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IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF CALIFORNIA

THOMAS DOUGLAS McELVEEN,

Petitioner,

 vs.

CALIFORNIA DEPARTMENT OF 

CORRECTIONS &

REHABILITATION,

Respondent. 

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No. C 09-1846 CRB (PR)

ORDER DENYING 

PETITION FOR A WRIT OF

HABEAS CORPUS

Petitioner, a former California state prisoner, seeks a writ of habeas corpus

under 28 U.S.C. § 2254 challenging a conviction, probation revocation and 

sentence from Marin County Superior Court. For the reasons set forth below, a

writ of habeas corpus will be denied.

STATEMENT OF THE CASE

On January 26, 2007, a jury convicted petitioner of committing felony

petty theft with a prior (Cal. Pen. Code § 666) and misdemeanor battery (Cal.

Pen. Code § 242). On February 26, 2007, he was sentenced to two years in state

prison. Petitioner's probation in another case was also revoked and terminated.

Petitioner unsuccessfully appealed his conviction and sentence to the

California Court of Appeal and the Supreme Court of California, which on

August 27, 2008 denied review of a petition raising one of the claims raised here. 

Petitioner did not seek further review from the state courts.

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On April 28, 2009, petitioner filed a petition for a writ of habeas corpus

under § 2254 in this court. The court found that the petition appeared to state

cognizable claims under § 2254, when liberally construed, and ordered

respondent to show cause why a writ of habeas corpus should not be granted. 

Respondent filed an answer to the order to show cause. Petitioner did not file a 

traverse. 

 STATEMENT OF THE FACTS

The California Court of Appeal summarized the facts of the case as

follows:

Walter Henriquez, a security guard at the Safeway grocery store in

Mill Valley, was on duty in plain clothes on October 28, 2006. He

saw defendant place a bottle of laundry detergent and a package of

hair dye into his shopping cart and exit the store without paying for

the items. Henriquez confronted defendant in the parking lot and

accompanied him back to the store. Once inside the store,

defendant pushed his shopping cart aside and attempted to leave.

Henriquez tried to detain defendant and a struggle ensued, during

which defendant struck Henriquez several times. Another security

guard and two paramedics who were in the store helped Henriquez

subdue defendant so Henriquez could place him in handcuffs. The

items defendant took from the store were valued at $31.87. 

People v. McElveen, No. A117485, 2008 WL 2445499, at **1 (Cal. Ct. App.

June 18, 2008).

STANDARD OF REVIEW

This court may entertain a petition for a writ of habeas corpus "in behalf

of a person in custody pursuant to the judgment of a State court only on the

ground that he is in custody in violation of the Constitution or laws or treaties of

the United States." 28 U.S.C. § 2254(a).

The writ may not be granted with respect to any claim that was

adjudicated 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

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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." Id. § 2254(d).

"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 [the Supreme] 

Court on a question of law or if the state court decides a case differently than

[the] Court has on a set of materially indistinguishable facts." Williams v.

Taylor, 529 U.S. 362, 412-13 (2000). "Under the 'reasonable application clause,'

a federal habeas court may grant the writ if the state court identifies the correct

governing legal principle from [the] Court's decisions but unreasonably applies

that principle to the facts of the prisoner's case." Id. at 413.

 "[A] federal habeas court may not issue the writ simply because the 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." Id. at 411. A federal habeas court

making the "unreasonable application" inquiry should ask whether the state

court's application of clearly established federal law was "objectively

unreasonable." Id. at 409. 

The only definitive source of clearly established federal law under 28

U.S.C. § 2254(d) is in the holdings (as opposed to the dicta) of the Supreme

Court as of the time of the state court decision. Id. at 412; Clark v. Murphy, 331

F.3d 1062, 1069 (9th Cir. 2003). While circuit law may be "persuasive authority"

for purposes of determining whether a state court decision is an unreasonable

application of Supreme Court precedent, only the Supreme Court's holdings are

binding on the state courts and only those holdings need be "reasonably" applied. 

Id.

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A petition for a writ of habeas corpus may not be granted unless the

petitioner has exhausted state judicial remedies by presenting the highest state

court available with a fair opportunity to rule on the merits of each and every

claim he seeks to raise in federal court. 28 U.S.C. § 2254(b)-(c); Rose v. Lundy,

455 U.S. 509, 515-16 (1982). But a petition may be denied on the merits even if

unexhausted. 28 U.S.C. § 2254(b)(2). 

CLAIMS & ANALYSIS

Petitioner raises three claims for relief under § 2254: (1) denial of his

federal constitutional right to be present during all critical phases of trial when

the trial court allowed a jury "readback" outside his presence; (2) denial of his

federal constitutional right to notice of the allegation upon which probation was

revoked; and (3) denial of his federal due process and equal protection rights as a

result of the trial court's failure to award pre-sentencing custody credits. 

1. Jury Readback

Petitioner claims that he was denied his federal constitutional right to be

present at all critical phases of trial when the trial court allowed a jury readback

outside of his presence. The claim is exhausted because petitioner included it in

his petition for direct review to the Supreme Court of California.

The California Court of Appeal rejected petitioner's claim for lack of

merit, explaining:

Defendant contends his absence from the readback of testimony to

the jury was in violation of his federal constitutional right to be

present at all critical stages of trial. Defendant asserts his presence

was critical because the court allowed the entire prosecution case

to be repeated through the readback without an opportunity for

[him] to gauge the propriety of the readback so as to ensure

fairness. We reject defendant's negative characterization of the

trial court's careful handling of the readback and find no violation

of his constitutional rights in the procedure adopted and agreed to

by him and counsel. 

. . . .

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Patently, defendant's Sixth Amendment rights were not violated by

a readback of testimony because his opportunity to cross-examine

had been fully satisfied during the witnesses' live testimony, which

was not altered or added to during the readback. Regarding his

due process claims, we first note that the [Supreme Court of the

United States] has not addressed the issue of whether a readback is

a critical stage of trial. However, our own Supreme Court has on

several occasions rebuffed the notion that a defendant's presence is

required at a readback of testimony under considerations of due

process. . . . 

Here, we conclude defendant has failed to establish that a fair and

just hearing was thwarted by his absence at the readback of

testimony. First, defendant, as well as his counsel, expressly

agreed in open court to forego their presence during the readback

of the testimony. In addition, the trial court, after consulting with

defendant and his counsel, carefully admonished the court reporter

to readback only admissible testimony and to omit questions to

which an objection was sustained and not to read any testimony

there was a motion to strike granted on. Also, the readback was

limited to the key prosecution witness and the key defense witness. 

Accordingly, defendant suffered no deprivation of the due process

right[] . . . to be present at a critical phase of the trial. 

McElveen, 2008 WL 2445499, at **4-5 (citations, internal quotations and

footnotes omitted). 

The Ninth Circuit has held that criminal defendants have a constitutional 

right to be present at jury readbacks. La Crosse v. Kernan, 244 F.3d 702, 707-08

(9th Cir. 2001) (citing Hegler v. Borg, 50 F.3d 1472 (9th Cir. 1995), and United

States v. Kupau, 781 F.2d 740 (9th Cir. 1986)). However, the Supreme Court has

never adopted La Crosse’s analysis. Consequently, it cannot be said that a state

court's rejection of such a claim "was contrary to or an unreasonable application

of clearly established federal law" under 28 U.S.C. § 2254(d)(1). Moreover, the

record makes clear that petitioner waived his right to be present at the readback

voluntarily, knowingly, intelligently, with the assistance of counsel, and with

clear information on how the readback would be conducted. See Campbell v.

Wood, 18 F.3d 662, 671 (9th Cir. 1994) (en banc) (defendant can waive right to

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1

Had there been no knowing waiver, of course, the result might be different. The Ninth

Circuit held in Fisher v. Roe, 263 F.3d 906, 916-917 (9th Cir. 2001), that where neither

defendant nor counsel were present and were not notified of a readback, a state court’s rejection

of a federal claim may be an unreasonable application of Supreme Court precedent that

defendant is entitled to be present at critical stages of trial. See id. at 914-17. That is not what

happened here.

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personal presence provided he does so voluntarily, knowingly and intelligently).1

Petitioner is not entitled to federal habeas relief on his claim that he was denied

his right to be present during all critical phases of trial when the trial court

allowed a jury readback outside his presence.

2. Revocation of Probation

 Petitioner claims that he was denied his federal constitutional right to

notice of the allegation upon which his probation was revoked. The claim is

unexhausted because petitioner never presented it to the Supreme Court of

California. It is clearly without merit, however.

The California Court of Appeal rejected petitioner's claim for lack of

merit. It summarized and responded to his argument as follows:

Defendant contends the trial court abused its discretion in

sustaining the petition for revocation of probation because there

was no evidence that appellant violated the conditions alleged in

the petition to revoke probation. Defendant notes that the petition

for revocation filed by the probation officer on December 4, 2006

alleged he had violated probation by failing to report regularly as

directed by the probation officer, testing positive for cocaine and

failing to enroll in a batterer's treatment program. Defendant

asserts there was no evidence presented on these alleged violations

and therefore the trial court abused its discretion by amending the

petition sub silentio to permit revocation for failure to live a law

abiding life on the basis of his current offenses. Defendant further

contends he was denied his federal due process right to notice of

the charge of failing to be a law-abiding citizen as a basis for

revocation of probation. 

The procedural limits "on the revocation of the conditional liberty

created by probation" imposed by the Due Process Clause of the

Fourteenth Amendment are as follows: "[A] final revocation of

probation must be preceded by a hearing. The probationer is

entitled to written notice of the claimed violations of his probation;

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disclosure of the evidence against him; an opportunity to be heard

in person and to present witnesses and documentary evidence; a

neutral hearing body; and a written statement by the factfinder as

to the evidence relied on and the reasons for revoking probation.

[Citation.] The probationer is also entitled to cross-examine

adverse witnesses, unless the hearing body specifically finds good

cause for not allowing confrontation. Finally, the probationer has a

right to assistance of counsel in some circumstances." (Black v.

Romano, (1985) 471 U.S. 606, 610, 611-12.) These procedures

"protect the defendant against revocation of probation in a

constitutionally unfair manner." (Id. at p. 613.)

The record reflects that defendant received not only adequate

notice of the basis for revocation but also the full panoply of

procedural protections noted above. On March 17, 2008 we

granted respondent's motion to augment the record with a petition

for revocation of probation in case number SC133009A filed by

the district attorney's office on October 30, 2006. The sole basis

alleged in the district attorney's petition for revocation of probation

was defendant's failure to lead a law abiding life due to his current

offense of committing petty theft with a prior on October 28, 2006.

The petition states that arraignment on the petition is set for

October 30, 2006, at 1:30 p.m., and indicates a copy of the petition

was sent to defendant.

Defendant, however, asserts respondent has failed to demonstrate

he was provided adequate and proper notice of the law-abiding

citizen violation. That assertion finds no support in the record. 

First, we take judicial notice of the docket in Superior Court in

Case No. SC133009A obtained on the court's own motion from the

clerk's office of the Marin County Superior Court. The docket

shows that defendant was arraigned on the district attorney's

petition on October 30, 2006, and that he appeared with counsel on

November, 2 2006, and denied the allegations of the petition.

If that alone was not enough to demonstrate adequate notice, the

record shows the parties knew a petition to revoke had been filed

by the district attorney as well as by the probation department.

Thus, when defendant appeared on December 6, 2006, for a bail

hearing, arraignment on the information, and arraignment on the

petition, to revoke filed by the probation department on December

4, 2006, the trial court referred to the December 4 petitions as the

"newly filed probation petitions." The court state[d]: "My thought,

Counsel, would be as to the People's petitions that are filed . . .

which appear to me to be essentially the same allegations as the

trial issues, those could be heard contemporaneous[ly] . . . with the

trial subject to any additional evidence either side may wish to

present. Is that agreeable?" After conferring with defendant,

defense counsel requested that "as to the probation petitions, we

would ask that those trail." The trial court concurred, noting "they

involve different allegations," but added, "But the People's

petitions on the same subject as the trial should be heard, I believe,

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contemporaneous with the trial . . . ." Defense counsel agreed.

In addition, on the morning trial court commenced, the court

reminded defendant that "the District Attorney is basing the

violations on the same evidence that's going to be presented here at

trial." Once more, after the jury had been discharged, the court told

defendant it was "not proceeding on the failure to enroll in the

program or the testing. We don't have anything on that." In sum,

the record demonstrates defendant had notice of the basis for

revocation and therefore the trial court did not abuse its discretion

in revoking probation for defendant's failure to lead a law abiding

life. Accordingly, defendant's related constitutional due process

claim also fails. 

McElveen, 2008 WL 2445499, at **5-6 (emphasis in original).

Before probation may be revoked, a probationer has a due process right

to: (1) written notice of the claimed violations; (2) disclosure to the probationer

of the evidence against him; (3) an opportunity to be heard in person and to

present witnesses and documentary evidence; (4) confront and cross-examine

adverse witnesses; (5) a neutral and detached hearing body; and (6) a written

statement as to the evidence relied upon and reasons for revoking probation. 

Gagnon v. Scarpelli, 411 U.S. 778, 786 (1973). 

The California Court of Appeal reasonably rejected petitioner's due

process claim because the record shows petitioner was provided the procedural

protections guaranteed a probationer facing a petition to revoke. See 28 U.S.C. §

2254(d); Gagnon, 411 U.S. at 786. Petitioner appeared with counsel at

arraignments on the district attorney's and the probation department's separate

petitions to revoke his probation. The trial court informed petitioner that it would

only proceed on the district attorney's petition to revoke for failure to lead a lawabiding life and that his trial on the petty theft and battery charges would

simultaneously serve as the evidentiary hearing on the probation violation. No

evidentiary hearing was held on the probation department's petition because it

was rendered moot by petitioner's conviction for petty theft and battery, which by

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default proved his failure to lead a law-abiding life violation. Petitioner knew

that the evidence presented at his trial was also the evidence presented as proof of

his failure to lead a law-abiding life probation violation, and he had opportunity

to cross-examine adverse witnesses, introduce evidence, call witnesses in his

favor and present his defense in front of a neutral body. Petitioner is not entitled

to federal habeas relief on his claim that he was denied due process in connection

with the revocation of his probation. See 28 U.S.C. § 2254(d).

3. Pre-sentencing Custody Credits 

Petitioner claims that he was denied due process when the trial court did

not award him pre-sentencing custody credits on his probation violation

conviction. The claim is unexhausted because petitioner did not present it to the

Supreme Court of California. It is clearly without merit, however.

The California Court of Appeal rejected petitioner's claim as follows:

Defendant states that at the sentencing hearing in case number

SC133009A, the trial court placed him on probation on condition,

inter alia, that he serve 60 days in county jail and participate in a

residential treatment program. Defendant contends that the trial

court should have awarded custody credits for those 60 days he

spent in county jail, as well as credits for time he spent in a

residential treatment program, against the term imposed in case

number SC133009A for violation of probation.

Credit for time served is governed by section 2900.5, which

provides that "[i]n all felony and misdemeanor convictions ... when

the defendant has been in custody, including, but not limited to,

any time spent in a jail, . . . rehabilitation facility . . . or similar

residential institution, all days of custody of the defendant,

including days served as a condition of probation in compliance

with a court order, and including credited to the period of

confinement pursuant to Section 4019 [credit for good behavior],

shall be credit upon his or her term of imprisonment. . . . (§

2900.5, subd. (a) [italics added].)

In this instance, however, the trial court was not obligated to

calculate and award any further credits for prior custody and

treatment in connection with SC133009A because it did not

impose a term of imprisonment for violation of probation. Upon

revocation of probation in a case where, as here, imposition of

sentence was suspended and no sentence was ever imposed, a

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court is empowered to "pronounce judgment for any time within

the longest period for which the person might have been

sentenced." (§ 1203.2, subd. (c); see also Cal. Rule of Court

4.435(b)(1).) Alternatively, a court is also empowered to

"terminate the period of probation and discharge the person so

held" in the interests of justice when warranted by a probationer's

"good conduct and reform." (§ 1203.2, subd. (a).)

Here, the trial court did not pronounce judgment and impose a

term of imprisonment. Instead, the record shows the trial court

revoked and terminated probation and discharged the defendant,

based upon what it characterized as defendant's respectful and

courteous demeanor: "The respect that you have shown here says

that perhaps after serving what is really a fairly short sentence

now, that you might change your lifestyle and perhaps leaving

these probations in effect just put[s] all the more burden on your

mental state. [¶] At this time, it's the Court's opinion that we

relieve that burden. Your probations are terminated and the

remaining sentences will be served concurrently with the sentence

you are serving on this case. What that means is that when you get

out of prison, you don't have any more probation, you have served

your sentences. [¶] The only thing you have to worry about is your

parole [on the felony petty theft conviction]. . ." The court's

decision to terminate probation and discharge defendant is

reflected in the report and judgment court minute order in

SC133009A regarding the revocation proceeding, which states,

"Defendant is released from custody as to this action only."

In sum, because the trial court revoked and terminated defendant's

probation in case number SC133009A, and did not impose a term

of imprisonment for violation of the conditions of his probation in

that case, the trial court was not required to calculate sentencing

credits for prior periods of custody or treatment of a custodial

nature.

McElveen, 2008 WL 2445499, at **7-8.

The denial of pre-sentence custody credit under California Penal Code

section 2900.5 may constitute denial of a state-created liberty interest that is

protected by the Due Process Clause. See Robinson v. Marshall, 66 F.3d 249,

250 (9th Cir. 1995). But it is clear that petitioner is not entitled to relief here.

The California Court of Appeal determined that petitioner was not entitled

to pre-sentencing custody credits under section 2900.5 because he was not

sentenced to a term of imprisonment for his probation violation, thus there was

no sentence on which to apply the custody credits. The only term of

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imprisonment petitioner received was for the petty theft and battery charges, to

which the pre-sentencing custody credits at issue could not be attached. This

court is bound by the California Court of Appeal's interpretation of California's

pre-sentence custody credit law. See Bradshaw v. Richey, 546 U.S. 74, 76

(2005) (state court's interpretation of state law, including one announced on

direct appeal of challenged conviction, binds federal court sitting in habeas

corpus). Petitioner is not entitled to federal habeas relief on his pre-sentence

custody credit claim. 

CONCLUSION 

After a careful review of the record and pertinent law, the court is

satisfied that the petition for a writ of habeas corpus must be DENIED.

The clerk shall enter judgment in favor of respondent and close the file.

SO ORDERED.

DATED: July 1, 2010 

CHARLES R. BREYER

United States District Judge 

G:\PRO-SE\CRB\HC.09\McElveen, T1.merits.wpd

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