(HC) Garcia v. Burton ( 2019 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 EDWARD VALASQUEZ GARCIA, No. 2:19-cv-0296 WBS KJN P 12 Petitioner, 13 v. FINDINGS AND RECOMMENDATIONS 14 ROBERT BURTON, 15 Respondent. 16 17 I. Introduction 18 Petitioner is a state prisoner, proceeding in forma pauperis and without counsel. Petitioner 19 filed a petition for writ of habeas corpus under 28 U.S.C. § 2254, raising two claims for relief. 20 First, petitioner claims that the trial court abused its discretion in refusing to strike his prior 21 conviction under People v. Romero, 13 Cal.4th 497 (1996) (“Romero”). Second, petitioner 22 alleges that the trial court’s restitution order was not supported by sufficient evidence. 23 Respondent moves to dismiss the petition on the grounds that petitioner did not exhaust his state 24 court remedies as to claim one, but also fails to state a valid claim for federal habeas relief as to 25 both claims one and two. Petitioner filed an opposition and moves to stay this action to return to 26 state court to exhaust claim one. Respondent filed a reply, and opposes the stay. 27 As set forth below, the undersigned recommends that the motion to dismiss be granted, 28 the motion for stay be denied, and the petition be dismissed. 1 II. Procedural Background 2 On October 15, 2015, in the Placer County Superior Court, a jury convicted petitioner of 3 two counts of assault with a deadly weapon in violation of California Penal Code Section 4 245(a)(1), and a number of sentencing enhancement allegations were found true. (ECF No. 10-1 5 at 1.) Petitioner was sentenced to a determinate state prison term of fifteen years on April 20, 6 2016. (Id.) 7 Petitioner filed a timely appeal, and the California Court of Appeal affirmed the judgment 8 on September 25, 2017. (ECF No. 10-2.) Petitioner filed a petition for review in the California 9 Supreme Court, which was denied on November 29, 2017, without comment. (ECF Nos. 10-3, 10 10-4.)1 11 Petitioner filed the instant petition on February 15, 2019. (ECF No. 1.) 12 III. Facts 13 In its unpublished memorandum and opinion affirming petitioner’s judgment of 14 conviction on appeal, the California Court of Appeal for the Third Appellate District provided the 15 following factual summary: 16 During a street brawl, [petitioner] stabbed two victims a total of nine times. Much of the incident was captured on video. 17 The Stabbings 18 In early 2013, [petitioner] and three friends went to a bar in Roseville. 19 There, defendant drank a rum and Coke -- his only drink that night; he was not drunk. 20 In the bar, some of [petitioner’s] friends got in a scuffle with a group 21 of African-Americans. A few punches were exchanged. Bar security told the group of African-Americans to leave. 22 Sometime later, [petitioner’s] group decided to leave the bar. 23 Outside, they came across the group they had quarreled with, along with others. One of [petitioner’s] friends was punched by a man in a 24 blue shirt. 25 26 1 Petitioner filed no post-conviction collateral challenges to the pertinent 2016 judgment in the 27 California Supreme Court. Respondent did not lodge copies of two petitions for writ of habeas corpus filed in the Placer County Superior Court because they were not required to address the 28 motion to dismiss. (ECF No. 8 at 2 n.1.) 1 Another of [petitioner’s] friends started fighting the man in the blue shirt. [Petitioner’s] friend had managed to get the better of the man 2 (he was pummeling him from atop), when the two victims came out of the bar. 3 The two victims had each consumed about six beers. One of the 4 victims was quite tall. The shorter of the two victims heard the man in the blue shirt call for help. The victim pushed (or “pried”) 5 [petitioner’s] friend off the man. After he did, one of [petitioner’s] friends punched the shorter victim in the face. The shorter victim and 6 that friend began fighting. 7 [Petitioner] involved himself in the fight. At one point, the taller victim grabbed [petitioner] by the jacket and flung him away from 8 the shorter victim who was still fighting [petitioner’s] friend. 9 The fight between the shorter victim and [petitioner’s] friend moved to the opposite sidewalk. The victim punched [petitioner’s] friend, 10 while the taller victim stood behind him. 11 [Petitioner] ran up and, using a small box cutter knife, stabbed both victims from behind, in rapid succession. He stabbed the taller victim 12 once in the lower back and the shorter victim three times in the side. Then he grabbed his friend and left. 13 [Petitioner] apparently had also stabbed both victims at an earlier 14 point in the brawl. The shorter victim was stabbed a total of seven times, and the taller victim was stabbed twice. Both victims suffered 15 a collapsed lung. And neither victim ever struck [petitioner] during the brawl. 16 [Petitioner] and his friends were apprehended, in a car, about a mile 17 and a half from the bar. At trial, [petitioner] did not recall what happened to the knife. He testified he had the knife when he got into 18 the car, after leaving the brawl, but did not have the knife after his arrest when he was taken to jail. 19 Verdict, Sentencing, and the Romero Motion 20 A jury convicted [petitioner] of two counts of assault with a deadly 21 weapon and as to each found he had inflicted great bodily injury. [Petitioner] admitted to a 1995 strike conviction for discharging a 22 firearm. (Pen. Code, § 246.3.)[FN2] 23 Prior to sentencing, [petitioner] moved to strike his prior strike. The trial court denied the motion. It noted the strike occurred when 24 [petitioner] was 18; while angry and intoxicated, [petitioner] shot a gun into the air. 25 The court further noted, in 1998, [petitioner] was arrested for driving 26 under the influence (DUI) and placed on probation. The next year, he was arrested for a second DUI and sentenced to 10 days in jail and 27 placed on probation. While on probation, he committed another felony, possessing methamphetamine for sale. He was denied 28 probation and sentenced to prison for 32 months. [Petitioner], 1 however, had a nine-year period of being a good father (as reflected in the numerous letters in support) and a productive member of 2 society (raising three children, coaching soccer, & giving to charity). 3 As to the current offense, the court noted the nature of the offense, the multiple stabbing, the disposal of the weapon, and [petitioner’s] 4 leaving the scene while those left behind were seriously injured. It concluded, given his history and age, [petitioner] fell within the spirit 5 of the three strikes law. The court imposed a 15-year aggregate term. 6 At sentencing the prosecutor informed the court the state had paid $19,510.69 for the victims’ medical expenses. It added: “There’s 7 been no stipulation. I’m asking, if there’s no stipulation, [can we] reserve and set a hearing for that.” 8 The court clarified, “are you requesting the Court to order a certain 9 amount of restitution or order it reserved?” The prosecutor responded: “I’m requesting the Court order $19,510.69 payable to 10 the Victim’s Compensation and Government Claims Board to reimburse the amount they’ve paid out.” He added: “I sent some 11 information to the defense by way of e-mail.” 12 Defense counsel responded: “. . . I acknowledge the fact that [petitioner’s] going to be obligated to pay back the victims 13 [compensation board] . . . . I would have question as to the legitimacy of the lost wages, and I would suggest that that be set for a hearing . 14 . . .” 15 The trial court ordered defendant to pay $19,510.69 to the California Victim Compensation and Government Claims Board (the board). 16 And it ordered restitution to the victims in an amount to be determined in a future restitution hearing. 17 FN2: Undesignated statutory references are to the Penal Code. 18 19 (People v. Garcia, C082134 (3rd Dist. Cal.) (Sept. 25, 2017) (ECF No. 10-2 at 2-4.) 20 IV. Motion to Dismiss 21 Rule 4 of the Rules Governing Section 2254 Cases allows a district court to dismiss a 22 petition if it “plainly appears from the face of the petition and any exhibits annexed to it that the 23 petitioner is not entitled to relief in the district court. . . .” Id. The Court of Appeals for the Ninth 24 Circuit has referred to a respondent’s motion to dismiss as a request for the court to dismiss under 25 Rule 4 of the Rules Governing § 2254 Cases. See, e.g., O’Bremski v. Maass, 915 F.2d 418, 420 26 (1991). Accordingly, the court reviews respondent’s motion to dismiss pursuant to its authority 27 under Rule 4. 28 //// 1 A. First Claim 2 In his first claim, petitioner alleges that the trial court abused its discretion in refusing to 3 strike his prior conviction under People v. Romero, 13 Cal.4th 497 (1996) (“Romero”). 4 1. Is the Claim Exhausted? 5 Respondent argues that such claim was not presented to the California Supreme Court and 6 therefore is not exhausted. As noted above, petitioner seeks to stay this action and return to state 7 court to exhaust this claim, thus conceding that this claim is not exhausted. 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). 10 As noted by the parties, petitioner’s first claim was not presented to the California 11 Supreme Court, and there is no allegation that state court remedies are no longer available to 12 petitioner. Thus, petitioner’s first claim is not exhausted. Nevertheless, a petition may be denied 13 on the merits without exhaustion of state court remedies. 28 U.S.C. § 2254(b)(2). 14 2. Is the Claim Cognizable? 15 In addition to claiming that the trial court abused its discretion in refusing to strike 16 petitioner’s prior conviction, petitioner alleges the decision violated his due process rights. (ECF 17 No. 1 at 5.) Petitioner appended the opening statement filed by appellate counsel on direct 18 appeal, in which appellate counsel relied solely on California state law. (ECF No. 1 at 27-33.) In 19 his opposition, petitioner also claims that the denial of his Romero motion violated the Fourth, 20 Sixth and Eighth Amendments, but without any explanation or legal authority. (ECF No. 14 at 2- 21 3.) Respondent argues that petitioner’s first claim fails to raise a federal question, and should be 22 dismissed. 23 a. State Court’s Last Reasoned Decision 24 The state court of appeal denied petitioner’s Romero claim on direct appeal: 25 The Trial Court Properly Denied the Romero Motion 26 On appeal, [petitioner] contends the trial court abused its discretion in denying his Romero motion. He argues his prior strike is 27 “ancient,” occurring in 1994, when he was 18, drunk, angry, and suicidal. To his current offense, he avers it was unplanned, it 28 occurred in a chaotic situation, and he mistakenly believed force was 1 necessary to prevent serious injury to his friends. 2 He adds, he came from a troubled childhood: his stepfather regularly beat him. His past offenses were mostly sustained as a juvenile. He 3 has only one parole violation. He was married and has three children. He has a good work history, and he received 41 letters in support 4 from family and friends. He concludes this places him outside the three strikes law. We disagree. 5 The three strikes sentencing scheme applies where the defendant has 6 at least one qualifying strike, unless the trial court concludes an exception should be made. (People v. Carmony (2004) 33 Cal.4th 7 367, 377 (Carmony).) A trial court properly exercises its discretion in striking a strike only if it finds “in light of the nature and 8 circumstances of his present felonies and prior serious and/or violent felony convictions, and the particulars of his background, character, 9 and prospects,” the defendant falls outside three strikes’s spirit and should be treated as though he had not committed the prior strike. 10 (People v. Williams (1998) 17 Cal.4th 148, 161.) 11 When a trial court declines to strike a strike, we review that decision for abuse of discretion. (Carmony, supra, 33 Cal.4th at pp. 374-375.) 12 We will not reverse “unless its decision is so irrational or arbitrary that no reasonable person could agree with it.” (Id. at p. 377.) Where 13 the court, aware of its discretion, “‘balanced the relevant facts and reached an impartial decision in conformity with the spirit of the law, 14 we shall affirm the . . . ruling, even if we might have ruled differently . . . .’” (Id. at p. 378.) 15 Here, the trial court properly exercised its discretion in denying the 16 Romero motion. The court considered the nature of [petitioner’s] present felony, his prior convictions, and his background and 17 prospects. While [petitioner] had nine years of being a good father and productive member of society, the violent nature of his current 18 offense along with his other offenses support the trial court's exercise of discretion.[FN3] 19 FN3: [Petitioner], nevertheless, maintains remand is required 20 because the trial court “never stated that one of its considerations was that the prior ‘strike’ weighed little due to its remoteness.” Not so. 21 The court acknowledged the prior strike occurred “back in 1995.” Moreover, the court need not articulate every factor. (See In re Coley 22 (2012) 55 Cal.4th 524, 560 [“although a trial court is required to state on the record its reasons for striking a prior conviction . . ., there is 23 no similar statutory requirement of an on-the-record statement of reasons when a court declines to strike a prior”].) 24 25 People v. Garcia, ECF No. 10-2 at 4-6. 26 b. Governing Standards 27 Federal habeas corpus relief may be granted “only on the ground that [petitioner] is in 28 custody in violation of the Constitution or laws or treaties of the United States.” 28 U.S.C. 1 § 2254(a). Mere errors in the application of state law are not cognizable on federal habeas 2 review. Estelle v. McGuire, 502 U.S. 62, 67-68 (1991); see also Wilson v. Corcoran, 562 U.S. 1, 3 5 (2010) (per curiam) (“it is only noncompliance with federal law that renders a State’s criminal 4 judgment susceptible to collateral attack in the federal courts”); Hendricks v. Vasquez, 974 F.2d 5 1099, 1105 (9th Cir. 1992) (“Federal habeas will not lie for errors of state law”). Petitioner may 6 not “transform a state law issue into a federal one merely by asserting a violation of due process.” 7 Langford v. Day, 110 F.3d 1380, 1389 (9th Cir.), cert. denied, 522 U.S. 881 (1997). 8 c. Discussion 9 Petitioner’s federal habeas challenge to the trial court’s denial of his motion under 10 Romero essentially involves an interpretation of state sentencing law. “It is not the province of a 11 federal habeas court to reexamine state court determinations on state law questions.” Wilson, 562 12 U.S. at 5 (quoting Estelle, 502 U.S. at 67). More specifically, a trial court’s refusal to strike a 13 prior conviction under Romero does not give rise to any cognizable claim for federal habeas 14 relief. Brown v. Mayle, 283 F.3d 1019, 1040 (9th Cir. 2002), vacated on other grounds, 538 U.S. 15 901 (2003). “The district court correctly concluded that this state law claim is not cognizable on 16 federal habeas review.” Brown, 283 F.3d at 1040; see also Rascon v. Valenzuela, 2017 WL 17 5484066, at *4 (E.D. Cal. Nov. 15, 2017) (“Whether or not the trial court correctly used its 18 discretion in denying petitioner’s Romero motion is a matter of state, not federal, law”) (citation 19 omitted); Clements v. Rackley, 2017 WL 1129948, at *11 (C.D. Cal. Feb. 13, 2017), adopted, 20 2017 WL 1115149 (C.D. Cal. Mar. 24, 2017) (“A California state trial court’s refusal to grant a 21 Romero motion, or to strike a defendant’s prior conviction that will be used to enhance a 22 defendant’s sentence under California’s Three Strikes Law, does not present constitutional 23 violations that warrant federal habeas relief.”) (citations omitted). 24 Petitioner did not include an Eighth Amendment challenge in his petition, but argues that 25 the denial of the Romero motion also violated his Eighth Amendment rights. (ECF No. 14 at 3.) 26 To the extent petitioner argues that his sentence violates the Eighth Amendment because of the 27 application of the Three Strikes Law, such argument fails. The Supreme Court has held that state 28 recidivist statutes, including California’s Three Strikes Law, are constitutional, and do not violate 1 the Eighth Amendment’s prohibition on cruel and unusual punishment. Ewing v. California, 538 2 U.S. 11, 29-30 (California’s Three Strikes Law constitutional; upholding sentence of 25 years-to- 3 life for recidivist convicted of grand theft); see also Lockyer v. Andrade, 538 U.S. 63, 75 (2003) 4 (affirmed Three Strikes sentences of two consecutive 25 years-to-life imprisonment terms for two 5 convictions for petty theft of less than $200.00 worth of videotapes each, with prior conviction); 6 Rummel v. Estelle, 445 U.S. 263, 284-85 (1980) (upholding life sentence with possibility of 7 parole under Texas recidivist statute for recidivist convicted of fraudulent use of credit card for 8 $80.00, passing forged check for $28.36, and obtaining $120.75 under false pretenses). 9 In his opposition, petitioner also makes vague and unsupported references to violations of 10 the Fourth and Sixth Amendments, but fails to explain how he believes the trial court’s denial of 11 the Romero motion violated such constitutional rights or to provide any legal authority in support 12 of such theory. (ECF No. 14 at 2.) Such vague and conclusory references do not warrant relief, 13 particularly in light of the authorities discussed above. See, e.g., Langford, 110 F.3d at 1389. 14 Accordingly, respondent’s motion to dismiss petitioner’s first claim should be granted. 15 B. Second Claim 16 In his second claim, petitioner alleges that the order requiring payment of restitution to the 17 victim was not supported by sufficient evidence because the victim did not submit medical bills. 18 Respondent contends that petitioner’s claim is not cognizable on federal habeas and should be 19 dismissed. (ECF No. 8 at 5.) 20 The state Court of Appeals denied petitioner’s challenge to the restitution order, noting 21 that the record reflected that “the parties stipulated to the $19,510.69 amount.” People v. Garcia, 22 ECF No. 10-2 at 6. Moreover, even if the parties had not stipulated, the state Court of Appeals 23 found that petitioner’s challenge was “forfeited by defense counsel’s failure to challenge the 24 restitution order at sentencing.” Id., ECF No. 10-2 at 7. 25 The federal writ of habeas corpus is only available to persons “in custody” at the time the 26 petition is filed. 28 U.S.C. §§ 2241(c), 2254(a); Carafas v. LaVallee, 391 U.S. 234, 238 (1968). 27 This requirement is jurisdictional. Id. The Ninth Circuit has explicitly held that “an attack on a 28 restitution order is not an attack on the execution of a custodial sentence . . . [Thus,] § 2254(a) 1 does not confer jurisdiction over a challenge to a restitution order.” Bailey v. Hill, 599 F.3d 976, 2 983 (9th Cir. 2010) (citing United States v. Kramer, 195 F.3d 1129 (9th Cir. 1999)). “[T]he 3 remedy that [petitioner] seeks, the elimination or alteration of a money judgment, does not 4 directly impact -- and is not directed at the source of the restraint on -- his liberty.” Bailey, 599 5 F.3d at 981. A federal court, then, lacks jurisdiction to hear claims that challenge the money 6 portion of a state judgment, such as a restitution order, which does not affect the duration of 7 custody. Id.; see also Williamson v. Gregoire, 151 F.3d 1180, 1183 (9th Cir. 1998) (stating that 8 imposition of fine is “merely a collateral consequence of conviction” and, as such, is not 9 sufficient to establish federal habeas jurisdiction). 10 Because the petitioner’s second claim challenges only the restitution portion of 11 petitioner’s sentence, the “custody” requirement of Section 2254(a) is not satisfied and the court 12 does not have jurisdiction to entertain such claim. 13 C. Motion for Stay 14 Petitioner also filed a motion for stay under Rhines v. Weber, 544 U.S. 269 (2005). 15 Petitioner contends that his appointed appellate counsel failed to include petitioner’s Romero 16 claim in the petition for review and did not inform petitioner. (ECF No. 15 at 2.) Petitioner states 17 he was not aware of such omission until the respondent filed the instant motion to dismiss, and 18 therefore petitioner should be granted a stay so that he may return to state court and exhaust his 19 first claim for relief. 20 Respondent counters that petitioner fails to demonstrate that (1) he has good cause for the 21 stay under Rhines, (2) the unexhausted claim is potentially meritorious, or (3) petitioner has not 22 intentionally engaged in dilatory tactics. (ECF No. 16.) Moreover, despite discovering that such 23 claim was not included in the petition for review in respondent’s June 14, 2019 motion to dismiss, 24 respondent argues that petitioner still has not filed a petition for writ of habeas corpus in the 25 California Supreme Court. (ECF No. 16 at 4.) 26 Under Rhines, a district court may, in limited circumstances, stay a mixed petition 27 pending exhaustion of unexhausted claims if: (1) “the petitioner had good cause for his failure to 28 exhaust;” (2) “his unexhausted claims are potentially meritorious;” and (3) “there is no indication 1 that the petitioner engaged in intentionally dilatory litigation tactics.” Rhines, 544 U.S. at 278. 2 The Supreme Court has made clear that this option “should be available only in limited 3 circumstances.” Id. at 277. In order to be granted a stay under Rhines, petitioner must meet all 4 three Rhines prongs set forth above. Id. at 278. 5 1. No Good Cause 6 Plaintiff’s claim that he did not know appellate counsel failed to raise the Romero claim in 7 the petition for review does not demonstrate good cause under Rhines. In Wooten v. Kirkland, 8 540 F.3d 1019 (9th Cir. 2008), the Ninth Circuit ruled that petitioner did not show good cause by 9 arguing that he was “under the impression” that his counsel had raised all claims before the state 10 court of appeal. Wooten, 540 F.3d at 1024. The Ninth Circuit explained that finding good cause 11 in that argument “would render stay-and-abey orders routine” and “would run afoul of Rhines and 12 its instruction that district courts should only stay mixed petitions in ‘limited circumstances.’” 13 Wooten, 540 F.3d at 1024. Therefore, petitioner fails to demonstrate good cause for a stay under 14 Rhines. 15 2. Claim Lacks Merit 16 As discussed above, petitioner cannot demonstrate that his Romero claim has merit on 17 federal habeas review. A federal habeas petitioner must establish that at least one of his 18 unexhausted claims is not ‘plainly meritless’ in order to obtain a stay under Rhines.” Dixon v. 19 Baker, 847 F.3d 714, 722 (9th Cir. 2017), quoting Rhines, 544 U.S. at 277. A claim is “plainly 20 meritless” only if “it is perfectly clear that the petitioner has no hope of prevailing.” Cassett v. 21 Stewart, 406 F.3d 614, 624 (9th Cir. 2005). Because petitioner’s claim that the trial court abused 22 its discretion in denying the Romero motion is not cognizable on federal habeas review, petitioner 23 cannot demonstrate that such claim is potentially meritorious. 24 3. Delay 25 Because petitioner fails to demonstrate the first two prongs of Rhines, the undersigned 26 need not address the third prong of Rhines, and finds that petitioner’s motion for stay should be 27 denied. 28 //// 1 | V. Recommendations 2 Accordingly, IT IS HEREBY RECOMMENDED that: 3 1. Respondent’s motion to dismiss (ECF No. 8) be granted, 4 2. Petitioner’s motion for stay (ECF No. 15) be denied; and 5 3. This action be dismissed. 6 These findings and recommendations are submitted to the United States District Judge 7 | assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(1). Within fourteen days 8 || after being served with these findings and recommendations, any party may file written 9 | objections with the court and serve a copy on all parties. Such a document should be captioned 10 | “Objections to Magistrate Judge’s Findings and Recommendations.” If petitioner files objections, 11 | he shall also address whether a certificate of appealability should issue and, if so, why and as to 12 || which issues. A certificate of appealability may issue under 28 U.S.C. § 2253 “only if the 13 | applicant has made a substantial showing of the denial of a constitutional right.” 28 U.S.C. 14 | § 2253(c)(3). Any response to the objections shall be served and filed within fourteen days after 15 | service of the objections. The parties are advised that failure to file objections within the 16 || specified time may waive the right to appeal the District Court’s order. Martinez v. YIst, 951 17 | F.2d 1153 (9th Cir. 1991). 18 || Dated: November 18, 2019 i Fensbl A Abar 20 KENDALL J. NE /ew/garc0296.mtd.he UNITED STATES MAGISTRATE JUDGE 21 22 23 24 25 26 27 28 11