(HC) Trevizo v. Borders ( 2022 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 APRIL ROSIE LOPEZ TREVIZO, No. 1:16-cv-01845-DAD-SKO (HC) 12 Petitioner, ORDER ADOPTING FINDINGS AND RECOMMENDATIONS AND DENYING 13 v. PETITION FOR WRIT OF HABEAS CORPUS 14 DEAN BORDERS, (Doc. No. 77) 15 Respondent. 16 17 Petitioner April Rosie Lopez Trevizo is a state prisoner represented by court-appointed 18 counsel proceeding on a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254. This 19 matter was referred to a United States Magistrate Judge pursuant to 28 U.S.C. § 636(b)(1)(B) and 20 Local Rule 302. 21 On October 19, 2021, the assigned magistrate judge issued findings and 22 recommendations, recommending that the pending federal habeas petition be denied on its merits. 23 (Doc. No. 77.) Those findings and recommendations were served upon all parties and contained 24 notice that any objections thereto were to be filed within thirty (30) days after service. On 25 November 18, 2021, counsel filed objections to the findings and recommendations on petitioner’s 26 behalf. (Doc. No. 78.) 27 In those objections, petitioner argues that she exhausted her first ineffective assistance of 28 counsel claim by raising that claim in the state habeas petition she filed with the California Court 1 of Appeal for the Fifth Appellate District and by then attaching that petition as an exhibit to her 2 subsequent habeas petition filed with the California Supreme Court. (Id. at 2–3.)1 Petitioner 3 asserts that those attached exhibits were incorporated and adopted by reference into her petition 4 filed with the California Supreme Court and the claim was therefore properly exhausted by its 5 presentation to California’s highest court. (Id. at 3.) Petitioner has raised no other objections to 6 the pending findings and recommendations. (Id.) 7 Although the record is not entirely clear in this regard, it does appear that petitioner 8 attached the pro se habeas petition she had filed with the Tulare County Superior Court, in which 9 she raised an ineffective assistance claim and referred to the plea bargaining stage of her case, to 10 the habeas petition she filed in the California Supreme Court. Petitioner was proceeding pro se in 11 filing the state court habeas petitions and, of course, pro se filings (particularly those filed by 12 prisoners) are to be construed liberally. United States v. Qazi, 975 F.3d 989, 992–93 (9th Cir. 13 2020) (citing Hughes v. Rowe, 449 U.S. 5, 9 (1980) and Hamilton v. United States, 67 F.3d 761, 14 764 (9th Cir. 1995)). Of course, a federal habeas petitioner satisfies the exhaustion requirement 15 only by providing the highest state court with a full and fair opportunity to consider all claims 16 before presenting them to the federal court. Picard v. Connor, 404 U.S. 270, 276 (1971); 17 Middleton v. Cupp, 768 F.2d 1083, 1086 (9th Cir. 1985). In the pending objections, petitioner 18 relies upon the decisions in Hamilton v. United States, 67 F.3d 761, 764 (9th Cir. 1995) and Dye 19 v. Hofbauer, 546 U.S. 1, 3–4 (2005) in arguing that proper exhaustion of the ineffective 20 1 In advancing this objection, petitioner’s counsel has provided citations, presumably to the 21 record, in support of petitioner’s argument that her ineffective assistance of counsel during plea negotiations claim was properly exhausted because it was presented to the California Supreme 22 Court by way of the attachment of her habeas petition filed with the Tulare County Superior 23 Court. (Doc. No. 78 at 2.) Counsel provides citations to “ECF 28, Lodged Document 33040237” “ECF 28, Lodged Doc., 33028131” and “ECF 28, Lodged Document 33021555 at 00006” in this 24 regard (Id. at 2–3.) However, these citations have proven somewhat unhelpful to the court because it cannot determine what document or page they refer to. Docket Number 28 is merely a 25 Notice of Lodging/Filing of Paper Documents and the court has been unable to identify any pages in that paper lodging in the court’s record designated as “33040237,” “33028131,” or “33021555 26 at 00006.” Nonetheless, because the undersigned is declining to adopt the recommendation that 27 petitioner be denied habeas relief as to her ineffective assistance of counsel during plea negotiations claim based on her failure to exhaust that claim, this uncertainty has no impact on the 28 court’s resolution of the pending petition. 1 assistance of counsel at plea bargaining claim was accomplished by attachment. The undersigned 2 does not read those decisions as providing clear or strong support for petitioner’s objection 3 regarding the exhaustion issue, though they provide some basis for the argument. However, “a 4 court may skip over the exhaustion issue if it is easier to deny (not grant, of course, but deny) the 5 petition on the merits without reaching the exhaustion question.” Santiago-Lugo v. Warden, 785 6 F.3d 467, 475 (11th Cir. 2015) (citing Granberry v. Greer, 481 U.S. 129, 131 (1987) (“[T]here 7 are some cases in which it is appropriate for an appellate court to address the merits of a habeas 8 corpus petition notwithstanding the lack of complete exhaustion.”)). Such is the case here and the 9 undersigned will decline to adopt the findings and recommendations to the extent they 10 recommend denial of the pending petition on the ground of petitioner’s failure to exhaust the 11 ineffective assistance of counsel claim. 12 Nonetheless, the undersigned concurs with the magistrate judge’s reasoning that 13 petitioner’s claim must be rejected on its merits because: 1) it is barred by the terms of 14 petitioner’s plea agreement in the underlying state court criminal case; 2) petitioner has not 15 demonstrated that her trial court counsel provided her ineffective assistance in connection with 16 plea negotiations; and 3) finally, petitioner has not demonstrated any prejudice resulting from her 17 counsel’s alleged ineffective assistance. (Doc. No. 77 at 8–10.) Petitioner’s objections present 18 no grounds for questioning the magistrate judge’s analysis and rejection of her ineffective 19 assistance of counsel claim on the merits. 20 In accordance with the provisions of 28 U.S.C. § 636 (b)(1)(C), the court has conducted a 21 de novo review of the case. Having carefully reviewed the entire file, including petitioner's 22 objections, the court concludes that the magistrate judge’s findings and recommendations are 23 supported by the record and proper analysis. 24 Having determined that petitioner is not entitled to habeas relief, the court now turns to 25 whether a certificate of appealability should issue. A state prisoner seeking a writ of habeas 26 corpus has no absolute entitlement to appeal a district court’s denial of his petition, and an appeal 27 is only allowed in certain circumstances. Miller-El v. Cockrell, 537 U.S. 322, 335–36 (2003); see 28 also 28 U.S.C. § 2253. If a court denies a habeas petition on the merits, the court may only issue 1 || acertificate of appealability “if jurists of reason could disagree with the district court’s resolution 2 | of [the petitioner’s] constitutional claims or that jurists could conclude the issues presented are 3 | adequate to deserve encouragement to proceed further.” Miller-El, 537 U.S. at 327; see also 4 | Slack v. McDaniel, 529 U.S. 473, 484 (2000). While the petitioner is not required to prove the 5 | merits of his case, he must demonstrate “something more than the absence of frivolity or the 6 || existence of mere good faith on his... part.” Miller-El, 537 U.S. at 338. If a court denies a 7 || petitioner’s habeas petition, the court may only issue a certificate of appealability when a 8 || petitioner makes a substantial showing of the denial of a constitutional right. 28 U.S.C. § 9 || 2253(c)(2). To make a substantial showing, the petitioner must establish that “reasonable jurists 10 || could debate whether (or, for that matter, agree that) the petition should have been resolved in a 11 || different manner or that the issues presented were ‘adequate to deserve encouragement to proceed 12 | further.’” Slack v. McDaniel, 529 U.S. 473, 484 (2000) (quoting Barefoot v. Estelle, 463 U.S. 13 || 880, 893 (1983)). In the present case, the court finds that petitioner has not made the required 14 || substantial showing of the denial of a constitutional right to justify the issuance of a certificate of 15 || appealability. Reasonable jurists would not find the court’s determination that petitioner is not 16 || entitled to federal habeas corpus relief debatable, wrong, or deserving of encouragement to 17 || proceed further. Thus, the court declines to issue a certificate of appealability. 18 Accordingly, 19 1. The findings and recommendations issued on October 19, 2021 (Doc. No. 77) are 20 adopted in part; 21 2. The petition for writ of habeas corpus is denied on the merits; 22 3. The court declines to issue a certificate of appealability; and 23 4. The Clerk of the Court is directed to close this case. 24 | IT IS SO ORDERED. ee Dated: _ July 14, 2022 Yel A Lange 26 UNITED STATES DISTRICT JUDGE 27 28