rule”) to an indeterminate term of 15 years to life for count 2. 23 See Doc. No. 1 at 7. Petitioner specifically alleges he should have been sentenced under 24 the pre-September 2006 statue because the criminal acts occurred prior to the enactment of 25 the September 2006 amendment.2 The California Court of Appeal noted that the jury had 26 27 2 In September 2006, an amendment to California Penal code § 667.61(B) required a sentence of 15 years to life for violations 28 of California Penal Code § 228(a). Doc. No. 12. Prior to September 2006, violators of § 288(a) could receive probation in lieu 1 been instructed, in both the complaint and the separate jury instruction, that the provided 2 date range for the alleged criminal conduct was between November 12, 2006, and 3 November 12, 2008. Doc. No. 6-17 at 12. Judge Crawford notes in the Report that the plain 4 language of the complaint and jury instructions properly places Petitioner’s criminal 5 conduct within the amended version of California Penal Code § 667.61. Doc. No. 27 at 8. 6 Petitioner filed objections to the magistrates Report, arguing that the magistrate 7 failed to properly review the two sets of evidence, containing sworn testimony, placing the 8 time of the incident during the pre-September 2006 Statue. Doc. No. 40 at 6. Petitioner is 9 advocating for heavier weight to be placed on a witness’ (“Ms. C”) preliminary hearing 10 testimony, rather than the testimony at trial. However, Petitioner’s habeas is based upon a 11 due process or ex post facto violation rather than a sufficiency of evidence attack on his 12 conviction.3 Therefore, as noted in the Report, the Court finds no need to independently 13 review the conviction through a Jackson analysis. 14 Furthermore, Ms. C’s testimony corroborated the timeline placing the criminal 15 conduct clearly after the amended one strike rule. Specifically, Ms. C recalls the incident 16 occurred when she was spending the night alone at Petitioner’s house. Doc. No. 27. Ms. C 17 testified that she did not begin spending the night alone at Petitioner’s house until she was 18 ten years old. Id. The record indicates Ms.
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1 2 3 4 5 6 7 UNITED STATES DISTRICT COURT 8 SOUTHERN DISTRICT OF CALIFORNIA 9 10 MARK LEWIS KINNEY, Case No.: 14cv1136-JAH (KSC)
11 Plaintiff, ORDER ADOPTING THE 12 v. MAGISTRATE JUDGE’S REPORT AND RECOMMENDATION; 13 AMY MILLER, Warden, DENYING PETITION FOR WRIT 14 Defendant. OF HABEAS CORPUS; AND DENYING CERTIFICATE OF 15 APPEALABILITY 16 17 INTRODUCTION 18 Petitioner Mark Lewis Kinney (“Petitioner”), a state prisoner proceeding pro se, 19 filed a writ of habeas corpus (“Petition”) under 28 U.S.C. § 2254. Doc. No. 1. Respondent 20 Amy Miller (“Respondent”) filed an answer and supporting memorandum of points and 21 authorities to which Petitioner filed a traverse. Doc. Nos. 6, 26. The case was referred to 22 United States Magistrate Judge Karen Crawford for a Report and Recommendation 23 (“Report”) pursuant to 28 U.S.C. § 636(b)(1). Judge Crawford’s Report recommended 24 denying the petition in its entirety, and Petitioner filed objections to the Report. After 25 careful consideration of the entire record, and for the reasons set forth below, the Court 26 OVERRULES Petitioner’s objections; ADOPTS Judge Crawford’s Report; DENIES the 27 instant petition in its entirety; and DENIES issuing a Certificate of Appealability. 28 1 BACKGROUND 2 On February 20, 2011, Petitioner was convicted of five counts of committing lewd 3 acts upon a child, pursuant to Cal. Penal Code § 288(a) (counts 2, 5, 6, 7, and 8); two counts 4 of using a minor to perform prohibited acts, pursuant to Cal. Penal § 311.4(c) (counts 3 and 5 9); and one count of possessing matter depicting a person under 18 in sexual conduct, 6 pursuant to Cal. Penal Code § 3.11.11 (count 10). See Doc. No. 6-14, at 11. The jury found 7 Petitioner not guilty for counts 1 and 4. Id. at 219, 222. Petitioner was sentenced on March 8 18, 2011, to an indeterminate term of 15 years to life for count 2. Doc. No. 6-13 at 3-22. 9 As to counts 5, 6, 7, and 8, petitioner was sentenced to determinate term of six years for 10 each count, to run concurrent with the indeterminate term of 15 years to life. Id. Finally, 11 for counts 3, 9, and 10, petitioner was sentenced to a determinate term of two years for 12 each count, also running concurrently with the 15 years to life sentence. Id. at 16-20. 13 Petitioner filed a writ of habeas corpus in the California Court of Appeal on January 14 5, 2011. See Doc. No. 6-14. On November 13, 2012, the court denied the petition. Doc. 15 No. 6-17. Petitioner also filed a petition for writ of habeas corpus with the Supreme Court 16 of California where the court denied Petitioner’s request with no comment. Doc. No. 6-19 17 at 2. 18 Petitioned filed the instant petition on May 5, 2014, and raised the following grounds 19 for relief: (1) the trial court failed to provide a sua sponte instruction to the jury on battery 20 as a lesser included offense of lewd acts on a child; and (2) Petition was wrongfully 21 sentenced under the California “one strike” law in violation of the ex post facto clause of 22 the United States Constitution. Doc. No. 1 at 6-7. Respondent filed a response and 23 Petitioner subsequently filed a Traverse, withdrawing ground one for relief, thereby, 24 leaving the wrongful sentencing as the sole basis for relief. Doc. Nos. 6, 26. Judge 25 Crawford filed a Report, wherein which Petitioner filed objections. Doc. Nos. 27, 40. 26 Respondent did not file a reply. 27
28 1 The underlying facts set forth in the report are adopted in toto and referenced as if fully set forth herein. The Court provides 1 LEGAL STANDARD 2 The district court’s role in reviewing a magistrate judge’s report and 3 recommendation is set forth in 28 U.S.C. § 636(b)(1). Under this statute, the court “shall 4 make a de novo determination of those portions of the report…to which objection is made,” 5 and “may accept, reject, or modify, in whole or in part, the findings or recommendations 6 made by the magistrate judge.” Id. As to the portions of the report to which no objection is 7 made, the court may assume the correctness of the magistrate judge’s findings of fact and 8 decide the motion on the applicable law. See Wang v. Masaitis, 416 F.3d 992, 1000 n. 13 9 (9th Cir. 2005) (stating that “de novo review of a [report] is only required when an 10 objection is made”); United States v. Reyna-Tapia, 328 F.3d 1114, 1121 (9th Cir. 2003) 11 (en banc) (holding that 28 U.S.C. § 636(b)(1)(c) “makes it clear that the district judge must 12 review the magistrate judge’s findings and recommendations de novo if objection is made, 13 but not otherwise.”). 14 DISCUSSION 15 Petitioner alleges general objections to the Report by stating the magistrate judge 16 improperly reviewed the judgment entered by the trial court. Specifically, Petitioner alleges 17 there was an ex post facto violation when the trial judge sentenced him under California’s 18 “one strike rule.” Additionally, Petitioner requests the issuance of a Certificate of 19 Appealability. 20 Ex Post Facto 21 Petitioner alleges the trial court improperly sentenced him under California Penal 22 Code § 667.61 (“one strike rule”) to an indeterminate term of 15 years to life for count 2. 23 See Doc. No. 1 at 7. Petitioner specifically alleges he should have been sentenced under 24 the pre-September 2006 statue because the criminal acts occurred prior to the enactment of 25 the September 2006 amendment.2 The California Court of Appeal noted that the jury had 26 27 2 In September 2006, an amendment to California Penal code § 667.61(B) required a sentence of 15 years to life for violations 28 of California Penal Code § 228(a). Doc. No. 12. Prior to September 2006, violators of § 288(a) could receive probation in lieu 1 been instructed, in both the complaint and the separate jury instruction, that the provided 2 date range for the alleged criminal conduct was between November 12, 2006, and 3 November 12, 2008. Doc. No. 6-17 at 12. Judge Crawford notes in the Report that the plain 4 language of the complaint and jury instructions properly places Petitioner’s criminal 5 conduct within the amended version of California Penal Code § 667.61. Doc. No. 27 at 8. 6 Petitioner filed objections to the magistrates Report, arguing that the magistrate 7 failed to properly review the two sets of evidence, containing sworn testimony, placing the 8 time of the incident during the pre-September 2006 Statue. Doc. No. 40 at 6. Petitioner is 9 advocating for heavier weight to be placed on a witness’ (“Ms. C”) preliminary hearing 10 testimony, rather than the testimony at trial. However, Petitioner’s habeas is based upon a 11 due process or ex post facto violation rather than a sufficiency of evidence attack on his 12 conviction.3 Therefore, as noted in the Report, the Court finds no need to independently 13 review the conviction through a Jackson analysis. 14 Furthermore, Ms. C’s testimony corroborated the timeline placing the criminal 15 conduct clearly after the amended one strike rule. Specifically, Ms. C recalls the incident 16 occurred when she was spending the night alone at Petitioner’s house. Doc. No. 27. Ms. C 17 testified that she did not begin spending the night alone at Petitioner’s house until she was 18 ten years old. Id. The record indicates Ms. C’s tenth birthday was in November 2006, 19 directly placing Petitioner’s criminal conduct after the amendment to the one strike rule. 20 Id. Nevertheless, the jury was fully exposed to Ms. C’s testimony at trial and the 21 preliminary hearing testimony relied upon by Petitioner prior to reaching a verdict. See 22 Doc. No. 27 at 9. As such, the Court agrees that the jury was properly instructed to decide 23 whether Petitioner’s conduct occurred at the time subject to the amended version of the 24 one strike rule. Based upon the evidence introduced at trial and reviewing the evidence in 25 26 27 3 Under Jackson v. Virginia, 443 U.S. 307, 319 (1979), the relevant inquiry is “whether after viewing the evidence in the light 28 most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a 1 light most favorable to the prosecution, a rational trier of fact could have found the 2 government proved each element of the crime beyond a reasonable doubt. 3 This Court’s careful de novo review of the record reflects the magistrate judge 4 presented a cogent analysis of Petitioner’s claims and, thus, finds the magistrate judge’s 5 findings and conclusion are not clearly erroneous. The specific factual information, on 6 which the Report relied, is corroborated by the California Court of Appeal’s opinion. The 7 court must give deference to state court findings and presume them to be accurate. See 28 8 U.S.C. § 2254(e)(1). The presumption can only be rebutted through clear and convincing 9 evidence. Id.; Parke v. Raley, 506 U.S. 20, 35 (1992). Petitioner has failed to overcome the 10 evidentiary burden. Therefore, Petitioners’ objections are OVERULED. Accordingly, this 11 Court ADOPTS the Report in full and DENIES the instant petition in its entirety. 12 Certificate of Appealability 13 Pursuant to Rule 11 of the Federal Rules governing 28 U.S.C. § 2254, a “district 14 court must issue or deny a certificate of appealability when it enters a final order adverse 15 to the applicant.” A state prisoner may not appeal the denial of a section 2254 habeas 16 petition prior to obtaining a certificate of appealability from a circuit justice or judge. 28 17 U.S.C. § 2253(c)(1)(A); see also United States v. Asrar, 116 F.3d 1268, 1269-70 (9th Cir. 18 1997) (holding that district courts retain authority to issue certificates of appealability 19 under AEDPA). A certificate of appealability is authorized “if the applicant has made a 20 substantial showing of the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). To meet 21 this threshold, a petitioner must show that: (1) the issues are debatable among jurists of 22 reason, (2) that a court could resolve the issues in a different manner, or (3) that the 23 questions are adequate to deserve encouragement to proceed further. Lambright v. Stewart, 24 220 F.3d 1022, 1024-25 (9th Cir. 2000) (citations omitted). 25 Based on this Courts review of the magistrate judge’s Report, and the entire record 26 in this matter, the Court finds no reasonable jurists would find it debatable that Petitioner 27 has failed to show an entitlement to federal habeas corpus relief. Petitioner has not made 28 1 ||the requisite substantial showing of the denial of a constitutional right. Accordingly, 2 || Petitioner’s application for a Certificate of Appealability is DENIED. 3 CONCLUSION AND ORDERED 4 For the reasons set forth above, IT IS HEREBY ORDERED: 5 1. Petitioner’s objections to the Magistrate Judge’s report and 6 recommendations are OVERRULED; 7 2. The Magistrate Judge’s report and recommendation is ADOPTED in 8 its entirety; 9 3. The instant petition is DENIED WITH PREJUDICE; 10 4. Petitioner is DENIED a Certificate of Appealability. 11 IT IS SO ORDERED. 12 13 14 || DATED: May 6, 2020 15 16 n. John A. Houston 17 Ynited States District Judge 18 19 20 21 22 23 24 25 26 27 28