Velasquez-Quinonez v. People of State of California
Filing
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FINDINGS and RECOMMENDATIONS to Dismiss 1 Petition for Lack of Jurisdiction signed by Magistrate Judge Jennifer L. Thurston on 03/01/2017. Referred to Judge Ishii; Objections to F&R due by 3/27/2017.(Flores, E)
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UNITED STATES DISTRICT COURT
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EASTERN DISTRICT OF CALIFORNIA
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Petitioner,
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v.
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PEOPLE OF THE STATE OF CALIFORNIA, )
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Respondent.
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OSCAR IVAN VELASQUEZ-QUINONEZ,
Case No.: 1:17-cv-00155-AWI-JLT (HC)
FINDINGS AND RECOMMENDATION TO
DISMISS PETITION FOR LACK OF
JURISDICTION
[TWENTY-ONE DAY OBJECTION DEADLINE]
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Petitioner was convicted of multiple crimes in Kern County Superior Court in 2013. He served
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a seven year sentence and has since been released from custody. He now petitions for a writ of error
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coram nobis. As discussed below, the Court finds the petition should be dismissed because Petitioner
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has failed to satisfy the requirements for the highly unusual remedy of coram nobis.
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I.
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PROCEDURAL HISTORY
On March 6, 2013, Petitioner was convicted in the Kern County Superior Court of one count of
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witness tampering, one count of criminal threats, and one count of participating in a criminal street
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gang. (Doc. No. 1 at p. 2.) Gang enhancements were also found true. (Id.) He was sentenced to an
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indeterminate term of seven-years-to-life. (Id.) Subsequently, he was resentenced to a determinate
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term of seven years and was released from custody on October 5, 2016. (Id.) Petitioner appealed to
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the California Court of Appeal, Fifth Appellate District (“Fifth DCA”), and judgment was affirmed on
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January 8, 2016. (Id. at p. 25.) He filed a petition for review in the California Supreme Court, and the
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petition was denied on April 13, 2016. (Id.) He also filed a habeas petition in the Kern County
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Superior Court which was denied on November 5, 2016.
Petitioner filed his petition for writ of error coram nobis in this Court on January 23, 2017.
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(Doc. No. 1).
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II.
DISCUSSION
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A. Preliminary Review of Petition
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Rule 4 of the Rules Governing Section 2254 Cases requires the Court to make a preliminary
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review of each petition for writ of habeas corpus. The Court must summarily dismiss a petition “[i]f it
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plainly appears from the petition and any attached exhibits that the petitioner is not entitled to relief in
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the district court . . . .” Rule 4; O’Bremski v. Maass, 915 F.2d 418, 420 (9th Cir. 1990). The Advisory
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Committee Notes to Rule 8 indicate that the Court may dismiss a petition for writ of habeas corpus,
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either on its own motion under Rule 4, pursuant to the respondent’s motion to dismiss, or after an
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answer to the petition has been filed.
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B. Standard for Writ of Error Coram Nobis
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“Both the Supreme Court and [the Ninth Circuit] have long made clear that the writ of error
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coram nobis is a highly unusual remedy, available only to correct grave injustices in a narrow range of
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cases where no more conventional remedy is applicable.” United States v. Riedl, 496 F.3d 1003,
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1005–06 (9th Cir. 2007). The Supreme Court characterized the writ as an “extraordinary remedy” that
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should be granted “only under circumstances compelling such action to achieve justice.” United
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States v. Morgan, 346 U.S. 502, 511 (1954); see also Carlisle v. United States, 517 U.S. 416, 429
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(1996) (“‘[I]t is difficult to conceive of a situation in a federal criminal case today where [a writ of
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coram nobis ] would be necessary or appropriate.’”) (quoting United States v. Smith, 331 U.S. 469,
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475 n. 4 (1947)) (second alteration in original). The writ has been available to bring before the court
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only those fundamental “factual errors material to the validity and regularity of the legality of the
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proceeding itself, such as the defendants being under age or having died before the verdict.” Carlisle,
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517 U.S. at 429.
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The Ninth Circuit has also described the writ as “extraordinary,” Hirabayashi v. United States,
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828 F.2d 591, 604 (9th Cir. 1997), “used only to review errors of the most fundamental character,”
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Matus-Leva v. United States, 287 F.3d 758, 760 (9th Cir. 2002), and “fill[ing] a very precise gap in
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federal criminal procedure,” Telink, Inc. v. United States, 24 F.3d 42, 45 (9th Cir. 1994). The Ninth
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Circuit adopted the following framework to determine when the writ should issue:
[A] petitioner must show the following to qualify for coram nobis relief: (1) a more
usual remedy is not available; (2) valid reasons exist for not attacking the conviction
earlier; (3) adverse consequences exist from the conviction sufficient to satisfy the case
or controversy requirement of Article III; and (4) the error is of the most fundamental
character.
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Hirabayashi, 828 F.2d at 604.
C. Analysis
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Petitioner has failed to satisfy the requirements for such an extraordinary remedy. The more
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usual remedy in this case would be a petition for writ of habeas corpus filed pursuant to 28 U.S.C. §
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2254. While § 2254 relief is no longer available insofar as Petitioner is no longer in custody, he was
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in custody after the California Supreme Court denied review on April 13, 2016. He fails to state why
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he did not or could not have filed a § 2254 petition at that point. Petitioner fails to satisfy the second
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requirement since he provides no valid reason for not attacking the conviction earlier.
Moreover, Petitioner fails to show that the error is of “the most fundamental character.”
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Hirabayashi, 828 F.2d at 604. He presents a litany of claims which he presented to the state courts,
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and he alleges the state court rejection of those claims was unreasonable. He claims the trial court
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erred in admitting certain evidence; he claims the evidence was insufficient to support a gang
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enhancement, the gang crime, and the criminal threat crime; and, he claims defense counsel rendered
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ineffective assistance with certain remarks in closing argument and by failing to present evidence.
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These are typical habeas claims, not “errors of the most fundamental character.” Matus-Leva, 287
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F.3d at 760. Consequently, the Court finds that the extraordinary writ of error coram nobis should not
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be available in this case.
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III.
RECOMMENDATION
Accordingly, the Court RECOMMENDS that the Petition for Writ of Error Coram Nobis be
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SUMMARILY DISMISSED.
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This Findings and Recommendation is submitted to the United States District Court Judge
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assigned to this case, pursuant to the provisions of 28 U.S.C. section 636 (b)(1)(B) and Rule 304 of the
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Local Rules of Practice for the United States District Court, Eastern District of California. Within
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twenty-one days after being served with a copy, Petitioner may file written objections with the Court.
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Such a document should be captioned “Objections to Magistrate Judge’s Findings and
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Recommendation.” The Court will then review the Magistrate Judge’s ruling pursuant to 28 U.S.C. §
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636 (b)(1)(C). Petitioner is advised that failure to file objections within the specified time may waive
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the right to appeal the District Court’s order. Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991).
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IT IS SO ORDERED.
Dated:
March 1, 2017
/s/ Jennifer L. Thurston
UNITED STATES MAGISTRATE JUDGE
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