Lopez v. Hadden

Filing 21

ORDER: (1) Adopting as Modified the 15 Findings and Conclusions of United States Magistrate Judge; (2) Denying Petition for a Writ of Habeas Corpus; and (3) Declining to Issue a Certificate of Appealability. Signed by Judge Barry Ted Moskowitz on 7/10/2017. (All non-registered users served via U.S. Mail Service)(rlu)

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UNITED STATES DISTRICT COURT

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SOUTHERN DISTRICT OF CALIFORNIA

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CLIMACO LOPEZ,

Case No. 15cv2810-BTM (JLB)

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Petitioner,

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v.

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RAYMOND HADDEN, Warden,
Respondent.

ORDER:
(1) ADOPTING AS MODIFIED THE
FINDINGS AND CONCLUSIONS OF
UNITED STATES MAGISTRATE JUDGE;
(2) DENYING PETITION FOR A WRIT
OF HABEAS CORPUS; and

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(3) DECLINING TO ISSUE A
CERTIFICATE OF APPEALABILITY

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Petitioner Climaco Lopez is a state prisoner proceeding pro se and in forma pauperis

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with a Petition for a Writ of Habeas Corpus filed pursuant to 28 U.S.C. § 2254. (ECF No.

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1.) Petitioner challenges his convictions from the San Diego County Superior Court,

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obtained as a result of a guilty plea, and the resultant sentence of twenty five years to life

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in state prison, claiming that he received ineffective assistance of counsel in connection to

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his plea, and that his plea was not knowing and voluntary. (Id. at 6-13.) Presently before

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the Court is a Report and Recommendation (“R&R”) by United States Magistrate Judge

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Jill L. Burkhart. (ECF No. 15.) The Magistrate Judge recommends denying habeas relief
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based on a finding that the adjudication of Petitioner’s claims by the state court is neither

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contrary to, nor involves an unreasonable application of, clearly established federal law,

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and is not based on an unreasonable determination of the facts in light of the evidence

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presented in the state court proceedings. (R&R at 5-18, citing 28 U.S.C. § 2254(d) (“An

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application for a writ of habeas corpus on behalf of a person in custody pursuant to the

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judgment of a State court shall not be granted with respect to any claim that was adjudicated

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on the merits in State court proceedings unless the adjudication of the claim—(1) resulted

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in a decision that was contrary to, or involved an unreasonable application of, clearly

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established Federal law, as determined by the Supreme Court of the United States; or (2)

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resulted in a decision that was based on an unreasonable determination of the facts in light

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of the evidence presented in the State court proceeding.”)) No objections to the R&R have

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been filed.

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The Court has reviewed the R&R pursuant to 28 U.S.C. § 636(b)(1), which provides

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that: “A judge of the court shall make a de novo determination of those portions of the

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report or specified proposed findings or recommendations to which objection is made. A

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judge of the court may accept, reject, or modify, in whole or in part, the findings or

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recommendations made by the magistrate judge.” 28 U.S.C. § 636(b)(1). With the

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following modifications, the Court adopts the findings and conclusions of the Magistrate

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Judge, denies the Petition, and declines to issue a Certificate of Appealability.

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Petitioner presented his claims to the state supreme court in a habeas petition, which

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was denied in an order that stated: “The petition for writ of habeas corpus is denied. (See

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People v. Duvall (1995) 9 Cal.4th 464, 474.)” (Lodgment No. 9.) The only other state

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court to which the claims were presented was the superior court, in a habeas petition which

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was denied on the basis that Petitioner had not set forth sufficient factual support for his

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claims. (Lodgment No. 7.) The Magistrate Judge found that the claims were “adjudicated

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on the merits” within the meaning of 28 U.S.C. § 2254(d), because the state supreme court

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order was presumed to be a denial on the merits of the claims, and that this Court could

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“look though” that order and apply § 2254(d) to the last reasoned state court opinion
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addressing the claims, the superior court order. (R&R at 3 n.1, citing Harrington v. Richter,

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562 U.S. 86, 89 (2011) (“When a federal claim has been presented to a state court and the

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state court has denied relief, it may be presumed that the state court adjudicated the claim

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on the merits in the absence of any indication or state-law procedural principles to the

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contrary.”) (emphasis added) and R&R at 4, 6, 14, citing Ylst v. Nunnemaker, 501 U.S.

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797, 804 (1991) (holding that there is a presumption “[w]here there has been one reasoned

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state judgment rejecting a federal claim, later unexplained orders upholding that judgment

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or rejecting the same claim rest upon the same ground.”) (emphasis added).)

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It does not appear that the Ylst presumption applies to the state supreme court order

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because it is not an unexplained order, but cites to page 474 of the Duvall opinion as its

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reason for denying relief. It also does not appear that the Harrington presumption applies

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because a citation to page 474 of the Duvall opinion “may mean ‘the available state

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remedies have not been exhausted as the California Supreme Court has not been given the

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required fair opportunity to correct the constitutional violation.’” Medley v. Runnels, 506

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F.3d 857, 869 (9th Cir. 2007) (en banc) (Opinion of Ikuta, Circuit Judge, dissenting),

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quoting Harris v. Superior Court, 500 F.2d 1124, 1128 (9th Cir. 1974); see also Pombrio

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v. Hense, 631 F.Supp.2d 1247, 1251-52 (C.D. Cal. 2009) (noting that a Duvall citation

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points to a correctable defect and therefore does not support exhaustion). In Medley, unlike

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here, Respondent did not expressly waive the exhaustion requirement, and the district court

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was therefore required to determine whether state court remedies still existed. Medley,

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506 F.3d at 869, citing 28 U.S.C. § 2254(b)(3) (“A State shall not be deemed to have

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waived the exhaustion requirement or be estopped from reliance upon the requirement

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unless the State, through counsel, expressly waives the requirement.”) Respondent here

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has expressly waived the exhaustion requirement by admitting in the Answer that

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Petitioner’s claims are exhausted. (Ans. at 2.) However, there is no need for this Court to

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determine whether Petitioner has exhausted state court remedies, or whether his claims

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were adjudicated on the merits in state court, because it is clear for the reasons set forth in

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the R&R that the claims fail under a de novo review. See Berghuis v. Thompkins, 560
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U.S. 370, 390 (2010) (holding that when it is unclear whether AEDPA deference applies,

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a federal habeas court may conduct a de novo review to deny a petition but not to grant

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one); see also 28 U.S.C. § 2254(b)(2) (“An application for a writ of habeas corpus may be

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denied on the merits, notwithstanding the failure of the applicant to exhaust the remedies

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available in the courts of the State.”)

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The Magistrate Judge conducted a thorough and well-reasoned analysis of

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Petitioner’s claims, which included a detailed examination of the state court record as

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required to address claims challenging the voluntariness of a guilty plea. (R&R at 9-17.)

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The Magistrate Judge correctly found that Petitioner had failed to demonstrate deficient

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performance of counsel in connection to the guilty plea, failed to show prejudice arising

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from the alleged deficient performance, and that the state court record clearly showed that

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Petitioner’s guilty plea was knowing and voluntary. (Id.) The Court adopts those findings

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and conclusions, with the modification that even under a de novo review of the claims,

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Petitioner is not entitled to federal habeas relief for the reasons set forth in the R&R.

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The Magistrate Judge recommended denying Petitioner’s request for an evidentiary

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hearing based on the finding that 28 U.S.C. § 2254(d) had not been satisfied. (R&R at 19.)

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The Court modifies that finding and recommendation and declines to hold an evidentiary

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hearing because, for the reasons set forth in the R&R, Petitioner’s allegations, even if true,

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do not entitle him to habeas relief. See Campbell v. Wood, 18 F.3d 662, 679 (9th Cir.

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1994) (holding that an evidentiary hearing is not necessary where the federal claim can be

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denied on the basis of the state court record, and where the petitioner’s allegations, even if

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true, do not provide a basis for habeas relief).

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Finally, the Court declines to issue a Certificate of Appealability because Petitioner

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has not shown that “reasonable jurists would find the district court’s assessment of the

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constitutional claims debatable or wrong.” Slack v. McDaniel, 529 U.S. 473, 484 (2000).

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CONCLUSION AND ORDER

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The Court ADOPTS AS MODIFIED the findings and conclusions of the

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Magistrate Judge as set forth above, DENIES the Petition for a writ of habeas corpus, and
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DECLINES TO ISSUE a Certificate of Appealability. The Clerk shall enter judgment

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accordingly.

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DATED: July 10, 2017

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_____________________________________
BARRY TED MOSKOWITZ
UNITED STATES DISTRICT JUDGE

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15cv2810-BTM (JLB)