Turner v. Tampkins

MICHAEL C. TURNER, Petitioner, v. C. TAMPKINS, Respondent.

No. 2:20-cv-01088 TLN KJN P

United States District Court, E.D. California

April 27, 2022

FINDINGS & RECOMMENDATIONS

KENDALL J. NEWMAN UNITED STATES MAGISTRATE JUDGE

I. Introduction

Petitioner is a state prisoner, proceeding without counsel, with an application for a writ of habeas corpus pursuant to 28 U.S.C § 2254. Petitioner challenges his October 26, 2017, conviction for meeting a minor for lewd purposes and contacting a minor with the intent to commit a sexual offense, with a prior strike conviction. Petitioner was sentenced to eight years in state prison. Petitioner claims: (1) improper jury instructions; (2) prosecutorial misconduct; (3) insufficient evidence; (4) insufficient reasons to impose the upper term sentence; (5) lower court's ruling was contrary to clearly established law; and (6) ineffective assistance of counsel. After careful review of the record, this court concludes that the petition should be denied.

II. Procedural History

On October 26, 2017, a jury found petitioner guilty of meeting a minor for lewd purposes and contacting a minor with the intent to commit a sexual offense, with a prior strike conviction.

On November 28, 2017, petitioner was sentenced to eight years in state prison.

Petitioner appealed the conviction to the California Court of Appeal, Third Appellate District. The Court of Appeal remanded the case for resentencing, but otherwise affirmed the conviction. (ECF No. 21-10.)

Petitioner filed several state habeas petitions, which the state courts denied. (ECF Nos. 21-14 to 21-24.) He filed the instant petition on April 7, 2020. (ECF No. 1.) Respondent filed an answer on November 3, 2020. (ECF No. 20.) Petitioner filed a traverse on February 8, 2021. (ECF Nos. 27 & 28.)

III. Facts^[1]

After independently reviewing the record, this court finds the appellate court's summary accurate and adopts it herein. In its unpublished memorandum and opinion affirming petitioner's judgment of conviction on appeal, the California Court of Appeal for the Third Appellate District provided the following factual summary:

We relate the facts of defendant's crimes here and the procedural background relevant to the issues on appeal when addressing defendant's claims.

In May 2017, defendant posted an advertisement in the casual encounters section of Craigslist. The post described defendant as a 47-year-old man who recently moved to Platina from the Bay Area and had had no luck meeting anyone. Defendant was “just looking to meet someone who is open to come hang out for a night or two, eat, [watch] movies, listen to music, have a drink or two, and get naked in between it all.” Defendant ended his post saying, “Other than that I handle myself well when we are slapping sweat and I have been known to really get along well with younger women:) Let me know.” He attached several pictures to the post showing his home and himself both clothed and nude. Several of the pictures depicting defendant in the nude showed him with an erection.

Tehama County Bureau of Investigations Officer Heidi Curtis was monitoring Craigslist's posts for adults attempting to contact minors. Defendant's assertion that he got along well with younger women alerted Officer Curtis that defendant may be attempting to contact minors for sexual encounters, requiring further investigation. So, Officer Curtis sent defendant a message through Craigslist posing as “Maddie Paulson.” The message read, “I'm for real ... you get along with younger girls huh? ? ?” and included a phone number where “Maddie” could be reached. Thereafter, defendant texted “Maddie” and the two engaged in a several-week-long texting conversation.

In “Maddie's” initial texts she indicated that she was young and in high school. She told defendant she played percussion in the band and that he could not text her after 11:00 p.m. because her mother would freak out. Defendant responded, “Well we dont want mom freaking out now do we:).” Over the course of the next few text conversations, defendant and “Maddie” assured each other they “wouldnt put [each other] off.” Defendant then asked “Maddie” whether she “had the experience of a boyfriend yet:)” and to send him a G-rated picture so he could see with whom he was texting. “Maddie” sent defendant a photo of a young blond woman baring cleavage and wearing heavy makeup. The photo would not immediately load on defendant's phone, so he responded “Its cool Maddie. I am very patient and I think about you all day so I am confident that you will look very pleasingtto [sic] my eyes:).” Defendant later gave “Maddie” his e-mail address so she would send photos of herself there as well.

Around this same time, defendant drove to Red Bluff, where “Maddie” lived, and texted her that he wished he “could have picked her up from school:).” After “Maddie” said she was at the movies and was sorry to miss him, defendant replied, “Its cool. I was mostly just playing. I didnt expect you would ever want to meet for the first time that way although I would be good with it.”

The next day, defendant texted “Maddie” again. He told her his plans for the weekend and then continued, “Of course I am always open to coming down to Red Bluff if you can get away for a few minutes:).” “Maddie” responded that she was not available but would be the next weekend and wondered if they could “Netflix and chill? ?” “Maddie” also asked defendant the age of the youngest girl he had ever hung out with. Defendant responded that he had the capability to stream video and they could “Netflix and chill however long you like:).” Defendant also told “Maddie” he had spent time with a 16 year old but they never touched sexually because of her age. “Maddie” told defendant she was 15 years old and clarified that “Netflix and chill” meant to “hook up.” Defendant responded, “We can talk about that after we meet. Being that you say you are under 18 we need to keep our texts PG:) What we discuss in private is our business.” He ended this conversation “Goodnite pretty young Maddie:).”

In the next conversation, defendant told “Maddie” he wanted to meet her. He said he knew he liked her because he would usually stop texting with women who did not respond to him promptly, but instead he waited for her responses “becuz I want you.” In the next text conversation, defendant again asked “Maddie” if he could meet her. She said she could get away over the weekend but he would need to pick her up. Defendant agreed. He told her that because she had less freedom of movement, he could work around her schedule and they could meet for “coffee or whatever just to make that first connection:).” “Maddie” responded she could “meet anyone for coffee, [but wanted] to do more than that.” Defendant later indicated he did not receive that text message and “Maddie” clarified, “You know what your ad said. That's what I want.” Defendant responded “Ok then Maddie. When would you like to meet? Bottom line:).”

The conversation continued with “Maddie” saying, “Depends on how long you want me for. If it's overnight itll have to be a weekend so my mom thinks I'm at a friends house. I'm not allowed to spend the night with friends on school nights.” Defendant responded he wanted “Maddie” to spend the night, and “[a]nything else would be a tease:).” Defendant also assured “Maddie” he had condoms when she asked. The two then agreed for defendant to pick up “Maddie” on either Thursday or Friday so that they could spend the weekend together.

As the day approached, the two agreed to meet at the old Walmart in Red Bluff at 9:00 a.m. on Friday morning. The night before the two were to meet, defendant checked in with “Maddie”. “Maddie” said she still wanted to meet defendant but was nervous because of the size of his erection in the photos he attached to his Craigslist post. She asked him whether he knew “how to be easy, ” to which he responded “Of course Maddie. Being easy makes it good and being good makes them come back:).”

After waiting for “Maddie” in the parking lot where he agreed to meet her, defendant became suspicious and drove away. He was arrested during a traffic stop shortly after. Condoms were found upon a search of defendant's home.

(ECF No. 21-10 at 2-4.)

IV. Standards for a Writ of Habeas Corpus

An application for a writ of habeas corpus by a person in custody under a judgment of a state court can be granted only for violations of the Constitution or laws or treaties of the United States. 28 U.S.C. § 2254(a). A federal writ is not available for alleged error in the interpretation or application of state law. See Wilson v. Corcoran, 562 U.S. 1, 5 (2010); Estelle v. McGuire, 502 U.S. 62, 67-68 (1991).

Title 28 U.S.C. § 2254(d) sets forth the following standards for granting federal habeas corpus relief:

An application for a writ of habeas corpus on behalf of a person in custody pursuant to the judgment of a State court shall not be granted with respect to any claim that was adjudicated on the merits in State court proceedings unless the adjudication of the claim -

(1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States; or. (2) resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding.

28 U.S.C. § 2254(d).

For purposes of applying § 2254(d)(1), “clearly established Federal law” consists of holdings of the Supreme Court at the time of the last reasoned state court decision. Thompson v. Runnels, 705 F.3d 1089, 1096 (9th Cir. 2013) (citing Greene v. Fisher, 132 S.Ct 38, 44-45 (2011)); Stanley v. Cullen, 633 F.3d 852, 859 (9th Cir. 2011) ...