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28 1 Citations to “Ex.” are to the record lodged with the Court by the Attorney General.

IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF CALIFORNIA

DAVID A. JOHNSON, 

Petitioner,

 vs.

MIKE MARTEL, Warden, 

Respondent. /

No. C 09-0937 JSW (PR)

ORDER DENYING PETITION 

FOR WRIT OF HABEAS

CORPUS AND DENYING

CERTIFICATE OF

APPEALABILITY

This is a habeas corpus case filed pro se by a state prisoner pursuant to 28 U.S.C.

§ 2254. The court ordered respondent to show cause why the writ should not be granted. 

Respondent has filed an answer and a memorandum of points and authorities in support

of it, and has lodged exhibits with the court. Petitioner has responded with a traverse. 

For the reasons set out below, the petition is denied.

BACKGROUND

Petitioner was convicted of continuous sexual abuse of a child. See Cal. Penal

Code § 288.5. The jury also found to be true the allegation that he had served a prior

prison sentence. See id. § 667.5. He was sentenced to the upper term of sixteen years,

plus an additional consecutive year for the prior prison term enhancement. His

conviction and sentence were affirmed by the California Court of Appeal and the

California Supreme Court denied his petition for review. (Ex. C, I.)1

 His state habeas

petitions were denied. (Pet. at 3-4.)

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2

The facts of the crime itself have little bearing on the issues Petitioner raises;

those facts relevant to each issue will be set out in the appropriate section below.

STANDARD OF REVIEW

A district court may not grant a petition challenging a state conviction or sentence

on the basis of a claim that was reviewed on the merits in state court unless the state

court's 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). The first prong applies both to questions

of law and to mixed questions of law and fact, Williams (Terry) v. Taylor, 529 U.S. 362,

407-09 (2000), while the second prong applies to decisions based on factual

determinations, Miller-El v. Cockrell, 537 U.S. 322, 340 (2003).

A state court decision is “contrary to” Supreme Court authority, that is, falls

under the first clause of § 2254(d)(1), only if “the state court arrives at a conclusion

opposite to that reached by [the Supreme] Court on a question of law or if the state court

decides a case differently than [the Supreme] Court has on a set of materially

indistinguishable facts.” Williams (Terry), 529 U.S. at 412-13. A state court decision is

an “unreasonable application of” Supreme Court authority, falling under the second

clause of § 2254(d)(1), if it correctly identifies the governing legal principle from the

Supreme Court’s decisions but “unreasonably applies that principle to the facts of the

prisoner’s case.” Id. at 413. The federal court on habeas review may not issue the writ

“simply because that court concludes in its independent judgment that the relevant statecourt decision applied clearly established federal law erroneously or incorrectly.” Id. at

411. Rather, the application must be “objectively unreasonable” to support granting the

writ. Id. at 409. 

Under 28 U.S.C. § 2254(d)(2), a state court decision “based on a factual

determination will not be overturned on factual grounds unless objectively unreasonable

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28 2 Miranda v. Arizona, 384 U.S. 436, 473-74 (1966).

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in light of the evidence presented in the state-court proceeding.” Miller-El, 537 U.S. 322

at 340; see also Torres v. Prunty, 223 F.3d 1103, 1107 (9th Cir. 2000).

When there is no reasoned opinion from the highest state court to consider the

petitioner’s claims, the court looks to the last reasoned opinion. See Ylst v. Nunnemaker,

501 U.S. 797, 801-06 (1991); Shackleford v. Hubbard, 234 F.3d 1072, 1079, n. 2 (9th

Cir.2000). 

DISCUSSION

As grounds for habeas relief, Petitioner asserts that: (1) his statements to the

police were involuntary and were obtained in violation of his Miranda2

 rights; (2)

admission of certain inflammatory evidence violated his due process rights; and (3) his

Sixth Amendment rights were violated at sentencing. 

I. Statements to Police

Petitioner’s first claim is that because his statements to the police were

involuntary and were obtained in violation of his Miranda rights, they should not have

been admitted at trial. His pretrial motion to suppress was denied. The court of appeal

set out the facts of this claim:

Detective Collins and Detective Mackenzie interviewed defendant

while he was already in custody on an unrelated issue. During this interview,

defendant made several damaging admissions, including that, when the

victim, Jane Doe, was 12 years old, he had masturbated in front of her four

to six times, and had touched her breast four to seven times. He stated that

when that happened, he would say to himself, “[W]hoa, Dave,” and would tell

Jane that what they were doing was not right. He would also say to himself:

“I wish she wasn't my daughter, and I wish she was over 18.” He stated that

he hated himself for what he had done, and expressed a desire to be in

therapy, but he also felt that Jane had deliberately exposed herself to him.

People v. Johnson, 2007 WL 2783650, *1 n.1 (Cal. App. 2007).

At the hearing on the motion to suppress, Detective Collins testified

that he and Detective Mackenzie met defendant in an interview room at the

Contra Costa County jail. Collins identified himself and Mackenzie as police

officers and told defendant they wanted to interview him. Collins did not say

why they wanted to interview him, but did say that he needed to read

defendant his Miranda rights. Collins read defendant his Miranda rights from

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a department-issued card. He asked defendant whether he understood those

rights and wrote down his response, which was, “Yeah.” Collins also asked

whether, having those rights in mind, he nonetheless wished to talk, and again

defendant responded, “Yeah .” Defendant then answered all questions without

objection or expression of any misunderstanding of his rights.

Defendant testified that Detectives Collins and Mackenzie told him

they were investigating a friend of his, Mr. Martinez, who had also molested

Jane Doe. He acknowledged that Collins read him his Miranda rights, and that

defendant stated he was willing to waive those rights and talk. Nevertheless,

he did not really understand these rights, due to a lack of education. He “may

have mentioned ... [d]o I need an attorney?” He concluded he did not, because

he was told he was not in any trouble, and they were just investigating. He

also testified that he “thought” Collins informed him they already interviewed

Jane's mother.

On cross-examination, defendant admitted that he understood his right

to remain silent and to an attorney, and that an attorney would be appointed

if he could not afford one. Although he initially testified he could not

understand the warning that anything he said could and would be used against

him, he later admitted that he did understand these words, and that he had

received the same warning in similar words in another case where he pleaded

guilty to a felony. He also acknowledged that Detective Collins did not

threaten him.

In rebuttal, Detective Collins testified that defendant never asked

whether he needed a lawyer. The court found defendant was advised of his

Miranda rights, and that the waiver of Miranda rights and the subsequent

admissions were voluntary.

Id. at *1-2. 

The court of appeal found “that defendant was advised of, and understood, his

Miranda rights, and that no police coercion induced the waiver or the subsequent

admissions, and no other circumstances rendered the waiver or subsequent admissions

involuntary.” Id. at *2. 

A. Miranda

Petitioner’s argument here and in state court was that his Miranda waiver was

 involuntary because the interrogators fooled him by claiming that they were

investigating Martinez. The court of appeal held that the “evidence was in conflict

concerning what Collins told defendant: Defendant testified that Collins told him he was

investigating Martinez, but Collins testified that he did not tell defendant why he wanted

to interview him, and told him only that because he was in custody he was going to read

him his rights.” Id. The court noted that under California law it was required to “‘accept

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the trial court's resolution of disputed facts and inferences, and its evaluations of

credibility, if supported by substantial evidence.’” Id. ( quoting People v. Boyette, 29

Cal.4th 381, 411 (2002)). The court of appeal accepted the trial court’s implicit finding

in favor of the officer’s version – that he did not tell Petitioner why he was being

questioned – because it was supported by substantial evidence. Id. 

It then found that:

Defendant's own testimony establishes that, despite his lack of

education, he did understand his Miranda rights and the consequences of

waiving them. Although he initially generally asserted that he had trouble

understanding these rights, under more specific questioning he admitted he

understood his right to remain silent and to an attorney, and that an attorney

would be appointed if he could not afford one. Similarly, although he initially

testified he could not understand the warning that anything he said could and

would be used against him, he later admitted that he did understand these

words, and that he had received the same warning in similar words in another

case where he pleaded guilty to a felony. Finally, despite his uncertainty

about whether he should invoke his right to counsel, he acknowledged that he

did not believe he was in trouble, and did in fact agree to waive these rights

and talk to the police. . . . We conclude that defendant voluntarily knowingly

and intelligently waived his Miranda rights, and that his subsequent

admissions were voluntary.

Id. at *3. 

Once properly advised of his or her rights, an accused may waive them

voluntarily, knowingly and intelligently. See Miranda, 384 U.S. at 475. There are two

distinct dimensions of waiver: “waiver must be ‘voluntary in the sense that it was the

product of a free and deliberate choice rather than intimidation, coercion, or deception,”

and ‘made with a full awareness of both the nature of the right being abandoned and the

consequences of the decision to abandon it.’” Berghuis v. Thompkins, 130 S.Ct. 2250,

2260 (2010) (quoting Moran v. Burbine, 475 U.S. 412, 421 (1986)); Cox v. Del Papa,

542 F.3d 669, 675 (9th Cir. 2008) (distinction between voluntariness element and

knowing and intelligent element is important). The validity of a waiver of Miranda

rights depends upon the totality of the circumstances, including the background,

experience and conduct of the defendant. United States v. Bernard S., 795 F.2d 749, 751

(9th Cir. 1986). The government must prove waiver by a preponderance of the evidence. 

Colorado v. Connelly, 479 U.S. 157, 168-69 (1986). 

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As to voluntariness of the waiver, Petitioner’s contention is that the waiver was

not voluntary, was coerced, because he was told that the officers were investigating

Martinez. The court of appeal, however, found as a matter of fact that the officers did

not tell him why they were questioning him, and concluded that they did not

misrepresent the purpose of the questioning. Johnson, 2007 WL 2783650 at *2. Given

the conflicting testimony – Petitioner’s that an officer told him they were investigating

Martinez, and Officer Collins’ that they did not tell him why they were questioning him

– this finding of fact was reasonable. Because Petitioner has not established the

unreasonableness of the court of appeal’s finding, his argument fails. His contention that

his Miranda waiver was not voluntary cannot be the basis for habeas relief here. See 28

U.S.C. § 2254(d)(2); Miller-El, 537 U.S. 322 at 340 (a state court decision “based on a

factual determination will not be overturned on factual grounds unless objectively

unreasonable in light of the evidence presented in the state-court proceeding.”). 

As to Petitioner’s contention that the waiver was not knowing and intelligent, in

the portion of the opinion quoted above the court of appeal set out Petitioner’s

testimony that he did in fact understand the warnings, and that, having previously been

convicted of a felony, he knew the possible consequences. Id. at *3. He has not

attempted to challenge the accuracy of the court of appeal’s recitation of the record. 

Given this, the court’s conclusion that the waiver was knowing, voluntary, and

intelligent was correct. 

B. Voluntariness of Statements

Involuntary confessions in state criminal cases are inadmissible under the

Fourteenth Amendment. Blackburn v. Alabama, 361 U.S. 199, 207 (1960). Absent

police misconduct causally related to the confession, there is no basis for concluding that

a confession was involuntary in violation of the Fourteenth Amendment. Colorado v.

Connelly, 479 U.S. 157, 167 (1986). Here, the basis for Petitioner’s contention that he

was the victim of police coercion was the purported statement by the interrogators that

they were investigating Martinez. For the reasons discussed in the section above, the

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court of appeal’s finding that there was no such statement was not unreasonable; in the

absence of that fact, Petitioner’s claim as to voluntariness collapses.

C. Conclusion

 Petitioner’s Miranda waiver was voluntary, knowing, and intelligent. His

statements to police were voluntary. The trail court thus did not violate Petitioner’s

rights by admitting the statements into evidence. This claim is without merit. 

II. Admission of Propensity Evidence

Petitioner contends that certain testimony by the victim was propensity evidence

and should not have been admitted.

The court of appeal set out the background for this claim:

Jane testified that she was frightened of defendant because of his

appearance and his bad reputation. Jane's mother had told her he was a violent

person and that he was connected to the Hell's Angels. She also told Jane that

defendant had spent time in and out of custody, which scared Jane because

she knew that jails and prisons are “very tough.” Jane once saw defendant

jump on her mother and try to strangle her, and another time she overheard

her mother screaming at defendant to get away from her and called the police.

She had also seen defendant push over her baby sister, who was strapped into

a car seat, and leave her hanging upside down. Jane's mother told her about

another time when defendant threw the baby on the couch.

Johnson, 2007 WL 2783650 at *3. The trial court admitted this testimony as going to

the reason for Jane’s delay in telling anyone about the molestations, and gave a limiting

instruction to that effect. Id. at *4. It also gave a limiting instruction before the

testimony, noting that Jane’s testimony about what her mother had told her was not

offered for the truth of the matter. Id. 

The United States Supreme Court has stated that it is an open question whether

admission of propensity evidence violates due process. Estelle v. McGuire, 502 U.S. 62,

75 n.5 (1991). Based on the Supreme Court's reservation of this issue as an "open

question," the Ninth Circuit has held that a petitioner's due process right concerning the

admission of propensity evidence — such as evidence of Petitioner's prior bad acts here

— is not clearly established as required by AEDPA. Alberni v. McDaniel, 458 F.3d 860,

866-67 (9th Cir. 2006). Because there is no clearly established Supreme Court authority

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 Cunningham applies retroactively on collateral review only to convictions that

became final on direct review after the decision in Blakely on June 24, 2004. Butler v.

Curry, 528 F.3d 624, 639 (9th Cir. 2008). The conviction in this case became final in

early 2008, so Cunningham applies retroactively. 

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on this point, the court of appeal’s rejection of this claim was not contrary to, or an

unreasonable application of, clearly-established United States Supreme Court authority. 

III. Sixth Amendment Sentencing Claim

In Apprendi v. New Jersey, 530 U.S. 466 (2000), the Supreme Court held that any

fact that increases the penalty for a crime beyond the prescribed statutory maximum

must be submitted to a jury and proved beyond a reasonable doubt. Id. at 488-90. In

Blakely v. Washington, 542 U.S. 296 (2004), the Supreme Court explained that “the

statutory maximum for Apprendi purposes is the maximum sentence a judge may impose

solely on the basis of the facts reflected in the jury verdict or admitted by the defendant.” 

Id. at 303. This means that the “the middle term prescribed in California’s statutes, not

the upper term, is the relevant statutory maximum.” Cunningham v. California, 127 S.

Ct. 856, 868 (2007). In Cunningham, the Supreme Court, citing Apprendi and Blakely,

held that California’s Determinate Sentencing Law violates a defendant’s right to a jury

trial to the extent that it contravenes “Apprendi’s bright-line rule: Except for a prior

conviction, ‘any fact that increases the penalty for a crime beyond the statutory

maximum must be submitted to a jury, and proven beyond a reasonable doubt.’” Id.

(quoting Apprendi, 530 U.S. at 490).3

There is no constitutional error in this case for two reasons. First, the prior

conviction exception to the general rule in Apprendi, providing that the fact of a prior

conviction need not be pleaded in an indictment or proved to a jury beyond a reasonable

doubt, applies. Butler, 538 F.3d at 643 (citing Apprendi, 530, U.S at 490 and

Almendarez-Torres v. United States, 523 U.S. 224, 244 (1998)). The Ninth Circuit has

recognized that “the Supreme Court has not overruled the Almendarez-Torres exception

for prior convictions” and therefore the “obligation to apply the Almendarez-Torres

exception [remains] unless and until it is rejected by the Supreme Court.” Butler, 528

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F.3d at 643-44. Here, Petitioner was sentenced to the upper term based on several

aggravating factors – one of which was that he had three prior felony convictions. (Ex.

B at 874-77.) This basis for the upper term clearly falls into the “prior conviction”

exception from Almendarez-Torres and Apprendi. 

The fact that the trial court also found other aggravating circumstances – that Jane

was a vulnerable victim, that Jane was young, that Petitioner had taken advantage of a

position of trust; and that he has used force – does not alter this conclusion. “[U]nder

California law, only one aggravating factor is necessary to set the upper term as the

maximum sentence.” Butler, 528 F.3d at 641. “[I]f at least one of the aggravating

factors on which the judge relied in sentencing [petitioner] was established in a manner

consistent with the Sixth Amendment, [petitioner’s] sentence does not violate the

Constitution.” Id. at 643. Therefore, as it was within the trial court’s discretion to

sentence petitioner to the upper term based solely upon his prior convictions, Petitioner’s

sentence is constitutional irrespective of “[a]ny additional factfinding” with respect to

additional aggravating circumstances. Id. 

Because the trial court relied upon at least one factor “established in a manner

consistent with the Sixth Amendment,” the sentence Petitioner received did not violate

his Sixth Amendment rights.

C. Appealability

The federal rules governing habeas cases brought by state prisoners have recently

been amended to require a district court that denies a habeas petition to grant or deny a

certificate of appealability in the ruling. See Rule 11(a), Rules Governing § 2254 Cases,

28 U.S.C. foll. § 2254 (effective December 1, 2009). 

A petitioner may not appeal a final order in a federal habeas corpus proceeding

without first obtaining a certificate of appealability (formerly known as a certificate of

probable cause to appeal). See 28 U.S.C. § 2253(c); Fed. R. App. P. 22(b). A judge

shall grant a certificate of appealability "only if the applicant has made a substantial

showing of the denial of a constitutional right." 28 U.S.C. § 2253(c)(2). The certificate

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must indicate which issues satisfy this standard. See id. § 2253(c)(3). “Where a district

court has rejected the constitutional claims on the merits, the showing required to satisfy

§ 2253(c) is straightforward: the petitioner must demonstrate that reasonable jurists

would find the district court’s assessment of the constitutional claims debatable or

wrong.” Slack v. McDaniel, 120 S.Ct. 1595, 1604 (2000). 

This was not a close case. For the reasons set out above, jurists of reason would

not find the result debatable or wrong. A certificate of appealability will be denied. 

Petitioner is advised that he may not appeal the denial of a COA, but he may ask the

court of appeals to issue a COA under Rule 22 of the Federal Rules of Appellate

Procedure. See Rule 11(a), Rules Governing § 2254 Cases. 

CONCLUSION

The petition for a writ of habeas corpus is DENIED. A certificate of appealability

is DENIED. The Clerk shall close the file. 

IT IS SO ORDERED.

DATED: July 15, 2010 

 JEFFREY S. WHITE 

 UNITED STATES DISTRICT JUDGE

G:\PRO-SE\JSW\HC.09\Johnson937.RUL.wpd

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UNITED STATES DISTRICT COURT

FOR THE 

NORTHERN DISTRICT OF CALIFORNIA

DAVID A. JOHNSON,

Plaintiff,

 v.

MIKE MARTEL et al,

Defendant. /

Case Number: CV09-00937 JSW 

CERTIFICATE OF SERVICE

I, the undersigned, hereby certify that I am an employee in the Office of the Clerk, U.S.

District Court, Northern District of California.

That on July 15, 2010, I SERVED a true and correct copy(ies) of the attached, by placing

said copy(ies) in a postage paid envelope addressed to the person(s) hereinafter listed, by

depositing said envelope in the U.S. Mail, or by placing said copy(ies) into an inter-office

delivery receptacle located in the Clerk's office.

David A. Johnson

P.O. Box 409040

T17006

Ione, CA 95640

Dated: July 15, 2010

Richard W. Wieking, Clerk

By: Jennifer Ottolini, Deputy Clerk

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