Trevizo v. Borders

Filing 79

ORDER ADOPTING 77 Findings and Recommendations and Denying Petition for Writ of Habeas Corpus signed by District Judge Dale A. Drozd on 07/14/2022. CASE CLOSED.(Flores, E)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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APRIL ROSIE LOPEZ TREVIZO,

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Petitioner,
v.

No. 1:16-cv-01845-DAD-SKO (HC)
ORDER ADOPTING FINDINGS AND
RECOMMENDATIONS AND DENYING
PETITION FOR WRIT OF HABEAS
CORPUS

DEAN BORDERS,
(Doc. No. 77)

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Respondent.

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Petitioner April Rosie Lopez Trevizo is a state prisoner represented by court-appointed

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counsel proceeding on a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254. This

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matter was referred to a United States Magistrate Judge pursuant to 28 U.S.C. § 636(b)(1)(B) and

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Local Rule 302.

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On October 19, 2021, the assigned magistrate judge issued findings and

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recommendations, recommending that the pending federal habeas petition be denied on its merits.

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(Doc. No. 77.) Those findings and recommendations were served upon all parties and contained

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notice that any objections thereto were to be filed within thirty (30) days after service. On

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November 18, 2021, counsel filed objections to the findings and recommendations on petitioner’s

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behalf. (Doc. No. 78.)

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In those objections, petitioner argues that she exhausted her first ineffective assistance of

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counsel claim by raising that claim in the state habeas petition she filed with the California Court
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of Appeal for the Fifth Appellate District and by then attaching that petition as an exhibit to her

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subsequent habeas petition filed with the California Supreme Court. (Id. at 2–3.)1 Petitioner

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asserts that those attached exhibits were incorporated and adopted by reference into her petition

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filed with the California Supreme Court and the claim was therefore properly exhausted by its

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presentation to California’s highest court. (Id. at 3.) Petitioner has raised no other objections to

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the pending findings and recommendations. (Id.)

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Although the record is not entirely clear in this regard, it does appear that petitioner

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attached the pro se habeas petition she had filed with the Tulare County Superior Court, in which

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she raised an ineffective assistance claim and referred to the plea bargaining stage of her case, to

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the habeas petition she filed in the California Supreme Court. Petitioner was proceeding pro se in

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filing the state court habeas petitions and, of course, pro se filings (particularly those filed by

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prisoners) are to be construed liberally. United States v. Qazi, 975 F.3d 989, 992–93 (9th Cir.

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2020) (citing Hughes v. Rowe, 449 U.S. 5, 9 (1980) and Hamilton v. United States, 67 F.3d 761,

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764 (9th Cir. 1995)). Of course, a federal habeas petitioner satisfies the exhaustion requirement

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only by providing the highest state court with a full and fair opportunity to consider all claims

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before presenting them to the federal court. Picard v. Connor, 404 U.S. 270, 276 (1971);

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Middleton v. Cupp, 768 F.2d 1083, 1086 (9th Cir. 1985). In the pending objections, petitioner

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relies upon the decisions in Hamilton v. United States, 67 F.3d 761, 764 (9th Cir. 1995) and Dye

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v. Hofbauer, 546 U.S. 1, 3–4 (2005) in arguing that proper exhaustion of the ineffective

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In advancing this objection, petitioner’s counsel has provided citations, presumably to the
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
Court by way of the attachment of her habeas petition filed with the Tulare County Superior
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
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
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
at 00006.” Nonetheless, because the undersigned is declining to adopt the recommendation that
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
court’s resolution of the pending petition.
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assistance of counsel at plea bargaining claim was accomplished by attachment. The undersigned

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does not read those decisions as providing clear or strong support for petitioner’s objection

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regarding the exhaustion issue, though they provide some basis for the argument. However, “a

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court may skip over the exhaustion issue if it is easier to deny (not grant, of course, but deny) the

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petition on the merits without reaching the exhaustion question.” Santiago-Lugo v. Warden, 785

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F.3d 467, 475 (11th Cir. 2015) (citing Granberry v. Greer, 481 U.S. 129, 131 (1987) (“[T]here

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are some cases in which it is appropriate for an appellate court to address the merits of a habeas

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corpus petition notwithstanding the lack of complete exhaustion.”)). Such is the case here and the

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undersigned will decline to adopt the findings and recommendations to the extent they

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recommend denial of the pending petition on the ground of petitioner’s failure to exhaust the

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ineffective assistance of counsel claim.

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Nonetheless, the undersigned concurs with the magistrate judge’s reasoning that

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petitioner’s claim must be rejected on its merits because: 1) it is barred by the terms of

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petitioner’s plea agreement in the underlying state court criminal case; 2) petitioner has not

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demonstrated that her trial court counsel provided her ineffective assistance in connection with

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plea negotiations; and 3) finally, petitioner has not demonstrated any prejudice resulting from her

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counsel’s alleged ineffective assistance. (Doc. No. 77 at 8–10.) Petitioner’s objections present

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no grounds for questioning the magistrate judge’s analysis and rejection of her ineffective

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assistance of counsel claim on the merits.

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In accordance with the provisions of 28 U.S.C. § 636 (b)(1)(C), the court has conducted a

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de novo review of the case. Having carefully reviewed the entire file, including petitioner's

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objections, the court concludes that the magistrate judge’s findings and recommendations are

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supported by the record and proper analysis.

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Having determined that petitioner is not entitled to habeas relief, the court now turns to

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whether a certificate of appealability should issue. A state prisoner seeking a writ of habeas

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corpus has no absolute entitlement to appeal a district court’s denial of his petition, and an appeal

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is only allowed in certain circumstances. Miller-El v. Cockrell, 537 U.S. 322, 335–36 (2003); see

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also 28 U.S.C. § 2253. If a court denies a habeas petition on the merits, the court may only issue
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a certificate of appealability “if jurists of reason could disagree with the district court’s resolution

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of [the petitioner’s] constitutional claims or that jurists could conclude the issues presented are

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adequate to deserve encouragement to proceed further.” Miller-El, 537 U.S. at 327; see also

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Slack v. McDaniel, 529 U.S. 473, 484 (2000). While the petitioner is not required to prove the

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merits of his case, he must demonstrate “something more than the absence of frivolity or the

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existence of mere good faith on his . . . part.” Miller-El, 537 U.S. at 338. If a court denies a

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petitioner’s habeas petition, the court may only issue a certificate of appealability when a

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petitioner makes a substantial showing of the denial of a constitutional right. 28 U.S.C. §

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2253(c)(2). To make a substantial showing, the petitioner must establish that “reasonable jurists

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could debate whether (or, for that matter, agree that) the petition should have been resolved in a

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different manner or that the issues presented were ‘adequate to deserve encouragement to proceed

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further.’” Slack v. McDaniel, 529 U.S. 473, 484 (2000) (quoting Barefoot v. Estelle, 463 U.S.

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880, 893 (1983)). In the present case, the court finds that petitioner has not made the required

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substantial showing of the denial of a constitutional right to justify the issuance of a certificate of

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appealability. Reasonable jurists would not find the court’s determination that petitioner is not

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entitled to federal habeas corpus relief debatable, wrong, or deserving of encouragement to

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proceed further. Thus, the court declines to issue a certificate of appealability.

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Accordingly,

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1.

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The findings and recommendations issued on October 19, 2021 (Doc. No. 77) are
adopted in part;

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The petition for writ of habeas corpus is denied on the merits;

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3.

The court declines to issue a certificate of appealability; and

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The Clerk of the Court is directed to close this case.

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IT IS SO ORDERED.
Dated:

July 14, 2022
UNITED STATES DISTRICT JUDGE

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