Rodney Gaines v. Bruno Stolc

Filing 32

ORDER AND JUDGMENT by Judge Terry J. Hatter, Jr, (See document for details.) 1. The Court accepts the Report and Recommendation of the Magistrate Judge; 2. Petitioner's petition for a writ of habeas corpus be, and hereby is, conditionally Grante d. Unless Petitioner is brought to retrial within 60 days of the date this judgment becomes final (plus any additional delay authorized under state law), Respondent shall discharge Petitioner from all consequences of his conviction pursuant to California Health & Safety Code § 11350 in Los Angeles County Superior Court Case No. MA032254; 3. Petitioner's requests for counsel and for an evidentiary hearing are Denied as moot.(MD JS-6, Case Terminated). (rla)

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2 3 i 4 J I I : 5 ::rs - ~ I HEREBY CERTIFY THAT THIS DOCUMENT WAS SERVED BY_ ~ FIRST CLASS MAIL POSTAGE PREPAID, TO ALL S81:HJ9Et y~...nwV( (Q~ PP:lHlES) AT THEIR RESPECTIVE MOST RECENT ADDRESS OF I ';tJ,EILGI) FILED· SOUTHERNl:lIVISION-t CLERK, U.S. DISTRICT COURT RECORD IN THIS ACTION ON THIS DATE. ?-- • , " . \"L-- DATED: FEB I 62012 DEPUTY CLERK ~-==-=~,....,.-..",...I ." CENTRAL DISTRICT OF OALIFORNiA BY ·<DEPUTY ENTERED -S ERN DIVISION C~ERinfS. DISTRICT COURT I 6 FEB I 62012 7 OF ALiFORNIA DEPUT nlted States District Court Central District of California Eastern Division 8 9 10 11 12 RODNEY GAINES, 13 14 15 16 EDCV 11-2181 TJH (JPR) Petitioner, Order v. and BRUNO STOLC, Respondent. Judgment 17 18 19 Pursuant to 28 U.S.C. § 636, the Court has reviewed Petitioner's first 20 amended petition, the records on file, the Report and Recommendation of the 21 Magistrate Judge ("Report"), Respondent's objections to the Report, and 22 Petitioner's reply to the objections. Pursuant to 28 U.S.C. § 636(b)(l)(C) and Fed. 23 R. Civ. P. 72(b) , the Court conducted a de novo review of those matters in the 24 Report to which objections have been stated in writing. 25 In May, 2006, Petitioner was charged in state court with selling, transporting, 26 or offering to sell cocaine, and possession of a smoking device. Though Petitioner Order and Judgment - Page 1 of 7 1 2 ! i ! objections of the prosecutor and Petitioner, instructed the jury on simple possession 3 I was not charged with possession of cocaine, the trial court, sua sponte and over the and possession for sale, in addition to the charged offenses. The trial court's verdict 4 form included both the charged and the uncharged offenses. 5 The prosecutor, in his closing argument, stated that "the People are not 6 requesting that you consider those two [possession charges]." (Rep. Tr. vol. 2, 7 396: 20-22). The prosecutor, further, stated, "I don't see ... [possession] here in 8 this case." Rep. Tr. vol. 2, 397: 11-28. The prosecutor concluded his closing 9 argument by saying, "So the People are ... asking you to look simply at count 1, the 10 offer to sell, the furnishing, and to reach a verdict on that count 11 "(Rep. Tr. vol. 2, 398: 4-7). 12 While objecting to the instruction for possession for sale, Petitioner's counsel 13 stated, "I would like to object to this jury instruction ... because the evidence in this 14 case do [sic] not - do [sic] not warrant giving such an instruction as far as 15 possession for sale." (Resp't's Br. at 8-9). The trial court noted the objection for 16 the record but overruled it "given the evidence that developed." (Resp't's Br. at 9). 17 Petitioner never objected to the instruction for simple possession. 18 The jury acquitted Petitioner of the sales charge, but convicted him of 19 possession of a smoking device and the uncharged offense of possession of cocaine. 20 Petitioner was sentenced to 11 years in prison. 21 Petitioner appealed to the California Court of Appeal, which concluded that 22 the trial court erred in instructing the jury on the simple possession charge, but held 23 that Petitioner forfeited his right to appeal by failing to object at trial. Petitioner, 24 then, filed a petition for review and a petition for a writ of habeas corpus with the 25 California Supreme Court, which denied both. 26 Petitioner, then, filed a petition for a writ of habeas corpus in the District Order and Judgment - Page 2 of 7 1 Court. After the petition was dismissed as a mixed petition, he filed a first amended 2 petition ("FAP"). The FAP asserted six grounds for relief, but they should have 3 been consolidated into two grounds: (1) challenging the sentence as violative of the 4 Eighth Amendment, and (2) challenging the conviction for possession as violative 5 of his due process rights. 6 default affirmative defense as to the Eighth Amendment claim, and dismissed the 7 remainder of the FAP as "nothing more than a fundamental misunderstanding of the 8 law of lesser-included offenses." Respondent's answer to the FAP raised a procedural 9 In response to the Magistrate Judge's order to show. cause why the Court 10 should not (1) deem Respondent to have waived any argument that Petitioner's due 11 process claim was procedurally defaulted, and (2) recommend that the District Court 12 grant Petitioner relief on his due process claim, Respondent stated that he had 13 misinterpreted grounds 2 to 6 of the FAP to contain solely an insufficiency of 14 evidence argument and that, had he understood that Petitioner was attempting to 15 make a due process argument, he would have asserted the procedural default 16 defense as to those grounds. Furthermore, Respondent conceded that the position 17 taken in the answer - that possession of a controlled substance was a lesser-included 18 offense of sale of a controlled substance - was clearly erroneous. After considering 19 the response, the Magistrate Judge issued her Report recommending that the FAP 20 be granted. 21 Federal courts have the power to grant a writ of habeas corpus if a state court 22 conviction "resulted in a decision that was contrary to, or involved an unreasonable 23 application of, clearly established Federal law, as determined by the Supreme 24 Court" or "resulted in a decision based on an unreasonable determination of the 25 facts." 28 U.S.C. § 2254(d). A state court decision is contrary to Supreme Court 26 precedent "if the state court arrives at a·conclusion opposite to that reached by [the Order and Judgment - Page 3 of 7 1 Supreme Court] on a question of law" or if "the state court confronts facts that are 2 materially indistinguishable from a relevant Supreme Court precedent and arrives 3 at a result opposite to [the Supreme Court's]." Williams v. Taylor, 529 U.S. 362, 4 405-6, 120 S. Ct. 1495, 1519, 146 L. Ed. 2d 389, 425 (2000). 5 Procedural due process, including notice of the specific charge and an 6 opportunity to be heard during a trial of the issues raised by that charge, is "among 7 the constitutional rights of every accused in a criminal proceeding in all courts, state 8 or federal." Cole v. Arkansas, 333 U.S. 196, 201, 68 S. Ct. 514, 517, 92 L. Ed. 9 644, 647 (1948). Here, the state trial court's instructions and verdict form resulted 10 in a violation of Petitioner's due process rights because he was convicted of a crime 11 - 12 conviction upon a charge not made or upon a charge not tried constitutes a denial 13 of due process." Jackson v. Virginia, 443 U.S. 307, 314, 99 S. Ct. 2781, 2786, 61 14 L. Ed. 2d 560, 570 (1979). Accordingly, the trial court's decision to give the jury 15 instructions and a verdict form for a crime neither charged nor tried involved an 16 unreasonable application of clearly established Federal law, as determined by the 17 Supreme Court, and resulted in Petitioner's wrongful conviction. possession - for which he was neither charged nor tried. "It is axiomatic that a 18 In a similar case, the Ninth Circuit reversed a district court's denial of a 19 petition for a writ of habeas corpus. Gault v. Lewis, 489 F. 3d 993, 998 (9th Cir. 20 2007). In Gault, the Circuit held that the petitioner's due process rights were 21 violated when he was sentenced pursuant to a twenty-five-year-to-life enhancement 22 with which he was not charged, rather than the ten-year enhancement with which 23 he was charged, and that "the California appellate court's decision to the contrary 24 constituted 'an unreasonable application of0 clearly established Federal law, as 25 determined by the Supreme Court of the United States.'" Gautt, 489 F. 3d at 998 26 (Citing 28 U.S.C. § 2254(d)). Order and Judgment - Page 4 of 7 The Court agrees with the Magistrate Judge's conclusion that, although 2 inartfully pled, Petitioner's FAP sufficiently states a claim for violation of due 3 process. 4 defense was waived as Respondent did not assert it in his answer. See Franklin v. 5 Johnson, 290 F.3d 1223 (9th Cir. 2002). Under Fed. R. Civ. P. 8(c), Respondent 6 was obligated to assert all of his affirmative defenses in his answer. See Nardi v. 7 Stewart, 354 F.3d 1134 (9th Cir. 2004). Moreover, there is nothing in the record 8 before this Court to indicate that Respondent ever sought leave to amend his answer 9 to add the procedural default affirmative defense. By not asserting procedural 10 default in his answer to the due process claims, Respondent, in effect, has been 11 procedurally defaulted from later raising the defense. See Franklin, 290 F.3d at 12 1233. Furthermore, the Court agrees that Respondent's procedural default 13 Even if the Court permitted Respondent to amend his answer to add the 14 procedural default defense, the amendment would be futile because Petitioner was 15 not procedurally barred by an independent state ground. "In all cases in which a 16 state prisoner has defaulted his federal claims in state court pursuant to an 17 independent and adequate state procedural rule, federal habeas review of the claims 18 is barred unless the prisoner can demonstrate cause for the default and actual 19 prejudice as a result of the alleged violation of federal law .... " Coleman v. 20 Thompson, 501 U.S. 722, 724, 111 S. Ct. 2546, 2551, 115 L. Ed. 2d 640, 652 21 (1991). Thus, a showing of cause and actual prejudice is necessary to excuse a 22 procedural default. Here, Petitioner has established both. 23 Petitioner had the requisite cause for failing to object at trial - futility. The 24 prosecutor had objected to the instructions and verdict form as to both simple 25 possession and possession with intent to sell, while Petitioner's counsel made an 26 objection only as to possession with intent to sell. Any further objection by Order and Judgment - Page 5 of 7 Petitioner's counsel would have been futile. The Court agrees with Petitioner that 2 because the trial court wrongly thought that the possession offenses were lesser 3 included, rather than related, offenses of the offer to sell charge, any further 4 objections would have been futile. Therefore, Petitioner has demonstrated cause for 5 his procedural default. 6 Petitioner, also, suffered the requisite prejudice because the trial court 7 committed plain error. Under United States v. Olano, 507 U.S. 725, 736, 113 S. 8 Ct. 1770, 1779, 123 L. Ed. 2d 508,518 (1993), a conviction resulting from a plain, 9 forfeited error that affects substantial rights and seriously affects the fairness, 10 integrity or public reputation of judicial proceedings should be reversed. As 11 conceded by all parties, and as held by the California Court of Appeal, the trial 12 court's jury instructions and verdict form were clearly and obviously erroneous. 13 Those errors resulted in Petitioner's conviction of a crime for which he was neither 14 charged nor tried, and, as such, constituted a violation of his fundamental 15 constitutional due process rights. Cole, 333 U.S. at 201,68 S. Ct. at 517,92 L. 16 Ed. at 647. This conviction is the type of error which calls into question the 17 integrity of the judicial system. See Olano. 18 19 Accordingly, it is Ordered, Adjudged and Decreed that: 20 1. The Court accepts the Report and Recommendation of the Magistrate 21 Judge; 22 2. 23 conditionally Granted. Unless Petitioner is brought to retrial within 60 days 24 of the date this judgment becomes final (plus any additional delay authorized 25 under state law), Respondent shall discharge Petitioner from all consequences 26 of his conviction pursuant to California Health & Safety Code § 11350 in Los Petitioner's petition for a writ of habeas corpus be, and hereby is, Order and Judgment - Page 6 of 7 1 Angeles County Superior Court Case No. MA032254; 2 3. 3 Denied as moot. Petitioner's requests for counsel and for an evidentiary hearing are 4 5 6 It is Further Ordered that the clerk shall serve copies of this order and judgment by first class mail on Petitioner and counsel for Respondent. 7 8 Date: February 15, 2012 9 10 11 ~~ Hatter, Jr:~ Senior United States District Judge 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 Order and Judgment - Page 7 of 7 NOTICE PARTY SERVICE LIST Case No. EDCVll-02181-TJH OPR) Case Title Rodney Gaines v. Bruno Stole Title of Document Order and Judgment ADR US Attorneys Office - Civil Division - L.A. BAP (Bankruptcy Appellate Panel) US Attorneys Office - Civil Division - S.A. BOP (Bureau of Prisons) US Attorneys Office - Criminal Division - L.A. CA St Pub Defender (Calif. State PD) us Attorneys Office - Criminal Division - S.A. CAAG (California Attorney General's OfficeL.A. Death Penalty Coordinator) US Bankruptcy Court US Marshal Service - Los Angeles (USMLA) Case Asgmt Admin (Case Assignment Administrator) US Marshal Service - Riverside (USMED) Chief Deputy Admin US Marshal Service - Santa Ana (USMSA) Chief Deputy Case Processing US Probation Office (USPO) Chief Deputy Judicial Services US Trustee's Office CJA Supervising Attorney Warden, San Quentin State Prison, CA Clerk of Court ADD NEW NOTICE PARTY (if sending by fax, mailing address must also be provided) Death Penalty HIC (Law Clerks) Dep in Chg E Div Dep In Chg So Div Federal Public Defender Name: Firm: Address (include suite orfloor) : Fiscal Section Intake Section, Criminal LA Intake Section, Criminal SA *E-mail: Intake Supervisor, Civil *FaxNo.: MDLPanel *For CIVIL cases onlv Ninth Circuit Court of Appeal PIA Clerk - Los Angeles (PIALA) PIA Clerk - Riverside (PIAED) PIA Clerk - Santa Ana (PIASA) PSA - Los Angeles (PSALA) o JUDGE / MAGISTRATE JUDGE (list below): Hon. Lisa M. Chung County of Los Angeles Superior Court 111 North Hill Street Los Angeles, CA 90012 Initials of Deputy Clerk JR PSA - Riverside (PSAED) PSA - Santa Ana (PSASA) Statistics Clerk G-75 (02/12) , NOTICE PARTY SERVICE LIST I

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