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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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 CLIMACO LOPEZ, Case No. 15cv2810-BTM (JLB) 12 Petitioner, 13 14 v. 15 16 17 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 18 19 (3) DECLINING TO ISSUE A CERTIFICATE OF APPEALABILITY 20 21 Petitioner Climaco Lopez is a state prisoner proceeding pro se and in forma pauperis 22 with a Petition for a Writ of Habeas Corpus filed pursuant to 28 U.S.C. § 2254. (ECF No. 23 1.) Petitioner challenges his convictions from the San Diego County Superior Court, 24 obtained as a result of a guilty plea, and the resultant sentence of twenty five years to life 25 in state prison, claiming that he received ineffective assistance of counsel in connection to 26 his plea, and that his plea was not knowing and voluntary. (Id. at 6-13.) Presently before 27 the Court is a Report and Recommendation (“R&R”) by United States Magistrate Judge 28 Jill L. Burkhart. (ECF No. 15.) The Magistrate Judge recommends denying habeas relief 1 15cv2810-BTM (JLB) 1 based on a finding that the adjudication of Petitioner’s claims by the state court is neither 2 contrary to, nor involves an unreasonable application of, clearly established federal law, 3 and is not based on an unreasonable determination of the facts in light of the evidence 4 presented in the state court proceedings. (R&R at 5-18, citing 28 U.S.C. § 2254(d) (“An 5 application for a writ of habeas corpus on behalf of a person in custody pursuant to the 6 judgment of a State court shall not be granted with respect to any claim that was adjudicated 7 on the merits in State court proceedings unless the adjudication of the claim—(1) resulted 8 in a decision that was contrary to, or involved an unreasonable application of, clearly 9 established Federal law, as determined by the Supreme Court of the United States; or (2) 10 resulted in a decision that was based on an unreasonable determination of the facts in light 11 of the evidence presented in the State court proceeding.”)) No objections to the R&R have 12 been filed. 13 The Court has reviewed the R&R pursuant to 28 U.S.C. § 636(b)(1), which provides 14 that: “A judge of the court shall make a de novo determination of those portions of the 15 report or specified proposed findings or recommendations to which objection is made. A 16 judge of the court may accept, reject, or modify, in whole or in part, the findings or 17 recommendations made by the magistrate judge.” 28 U.S.C. § 636(b)(1). With the 18 following modifications, the Court adopts the findings and conclusions of the Magistrate 19 Judge, denies the Petition, and declines to issue a Certificate of Appealability. 20 Petitioner presented his claims to the state supreme court in a habeas petition, which 21 was denied in an order that stated: “The petition for writ of habeas corpus is denied. (See 22 People v. Duvall (1995) 9 Cal.4th 464, 474.)” (Lodgment No. 9.) The only other state 23 court to which the claims were presented was the superior court, in a habeas petition which 24 was denied on the basis that Petitioner had not set forth sufficient factual support for his 25 claims. (Lodgment No. 7.) The Magistrate Judge found that the claims were “adjudicated 26 on the merits” within the meaning of 28 U.S.C. § 2254(d), because the state supreme court 27 order was presumed to be a denial on the merits of the claims, and that this Court could 28 “look though” that order and apply § 2254(d) to the last reasoned state court opinion 2 15cv2810-BTM (JLB) 1 addressing the claims, the superior court order. (R&R at 3 n.1, citing Harrington v. Richter, 2 562 U.S. 86, 89 (2011) (“When a federal claim has been presented to a state court and the 3 state court has denied relief, it may be presumed that the state court adjudicated the claim 4 on the merits in the absence of any indication or state-law procedural principles to the 5 contrary.”) (emphasis added) and R&R at 4, 6, 14, citing Ylst v. Nunnemaker, 501 U.S. 6 797, 804 (1991) (holding that there is a presumption “[w]here there has been one reasoned 7 state judgment rejecting a federal claim, later unexplained orders upholding that judgment 8 or rejecting the same claim rest upon the same ground.”) (emphasis added).) 9 It does not appear that the Ylst presumption applies to the state supreme court order 10 because it is not an unexplained order, but cites to page 474 of the Duvall opinion as its 11 reason for denying relief. It also does not appear that the Harrington presumption applies 12 because a citation to page 474 of the Duvall opinion “may mean ‘the available state 13 remedies have not been exhausted as the California Supreme Court has not been given the 14 required fair opportunity to correct the constitutional violation.’” Medley v. Runnels, 506 15 F.3d 857, 869 (9th Cir. 2007) (en banc) (Opinion of Ikuta, Circuit Judge, dissenting), 16 quoting Harris v. Superior Court, 500 F.2d 1124, 1128 (9th Cir. 1974); see also Pombrio 17 v. Hense, 631 F.Supp.2d 1247, 1251-52 (C.D. Cal. 2009) (noting that a Duvall citation 18 points to a correctable defect and therefore does not support exhaustion). In Medley, unlike 19 here, Respondent did not expressly waive the exhaustion requirement, and the district court 20 was therefore required to determine whether state court remedies still existed. Medley, 21 506 F.3d at 869, citing 28 U.S.C. § 2254(b)(3) (“A State shall not be deemed to have 22 waived the exhaustion requirement or be estopped from reliance upon the requirement 23 unless the State, through counsel, expressly waives the requirement.”) Respondent here 24 has expressly waived the exhaustion requirement by admitting in the Answer that 25 Petitioner’s claims are exhausted. (Ans. at 2.) However, there is no need for this Court to 26 determine whether Petitioner has exhausted state court remedies, or whether his claims 27 were adjudicated on the merits in state court, because it is clear for the reasons set forth in 28 the R&R that the claims fail under a de novo review. See Berghuis v. Thompkins, 560 3 15cv2810-BTM (JLB) 1 U.S. 370, 390 (2010) (holding that when it is unclear whether AEDPA deference applies, 2 a federal habeas court may conduct a de novo review to deny a petition but not to grant 3 one); see also 28 U.S.C. § 2254(b)(2) (“An application for a writ of habeas corpus may be 4 denied on the merits, notwithstanding the failure of the applicant to exhaust the remedies 5 available in the courts of the State.”) 6 The Magistrate Judge conducted a thorough and well-reasoned analysis of 7 Petitioner’s claims, which included a detailed examination of the state court record as 8 required to address claims challenging the voluntariness of a guilty plea. (R&R at 9-17.) 9 The Magistrate Judge correctly found that Petitioner had failed to demonstrate deficient 10 performance of counsel in connection to the guilty plea, failed to show prejudice arising 11 from the alleged deficient performance, and that the state court record clearly showed that 12 Petitioner’s guilty plea was knowing and voluntary. (Id.) The Court adopts those findings 13 and conclusions, with the modification that even under a de novo review of the claims, 14 Petitioner is not entitled to federal habeas relief for the reasons set forth in the R&R. 15 The Magistrate Judge recommended denying Petitioner’s request for an evidentiary 16 hearing based on the finding that 28 U.S.C. § 2254(d) had not been satisfied. (R&R at 19.) 17 The Court modifies that finding and recommendation and declines to hold an evidentiary 18 hearing because, for the reasons set forth in the R&R, Petitioner’s allegations, even if true, 19 do not entitle him to habeas relief. See Campbell v. Wood, 18 F.3d 662, 679 (9th Cir. 20 1994) (holding that an evidentiary hearing is not necessary where the federal claim can be 21 denied on the basis of the state court record, and where the petitioner’s allegations, even if 22 true, do not provide a basis for habeas relief). 23 Finally, the Court declines to issue a Certificate of Appealability because Petitioner 24 has not shown that “reasonable jurists would find the district court’s assessment of the 25 constitutional claims debatable or wrong.” Slack v. McDaniel, 529 U.S. 473, 484 (2000). 26 CONCLUSION AND ORDER 27 The Court ADOPTS AS MODIFIED the findings and conclusions of the 28 Magistrate Judge as set forth above, DENIES the Petition for a writ of habeas corpus, and 4 15cv2810-BTM (JLB) 1 DECLINES TO ISSUE a Certificate of Appealability. The Clerk shall enter judgment 2 accordingly. 3 DATED: July 10, 2017 4 5 _____________________________________ BARRY TED MOSKOWITZ UNITED STATES DISTRICT JUDGE 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 5 15cv2810-BTM (JLB)

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