Carrillo v. Smith

Filing 39

ORDER DENYING PETITION FOR WRIT OF HABEAS CORPUS; DENYING CERTIFICATE OF APPEALABILITY by Judge Thelton E. Henderson denying 32 Motion for Discovery; denying 35 Motion Discovery and Evidentiary Hearing. (Attachments: # 1 Certificate/Proof of Service)(tlS, COURT STAFF) (Filed on 5/5/2016)

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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TIMOTHY RALPH CARRILLO,

Case No.

15-cv-0997-TEH

Petitioner,
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v.

ORDER DENYING PETITION FOR
WRIT OF HABEAS CORPUS; DENYING
CERTIFICATE OF APPEALABILITY

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JIMMY SMITH,

United States District Court
Northern District of California

Respondent.

Dkt. Nos. 32, 35

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Timothy Carrillo, a state prisoner, has filed this pro se

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petition seeking a writ of habeas corpus under 28 U.S.C. § 2254.

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Respondent was ordered to show cause why the petition should not

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be granted.

Respondent has filed an answer and Petitioner filed

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a traverse.

For the reasons set forth below, the petition is

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DENIED.

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I

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A jury convicted Petitioner of multiple counts of grand

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theft, theft from an elder adult, first degree burglary, and

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other related counts.

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69041, at *1 (Cal. Ct. App. Jan. 9, 2014).

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to have a prior strike conviction and was sentenced to 35 years

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in prison, consecutive to a 25-year term that Petitioner was

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serving in Texas.

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Id.

People v. Carrillo, No. H037487, 2014 WL
Petitioner was found

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The California Court of Appeal affirmed the conviction.

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Carrillo, 2014 WL 69041, at *1.

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denied a petition for review.

The California Supreme Court
Answer, Exs. 2, 3.

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II

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The following factual background is taken from the order of
the California Court of Appeal: 1

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Posing as a licensed contractor, defendant
entered into painting, roofing, and other
repair and renovation contracts with elderly
homeowners from 2006 through 2008 and took
thousands of dollars in payment from them
without
performing
any
of
the
work
he
promised.
He was on parole and/or on
probation when he committed these offenses.

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United States District Court
Northern District of California

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On May 2, 2007, the first of three cases
alleging numerous theft-related felonies and
contracting without a license was filed
against defendant.
In late 2007, there were
warrants outstanding for his arrest in that
case and for violating his probation in a
2005 misdemeanor driving under the influence
(DUI) case by failing to enroll in a first
offender
DUI
program.
Defendant
was
apprehended on March 4, 2008, and released on
bail that same day.
On March 12, 2008, the
trial court informed him of the charges in
the felony case and revoked his probation in
the DUI case “to retain jurisdiction.”

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Two additional felony cases alleging theftrelated crimes and contracting without a
license were filed in 2008. On September 25,
2008,
defendant
failed
to
appear
for
arraignment in the three felony cases and on
the probation violation in the DUI case. The
trial court ordered his bail forfeited,
revoked his probation, and issued a bench
warrant for his arrest.

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In March 2009, the bail bondsman successfully
moved to vacate the bond forfeiture on the
ground that defendant was incarcerated in
Texas.
The district attorney told the court
it had “a hold” on defendant, who would be

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This summary is presumed correct. Hernandez v. Small, 282 F.3d
1132, 1135 n.1 (9th Cir. 2002); 28 U.S.C. § 2254(e)(1).
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United States District Court
Northern District of California

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transported to Monterey County once charges
pending against him in Texas and in Alameda
County were resolved.
On January 22, 2010, the Texas Department of
Criminal Justice (TDCJ) wrote the Monterey
County and the Santa Cruz County Sheriff's
offices that “[n]otations have been made on
our records indicating that [defendant] will
be wanted by your office upon release from
this institution.”
The TDCJ gave defendant
copies
of
both
letters
with
notices
describing his rights under the IAD.
In a December 23, 2010 letter to the Monterey
County Superior Court in Salinas, defendant
asserted that he had “received detainers from
your county as well as Santa Cruz County on
1–22–10 and filed the attached Request for
final disposition on All untried indictments,
informations or complaints from your state
which I have heard nothing from your county.”
Defendant wrote that he was “again requesting
final
disposition
of
all
indictments,
informations and complaints from your county.
. . .
Please Acknowledge receipt of this
letter
and
send
me
any
further
forms
necessary to complete my request.”
The
“attached Request” that defendant referred to
is not included in the record on appeal.
In a March 7, 2011 letter to the clerk of the
Monterey County Superior Court in Salinas,
defendant wrote, “Enclosed is an official
updated Time sheet stating term being served,
Good Time earned and parole eligibility,
please Add to file for your records.
An
additional copy will be sent to the District
Attorney's office for Mr. Pesenhofer.
The
Enclosed
is
final
paperwork
require
by
I.A.D.A. [¶] Please send response stating you
have received the enclosed Timesheet.”
In a March 21, 2011 letter to the Monterey
County Superior Court, defendant wrote, “In
addition to letter sent on 3–7–11 I am
requesting pro se that no continuances be
granted without my presence as well as no
waivers of any rights without my actual
presence in court. . . . [¶]
The above is
regarding my rights under the Interstate
Agreement on Detainers Act, which the Court
received on Feb 22, 2011.”
On April 1, 2011, Monterey County Deputy
District Attorney Glenn Pesenhofer signed and
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United States District Court
Northern District of California

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dated a “Form V—Interstate Agreement on
Detainers—Request
for
Temporary
Custody.”
Addressed to the TDCJ, the form sought
temporary custody of defendant “pursuant to
Article IV(a) of the [IAD].” Monterey County
Superior Court Judge Timothy P. Roberts
signed and dated the form on April 4, 2011,
certifying
that
Pesenhofer
was
“an
appropriate officer within the meaning of
Article IV(a) and that the facts recited in
this
request
for
temporary
custody
are
correct and that having duly recorded said
request I hereby transmit it for action in
accordance with its terms and the provisions
of the IAD.”
Despite Pesenhofer's and Judge
Roberts's handwritten attestations that they
signed Form V in April 2011, the clerk's file
stamp indicated a filing date of April 4,
2010—exactly one year before Judge Roberts
signed the form.
Defendant arrived in Monterey County from
Texas on June 20, 2011, “or there abouts [sic
].” At the beginning of his preliminary
examination on July 1, 2011, his counsel
moved to dismiss all charges on the ground
that defendant had invoked his rights under
section 1389 “over a year ago” and had not
been brought to trial within the 180–day
period prescribed by the statute.
Counsel
claimed that defendant had “forwarded a
request, in February [2010], to the warden of
the institution in which he was housed in
Texas to ask that he be brought to Monterey
County in order to face the charges. . . .
And no response was ever received from
Monterey County, nor was he transported until
earlier this year, which, again, was more
than 180 days after his initial request.”
The trial court deferred a ruling for failure
to properly notice or brief the motion.
The
preliminary
examination
proceeded,
and
defendant was held to answer.
Defendant filed a properly noticed section
1389 motion to dismiss on July 11, 2011. In
his motion papers, he asserted that upon
learning
that
Santa
Cruz
and
Monterey
counties had lodged detainers against him, he
“promptly initiated an [IAD] request, and
this written request along with the required
paperwork was forwarded to Santa Cruz County
on March 19, 2010.”
“See Exhibit C,
affidavit of TDCJ IAD Department employee,”
defendant's motion papers stated, explaining
in
a
footnote
that
the
affidavit
was
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“forthcoming”
and
would
be
submitted
“separately in advance of the motion hearing
date.”
There is no evidence in the record
that any such affidavit was ever provided to
the trial court, and it is not included in
the record on appeal.
In
his
motion
papers,
defendant
also
contended “that he also promptly initiated an
IAD request with regard to the Monterey
County detainer in February or March 2010,
however, TDCJ has no information with regard
to that request; TDCJ only shows that notice
of the detainer was sent to [defendant] on
January 22, 2010.”
The district attorney opposed defendant's
section 1389 motion on the ground that there
was “absolutely no showing” of compliance
with the IAD's procedural requirements.
The
notices of detainer from the TDCJ that
defendant
attached
to
his
motion
were
“incomplete documents,” the district attorney
pointed out.
“The signature and date pages
have been excluded, and one could argue the
reason for their exclusion is because they
are
not
favorable
to
the
defendant's
position.”
Defendant's assertion that Santa
Cruz County had dismissed its case against
defendant and cancelled its detainer, the
district attorney argued, “doesn't provide
any proof of proper notice to the Santa Cruz
County District Attorney's Office,” but “only
show[s] that Santa Cruz [County] Superior
court dismissed the case.”
The parties submitted the matter on the
papers, and the trial court denied the
motion.
“I do not feel that there is
sufficient evidence to compel the Court to
dismiss the matter,” the court explained.
The parties proceeded to trial, and defendant
was convicted and sentenced as previously
described. He filed a timely notice of
appeal.
Carrillo, 2014 WL 69041, at *1-3 (footnote omitted).

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III

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The Antiterrorism and Effective Death Penalty Act of 1996

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(“AEDPA”) amended § 2254 to impose new restrictions on federal

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habeas review.

A petition may not be granted with respect to any
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claim that was adjudicated on the merits in state court unless

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the state court’s adjudication of the claim: “(1) resulted in a

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decision that was contrary to, or involved an unreasonable

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application of, clearly established Federal law, as determined by

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the Supreme Court of the United States; or (2) resulted in a

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decision that was based on an unreasonable determination of the

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facts in light of the evidence presented in the State court

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proceeding.”

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is warranted only if the constitutional error at issue had a

28 U.S.C. § 2254(d).

Additionally, habeas relief

“substantial and injurious effect or influence in determining the

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Northern District of California

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jury’s verdict.”

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(internal quotation marks omitted).

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Penry v. Johnson, 532 U.S. 782, 795 (2001)

“Under the ‘contrary to’ clause, a federal habeas court may

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grant the writ if the state court arrives at a conclusion

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opposite to that reached by [the Supreme] Court on a question of

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law or if the state court decides a case differently than [the]

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Court has on a set of materially indistinguishable facts.”

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Williams (Terry) v. Taylor, 529 U.S. 362, 412-13 (2000).

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the ‘unreasonable application’ clause, a federal habeas court may

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grant the writ if the state court identifies the correct

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governing legal principle from [the] Court’s decisions but

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unreasonably applies that principle to the facts of the

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prisoner’s case.”

“Under

Id. at 413.

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“[A] federal habeas court may not issue the writ simply

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because that court concludes in its independent judgment that the

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relevant state-court decision applied clearly established federal

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law erroneously or incorrectly.

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also be unreasonable.”

Rather, that application must

Id. at 411.
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A federal habeas court

making the “unreasonable application” inquiry should ask whether

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the state court’s application of clearly established federal law

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was “objectively unreasonable.”

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conducting its analysis, the federal court must presume the

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correctness of the state court’s factual findings, and the

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petitioner bears the burden of rebutting that presumption by

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clear and convincing evidence.

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Court explained: “[o]n federal habeas review, AEDPA ‘imposes a

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highly deferential standard for evaluating state-court rulings’

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and ‘demands that state-court decisions be given the benefit of

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Northern District of California

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the doubt.’”

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Id. at 409.

Moreover, in

28 U.S.C. § 2254(e)(1).

As the

Felkner v. Jackson, 562 U.S. 594, 598 (2011).

Section 2254(d)(1) restricts the source of clearly

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established law to the Supreme Court’s jurisprudence.

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established Federal law, as determined by the Supreme Court of

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the United States” refers to “the holdings, as opposed to the

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dicta, of [the Supreme] Court’s decisions as of the time of the

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relevant state-court decision.”

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federal court may not overrule a state court for simply holding a

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view different from its own, when the precedent from [the Supreme

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Court] is, at best, ambiguous.”

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12, 17 (2003).

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“[C]learly

Williams, 529 U.S. at 412.

“A

Mitchell v. Esparza, 540 U.S.

When applying these standards, the federal court should

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review the “last reasoned decision” by the state courts.

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Ylst v. Nunnemaker, 501 U.S. 797, 804 (1991); Barker v. Fleming,

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423 F.3d 1085, 1091-92 (9th Cir. 2005).

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reasoned opinion from the state’s highest court, the court “looks

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through” to the last reasoned opinion.

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804.
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See

When there is no

See Ylst, 501 U.S. at

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With these principles in mind regarding the standard and

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scope of review on federal habeas, the Court addresses the sole

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claim in the petition.

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erred in denying his motion to dismiss for failure to comply with

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California’s codification of the Interstate Agreement on

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Detainers (“IAD”).

Petitioner alleges that the trial court

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IV
The IAD, codified under California statutory law by section
1389, is “an agreement between California, 47 other states, and
the federal government,” facilitating the resolution of

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Northern District of California

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detainers, based on untried indictments, informations or

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complaints filed in one jurisdiction, against defendants who have

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been imprisoned in another jurisdiction.

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Cal. App. 4th 609, 612 (2001).

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a notification filed with the institution in which a prisoner is

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serving a sentence, advising that he is wanted to face pending

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criminal charges in another jurisdiction.’”

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United States v. Mauro, 436 U.S. 340, 359 (1972) (alteration in

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original).

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that an inmate is wanted in another jurisdiction.

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asks the institution to “hold the prisoner for the agency or to

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notify the agency when release of the prisoner is imminent.”

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People v. Oiknine, 79 Cal. App. 4th 21, 23 (1999).

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detainer” must be filed before an inmate may invoke the

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provisions of the IAD.

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1251 (1989).

People v. Lavin, 88

Under the IAD, “‘[a] detainer is

Id., at 612, quoting

The lodging of a detainer is more than mere notice
A detainer

A “formal

People v. Rhoden, 216 Cal. App. 3d 1242,

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The IAD establishes a procedure under which a prisoner,

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against whom a detainer has been lodged, may demand trial within
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180 days of a written request for final disposition properly

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delivered to the prosecutor and appropriate court of the

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prosecutor's jurisdiction. Cal. Penal Code § 1389, Art. III(a);

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Lavin, 88 Cal. App. 4th at 612.

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If the state receiving the detainer request fails to act in

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compliance with the IAD, or “in the event that an action on the

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indictment, information or complaint on the basis of which the

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detainer has been lodged is not brought to trial within the

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period provided in Article III or Article IV,” an order shall be
entered dismissing the pending criminal charges with prejudice.

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Cal. Penal Code § 1389, Art. V(c); People v. Brooks, 189 Cal.

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App. 3d 866, 872 (1987).

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“In order to take advantage of the sanction of dismissal,

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the prisoner must comply with the procedural requirements of the

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IAD.”

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761-62 (9th Cir. 1986).

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transfers are found in Article III.

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Lavin, at 616; see also Johnson v. Stagner, 781 F.2d 758,
The procedures for prisoner-initiated

“‘“Article III, subdivision (a) provides that
the 180–day period is to run from the date
the
prisoner
‘shall
have
caused
to
be
delivered’ a written notice and request for
final disposition to the district attorney
and the court.
Article III, subdivision (b)
clearly states that the prisoner shall give
or send the notice and request to the warden,
commissioner of corrections or other official
having custody of the prisoner.” [¶] The
warden then prepares a certificate “stating
the term of commitment under which the
prisoner is being held, the time already
served, the time remaining to be served on
the sentence, the amount of good time earned,
the
time
of
parole
eligibility
of
the
prisoner, and any decisions of the state
parole agency relating to the prisoner.”
(§
1389, Art. III, subd. (a).)'”
Lavin, at 616 (citation omitted).
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The prisoner has the burden to

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show that a request for a speedy trial has been made.

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States v. Moline, 833 F.2d 190, 192 (9th Cir. 1987).

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See United

The California Court of Appeal set forth the relevant

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background and denied Petitioner’s claim that the trial court

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erred in denying his motion to dismiss:

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Defendant
claims
the
trial
court
prejudicially erred and violated his federal
and state constitutional rights to a speedy
trial and to due process when it denied his
section 1389 motion to dismiss the charges
against him.
The Attorney General responds
that defendant failed to show he complied
with the IAD's provisions and thus has not
established
that
the
180–day
period
prescribed by the IAD was ever triggered. We
agree with the Attorney General.

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Defendant argues that the trial court erred
in denying his section 1389 motion, since he
“made a valid demand for trial in California”
in early 2010. We find nothing in the record
to support that claim.
The letters that
defendant sent to the district attorney
and/or to the superior court were dated well
after the request he claimed to have made “in
February or March 2010” and were in any event
ineffective to invoke his rights under the
IAD because, among other deficiencies, they
were not sent through the warden of the Texas
prison.
(Castoe, supra, 86 Cal.App.3d at p.
490
[“Article III ... does not permit a
prisoner's self-help effort to start the
running of the 180–day period.”]; accord,
Lavin, supra, 88 Cal.App.4th at pp. 616–617
[demand sent directly to the court was
“clearly insufficient to invoke the time
period of section 1389”].)

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Northern District of California

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In his motion below, defendant purported to
rely on a “forthcoming” affidavit of a “TDCJ
IAD
Department
employee,”
but
no
such
affidavit was ever produced, and defendant
was forced to concede that the TDCJ had “no
information” about the IAD request that he
claims to have made “in February or March
2010.” (Italics omitted.)
Thus, no evidence
supports his claim that he made a valid IAD
demand “in February o[r] March 2010.”
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Defendant argues, however, that the Santa
Cruz County Superior Court's May 26, 2010
dismissal of its case against him and the
TDCJ's subsequent cancellation of Santa Cruz
County's
detainer
“establishes
that
[defendant] properly presented his demands
for trial to the warden of the Texas prison,
who would have been required to forward them,
along with the certifications, to both the
Santa
Cruz
County
authorities
and
the
Monterey County authorities.”
We are not
persuaded.
The minutes of the May 26, 2010
hearing state that the Santa Cruz charges
against defendant were “dismissed in the
interest of justice.” They establish nothing
more than that.
Defendant argues that the IAD request he
claims to have made “in February or March
2010” must have been delivered to Monterey
County
because
“the
district
attorney
responded
by
requesting
[defendant's]
temporary custody in a form filed on April 4,
2010.” The argument lacks merit.
It
is
pure
speculation
that
the
form
defendant relies on was sent in response to
any sort of communication from him.
It is
doubtful, moreover, that the form was “filed
on April 4, 2010.”
Entitled “Form V—
Interstate Agreement on Detainers—Request for
Temporary Custody,” the form was signed and
dated by Pesenhofer and by Judge Roberts on
April 1 and April 4, 2011.
The file stamp
indicates a filing date a year earlier, on
April 4, 2010.
“The significance here,” defendant urges, “is
the filing date of April 4, 2010.”
This is
his only reference to the obvious disparity
between the “2010” file stamp and the “2011”
dates that Pesenhofer and Judge Roberts both
handwrote
next
to
their
signatures.
Defendant does not attempt to explain how
Pesenhofer and Judge Roberts, who signed and
dated the request three days apart, could
both have gotten the year wrong.
He simply
assumes that the 2010 file stamp date is the
correct
one.
We
find
the
assumption
insupportable.
We think it is far more likely that the
filing date stamped on the document was the
result of clerical error.
Pesenhofer signed
the request for temporary custody on April 1,
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2011.
Judge Roberts signed it three days
later, on April 4, 2011.
The date Judge
Roberts handwrote on the document and the
date the court clerk stamped on it are
exactly one year apart.
Clerical error is
the most reasonable explanation for the
discrepancy.
(See, e.g., People v. Barnes
(1990) 219 Cal. App. 3d 1468, 1472, fn. 3
[“The motion bears the clerk's filing stamp
of January 25, 1988, but the motion is dated
January 25, 1989, and it is clear from the
sequence of events in the record that the
correct date for that motion is 1989; this is
only a clerical error.”]; Price v. Grayson
(1969) 276 Cal. App. 2d 50, 54 [“This second
delay without any activity was interrupted on
April
1,
1968,
by
defendant
who,
miscalculating the time through a clerk's
error in affixing the filing date to her copy
of the complaint (the stamp shows 1963
instead
of
1964),
filed
a
motion
to
dismiss.”].)
Our conclusion is bolstered by the fact that
an April 4, 2011 filing date fits the
sequence of events in the record.
Two
plausible scenarios support an April 4, 2011
filing date; none support an April 4, 2010
filing date.
The form states on its face that it was made
“pursuant to Article IV(a) of the [IAD].” It
also
states
that
the
district
attorney
“propose[d] to bring this person to trial ...
within the time specified in Article IV(c) of
the IAD.”
This language suggests to us that
defendant's transfer was initiated not by
defendant under article III of the IAD but
instead
by
the
district
attorney
under
article IV.
(§ 1389, art. IV.)
Pesenhofer
signed the request on April 1, 2011; Judge
Roberts approved it, and it was presumably
then sent to Texas. (§ 1389, art. IV, subd.
(a).)
Defendant
arrived
in
California
approximately 11 weeks later.
The 11–week
interim would have given the Texas prison
authorities time to make arrangements for his
transfer and, more importantly, to comply
with the IAD's requirement of a 30–day
waiting
period
“after
receipt
by
the
appropriate authorities [of a prosecutorinitiated request] before the request be
honored, within which period the governor of
the sending state may disapprove the request
for temporary custody. . . .” (§ 1389, art.
IV, subd. (a).)
Defendant's trial commenced
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on August 15, 2011, eight weeks after his
arrival and, therefore, well within the 120–
days–after–arrival limitations period that
the IAD prescribes for prosecutor-initiated
transfers. (§ 1389, art. IV, subd. (c).)
Defendant's
own
assertions
suggest
an
alternative scenario that also fits the
sequence of events in the record.
Defendant
claimed to have made a “second” IAD request
in early 2011. In his motion papers, he
asserted that he “[f]inally . . . decided to
cause delivery himself to Monterey County of
his IAD request. . . . On February 22, 2011,
Monterey County received [this] personally
served
notice
of
request
for
final
disposition pursuant to [the] IAD and caused
[defendant] to be delivered to the State of
California. . . .”
Defendant's claimed
second request is not in the record, but
there are references to it.
At a trialsetting conference on July 1, 2011, for
example, his trial counsel referred to “the
1389 that has been accepted by the District
Attorney” and stated that “[o]n the 1389
demand that was received by the District
Attorney, the last day [to try the case]
would . . . be [August] 20th. . . .”.
The IAD requires that a defendant be brought
to trial within 180 days after the court and
the prosecuting authority actually receive a
prisoner-initiated IAD transfer request. (§
1389, art. III, subd. (a); Fex, supra, 507
U.S. at p. 52.)
August 20, 2011, which the
defense asserted was the “last day” to try
the case under section 1389, is 180 days
after February 22, 2011, the date on which
defendant
claimed
the
district
attorney
“accepted” his IAD request.
The record thus supports a conclusion that
the form request for temporary custody was
triggered either by the district attorney or
by an IAD request that defendant initiated in
2011 rather than “in February or March 2010.”
Defendant's reliance on the form to support
his
section
1389
motion
was
therefore
misplaced.
There was no evidence to support
his claim that he invoked the protection of
the IAD in 2010.
The trial court properly
denied defendant's motion.
(E.g., People v.
Garner (1990) 224 Cal. App. 3d 1363, 1370–
1371 [section 1389 motion properly denied
where, among other things, “[t]he record here
shows
neither
the
October
nor
November
13

1
2
3
4
5
6
7
8
9

request
was
presented
to
the
warden”];
Brooks, supra, 189 Cal. App. 3d at p. 869
[section 1389 motion properly denied where,
among other things, there was “no evidence
the Oregon State Penitentiary authorities
completed
the
certificate
required
to
accompany Brooks's IAD request.”].)
It follows that there was no violation of
defendant's constitutional rights.
(People
v. Osband (1996) 13 Cal. 4th 622, 675
[“Because there was no state law error,
neither
was
there
any
predicate
for
a
constitutional violation.”].)”
Carrillo, 2014 WL 69041, at *3-6.
The Supreme Court has held that habeas review under Article
IV(c) of the IAD is not available unless the error qualifies as a

11
United States District Court
Northern District of California

10

“fundamental defect which inherently results in a complete

12

miscarriage of justice [or] an omission inconsistent with the

13

rudimentary demands of fair procedure.”

14

339, 348 (1994) (alteration in original) (citing Hill v. United

15

States, 368 U.S. 424, 428 (1962).

16

technical violation of the 120–day speedy trial rule in Article

17

IV(c) of the IAD is not cognizable “when the defendant registered

18

no objection to the trial date at the time it was set, and

19

suffered no prejudice attributable to the delayed commencement.”

20

Id. at 342.

21

consider” whether it would confront such a violation “if a state

22

court, presented with a timely request to set a trial date within

23

the IAD's 120–day period, nonetheless refused to comply with

24

Article IV(c),” the Supreme Court expressly reserved the question

25

of whether federal habeas review is available to check speedy

26

trial prescriptions when the state court disregards timely pleas

27

for their application.

Reed v. Farley, 512 U.S.

The Court found that a

However, stating that the facts gave it “no cause to

Id. at 349.

28
14

1

In several pre-Reed and pre-AEDPA cases examining the speedy

2

trial and “anti-shuttling” provisions of the IAD, the Ninth

3

Circuit split on the issue of whether particular violations of

4

the IAD warrant habeas relief.

5

102–03 (9th Cir. 1980), the court found the speedy trial

6

violation under section IV(c) of the IAD was cognizable on habeas

7

review.

8

of the IAD, the Ninth Circuit has held that violation of that

9

provision is not a fundamental defect warranting habeas relief.

In Cody v. Morris, 623 F.2d 101,

Examining the anti-shuttling provision of Article IV(e)

See Hitchcock v. United States, 580 F.2d 964, 966 (9th Cir.

11
United States District Court
Northern District of California

10

1978).

12

the Ninth Circuit followed Hitchcock in holding that a violation

13

of Article IV(e)'s anti-shuttling provision does not give rise to

14

a cognizable claim under § 2254 as the violation does not rise to

15

the required level of seriousness under the fundamental defect

16

test of Hill.

17

In Carlson v. Hong, 707 F.2d 367, 368 (9th Cir. 1983),

Assuming that Petitioner’s IAD claim is cognizable on

18

federal habeas reviews, he is not entitled to relief.

19

California Court of Appeal conducted an extensive review of the

20

record and found that Petitioner’s rights had not been violated

21

by any noncompliance with the IAD.

22

not an unreasonable application of Supreme Court authority or an

23

unreasonable determination of the facts.

24

discussed in detail Petitioner’s allegations that he submitted

25

notice in early 2010 directly to the district attorney, who did

26

not receive it, and the court found that even if these letters

27

had been sent they were not in accordance with IAD procedures.

28

IAD procedures require the notice to be sent via the warden of
15

The

The state court’s finding was

The state court

1

the Texas prison where Petitioner was being held.

2

The state court also found Petitioner’s arguments that he

3

submitted the proper forms to the Texas warden to be equally

4

unavailing.

5

prison employee verifying that Petitioner had submitted the

6

paperwork would be provided to the trial court to demonstrate his

7

compliance.

8

indication this affidavit was every submitted to the trial court

9

and it was not part of the record before the California Court of

10

Appeal.

United States District Court
Northern District of California

11

Petitioner stated that an affidavit from a Texas

Clerk’s Transcript (“CT”) at 210.

There is no

Carrillo, 2014 WL 69041, at *4.

The California Court of Appeal also noted that Petitioner

12

conceded that the Texas prison had no information about his IAD

13

request allegedly made in early 2010.

14

court found that after reviewing the record it was more likely

15

that Petitioner submitted his request in early 2011 and that he

16

was timely brought to California for trial.

17

were not unreasonable.

18

Id.

Ultimately, the state

These determinations

A review of the record shows that in January 2010, the Texas

19

Department of Criminal Justice (TDCJ) sent a letter to Monterey

20

County and Santa Cruz County indicating that Petitioner was in

21

custody in Texas and was wanted by those counties.

22

220.

23

request disposition of the detainer pursuant to the IAD.

24

217, 219.

25

Santa Cruz County, and the detainer was cancelled on August 9,

26

2010.

27
28

CT at 218.

The TDCJ provided Petitioner with information on how to
CT at

Petitioner requested disposition of the detainer in

CT at 223.
Yet, Petitioner’s arrest in Santa Cruz County is not at

issue in this petition.

Petitioner argues that his request of
16

1

disposition of the detainer in Santa Cruz County shows that he

2

also requested disposition of the detainer in Monterey County in

3

2010 as opposed to 2011, the year which the state court found he

4

requested it.

5

Cruz County in 2010 does not demonstrate that he must have done

6

the same with Monterey County.

7

why there is proof of the Santa Cruz County request, but no

8

paperwork or proof regarding his requests for the Monterey County

9

detainer.

That he followed the proper procedures with Santa

Petitioner offers no explanation

Petitioner’s requested disposition of the detainer in

Santa Cruz County may support his argument that he also followed

11
United States District Court
Northern District of California

10

suit in Monterey County in 2010, but Petitioner has failed to

12

meet his burden in rebutting the presumption of correctness of

13

the state court’s finding because he has not presented clear and

14

convincing evidence to the contrary.

15

(e)(1).

16

See 28 U.S.C. § 2254

Even assuming there was a violation of the IAD, Petitioner

17

has failed to show that he suffered prejudice from any delay.

18

During trial, Petitioner stated to the trial court, outside of

19

the presence of the jury, “I have no defense, no witnesses on my

20

behalf, so it’s useless.

21

to even put on a defense, just to let her do what she has to do

22

and get this over with.”

23

any arguments in the petition addressing how any delay prejudiced

24

him or his ability to present a defense.

25

That’s why I asked [trial counsel] not

RT at 609.

Nor did Petitioner present

To the extent Petitioner raises a violation of his right to

26

a speedy trial independent of the IAD, he is not entitled to

27

relief.

28

accused by the Sixth Amendment to the Constitution and imposed by

A speedy trial is a fundamental right guaranteed the

17

1

the Due Process Clause of the Fourteenth Amendment on the states.

2

Klopfer v. North Carolina, 386 U.S. 213, 223 (1967).

3

rule has been devised to determine whether the right to a speedy

4

trial has been violated.

5

"functional analysis," Barker v. Wingo, 407 U.S. 514, 522 (1972),

6

and consider and weigh the following factors in evaluating a

7

Sixth Amendment speedy trial claim: (1) length of the delay; (2)

8

the reason for the delay; (3) the defendant's assertion of his

9

right; and (4) prejudice to the defendant.

No per se

Instead, courts must apply a flexible

Doggett v. United

States, 505 U.S. 647, 651 (1992); Barker, 407 U.S. at 530.

11
United States District Court
Northern District of California

10

Looking at all these factors, Petitioner is not entitled to

12

relief.

13

he asserted a speedy trial violation when he states he did and he

14

was promptly transferred to California for trial when the proper

15

procedures were followed.

16

discussed above.

17

denied.

The record does not support Petitioner’s argument that

For all these reasons, this habeas petition is

18
19

Moreover, there was no prejudice as

V
Petitioner has also filed a motion for discovery and a

20

motion for an evidentiary hearing.

21

Petitioner requests the Court to review evidence he submitted on

22

June 22, 2015.

23

the Clerk’s Transcript.

24

includes letters from TDCJ to Santa Cruz County in which

25

Petitioner requested a disposition of the detainer (Docket No. 19

26

at 11, 14), but a similar letter is already part of the record

27

(CT at 223).

28

regarding Monterey County that would be relevant to his petition.

In the motion for discovery,

The majority of this evidence is already part of
See, e.g. CT at 217-23.

Petitioner

Petitioner’s motion contains no additional evidence

18

1
2

The motion is denied.
Petitioner has also requested an evidentiary hearing.

In

3

Cullen v. Pinholster, 563 U.S. 170 (2011), the United States

4

Supreme Court held that federal review of habeas corpus claims

5

under § 2254(d)(1) is “limited to the record that was before the

6

state court that adjudicated the claim on the merits.”

7

at 181.

8

in federal court may not be used to determine whether a state

9

court decision on the merits of a petitioner's habeas claim

563 U.S.

Therefore, evidence introduced at an evidentiary hearing

violates § 2254(d).

11
United States District Court
Northern District of California

10

Pinholster, the holding of an evidentiary hearing in a federal

12

habeas proceeding is futile unless the district court has first

13

determined that the state court's adjudication of the

14

petitioner's claims was contrary to or an unreasonable

15

application of clearly established federal law, and therefore not

16

entitled to deference under § 2254(d)(1), or that the state court

17

unreasonably determined the facts based upon the record before

18

it, and therefore deference is not warranted pursuant to §

19

2254(d)(2).

Id. at 182.

Following the decision in

20

The Ninth Circuit has also recognized that Pinholster

21

“effectively precludes federal evidentiary hearings” on claims

22

adjudicated on the merits in state court.

23

738 F.3d 976, 993 (9th Cir. 2013); see also Sully v. Ayers, 725

24

F.3d 1057, 1075 (9th Cir. 2013) (“Although the Supreme Court has

25

declined to decide whether a district court may ever choose to

26

hold an evidentiary hearing before it determines that § 2254(d)

27

has been satisfied, an evidentiary hearing is pointless once the

28

district court has determined that § 2254(d) precludes habeas
19

Gulbrandson v. Ryan,

1
2

relief.”) (internal quotation marks and citation omitted).
Petitioner does not sufficiently articulate why an

3

evidentiary hearing is needed, and the Court can discern no

4

reason why one would be necessary.

5

who may have testimony that is helpful and he seeks to introduce

6

documents.

7

discussed above.

8

documents that are necessary.

9

determined that the state court's decision was not contrary to or

He wishes to call witnesses

The documents he has submitted have already been
He does not describe the existence of other
Moreover, this Court has already

an unreasonable application of clearly established federal law.

11
United States District Court
Northern District of California

10

Nor was it an unreasonable determination of the facts.

12

Therefore, petitioner's motion for an evidentiary hearing is

13

denied.

14
15

VI
For the foregoing reasons, the petition for a writ of habeas

16

corpus is DENIED.

17

32) and motion for an evidentiary hearing (Docket No. 35) are

18

DENIED for the reasons discussed above.

19

Petitioner’s motion for discovery (Docket No.

Further, a Certificate of Appealability is DENIED.

See Rule

20

11(a) of the Rules Governing Section 2254 Cases.

21

not made “a substantial showing of the denial of a constitutional

22

right.”

23

that “reasonable jurists would find the district court’s

24

assessment of the constitutional claims debatable or wrong.”

25

Slack v. McDaniel, 529 U.S. 473, 484 (2000).

26

appeal the denial of a Certificate of Appealability in this Court

27

but may seek a certificate from the Court of Appeals for the

28

Ninth Circuit under Rule 22 of the Federal Rules of Appellate

28 U.S.C. § 2253(c)(2).

Petitioner has

Nor has Petitioner demonstrated

20

Petitioner may not

1

Procedure.

2

Cases.

3

See Rule 11(a) of the Rules Governing Section 2254

The Clerk is directed to enter Judgment in favor of

4

Respondent and against Petitioner, terminate any pending motions

5

as moot and close the file.

6

IT IS SO ORDERED.

7

Dated: 5/4/2016

8

________________________
THELTON E. HENDERSON
United States District Judge

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