Julieta v. Frauenheim

Filing 12

REPORT AND RECOMMENDATION Regarding Respondent's 9 Motion to Dismiss. It is Recommended that Respondent's Motion to Dismiss is Granted in part and Denied in part. It is Recommended that Petitioner's grounds one through three are Dismissed. Objections to R&R due by 2/17/2017. Replies due by 3/3/2017. Signed by Magistrate Judge Bernard G. Skomal on 2/3/2017.(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 JULIO JULIETA, Case No.: 16cv987-BTM-BGS Petitioner, 12 13 14 REPORT AND RECOMMENDATION REGARDING RESPONDENT'S MOTION TO DISMISS v. S. FRAUENHEIM, Warden, Respondent. 15 16 I. 17 INTRODUCTION Petitioner Julio Julieta1 (“Petitioner”), a state prisoner, has filed a Petition for Writ 18 19 of Habeas Corpus pursuant to 28 U.S.C. § 2254 (“Petition”), challenging his conviction 20 for aggravated kidnapping for purposes of extortion, Cal. Penal Code § 209(a), assault 21 with a firearm, Cal. Penal Code § 245(a)(2), torture, Cal. Penal Code § 206, two counts of 22 forcible rape, Cal. Penal Code § 261(a)(2), and forcible sodomy, Cal. Penal Code § 23 286(c)(2). (ECF No. 1.) Presently before the Court is Respondent’s Motion to Dismiss. (ECF No. 9-1.) 24 25 Respondent contends the Petition should be dismissed because the first three claims are 26 moot, and the last three claims fail to raise constitutional issues. (Id.) Petitioner filed a 27 28 1 Plaintiff previously went by the name of Ulyses Beltran. 1 16cv987-BTM-BGS 1 response on October 4, 2016. (ECF No. 11.) The Motions were taken under submission 2 without oral argument pursuant to So. Dist. CA Local Civ. Rule 7.1(d)(1) and are now 3 ready for disposition. For the following reasons, the Court RECOMMENDS that 4 Respondent’s Motion to Dismiss be GRANTED in part and DENIED in part. 5 II. 6 A San Diego jury convicted Petitioner of aggravated kidnapping for purposes of STATE AND FEDERAL PROCEEDINGS 7 extortion, Cal. Penal Code § 209(a)), assault with a firearm, Cal. Penal Code § 245(a)(2), 8 torture, Cal. Penal Code § 206, two counts of forcible rape, Cal. Penal Code § 261(a)(2), 9 and forcible sodomy, Cal. Penal Code § 286(c)(2). The jurors further found that 10 Petitioner had personally used a firearm during all of the offenses other than the torture 11 and assault, Cal. Penal Code § 12022.53(b), that he had inflicted great bodily injury upon 12 the victim during the sex crimes, Cal. Penal Code § 12022.8, and that he had committed 13 the sex crimes in various manners that triggered the One Strike sentencing provisions of 14 Cal. Penal Code § 667.61. The jury acquitted Petitioner of kidnapping the victim for 15 purposes of rape, and acquitted him of additional counts of rape and sodomy. (See ECF 16 No. 9, Ex. B at 429-43; Ex. C at 721-37); see also People v. Beltran, 2015 WL 138749 at 17 *2 (Cal. Ct. App. Jan. 12, 2015), review denied (Apr. 22, 2015). 18 Petitioner was sentenced to forty years, determinate, in state prison to be followed 19 by a term of fifty years to life, indeterminate. (ECF No. 9, Ex. C at 661-64, 743-45.) 20 Petitioner appealed, raising six arguments. The first three arguments concerned the 21 kidnapping-for-extortion conviction. The California Court of Appeal reversed the 22 kidnapping conviction, holding that there was insufficient evidence that Petitioner had 23 tried to extort property, as opposed to information, from the victim. The California Court 24 of Appeal declined to address the remaining two arguments regarding jury instructions 25 for the kidnapping charge. 26 As to the remaining arguments, the California Court of Appeal denied relief on a 27 state-law sentencing question by holding that there was a sufficient delay between some 28 of the sex crimes to permit two separate one-strike sentences. People v. Beltran, 2015 2 16cv987-BTM-BGS 1 WL 138749 at *5 (applying, e.g., People v. Jones, 25 Cal. 4th 98, 101, 107 (2001)). The 2 court held there were no other errors, and it reviewed sealed immigration records 3 regarding the victim before concluding that the trial court had acted within its discretion 4 in not disclosing them to the defense. People v. Beltran, 2015 WL 138749 at *6 n.7 5 (distinguishing Brady v. Maryland, 373 U.S. 83, 87-88 (1963)). 6 Petitioner filed a petition for review that raised all six claims, but the California 7 Supreme Court denied review in April 2015. (ECF No. 9, Exs. J and K.) In June 2015, 8 Petitioner was resentenced to a term of thirty years, determinate, plus fifty years to life. 9 (ECF No. 9, Exs. L and M.) 10 III. 11 Rule 4 of the Rules Governing Section 2254 Cases in the United States District RELEVANT LAW 12 Courts expressly permits a district court to dismiss a habeas petition “[i]f it plainly 13 appears from the petition and any attached exhibits that the petitioner is not entitled to 14 relief in the district court.” See also Gutierrez v. Griggs, 695 F.2d 1195, 1198 (9th Cir. 15 1983) (“Rule 4 explicitly allows a district court to dismiss summarily the petition on the 16 merits when no claim for relief is stated”). 17 18 19 IV. DISCUSSION OF PETITIONER’S CLAIMS A. Grounds One Through Three The first three grounds that Petitioner raises concern his conviction for kidnapping 20 for extortion. Ground one claims that the evidence was insufficient to support the 21 conviction for kidnapping for ransom, reward, or extortion as charged in count one. 22 (ECF No. 1 at 6.) With respect to his claim, Petitioner argues that “no reasonable trier of 23 fact could find that kidnapping someone for information is legally sufficient to prove that 24 appellant kidnapped Guadalupe for ‘ransom,’ reward or to commit extortion or to exact 25 from another person any money or valuable thing.” (Id. at 7.) Petitioner argues that this 26 conviction is a violation of his Fourteenth Amendment right to due process. (Id. at 8.) 27 In ground two, Petitioner claims that the trial court violated his Sixth and 28 Fourteenth Amendment rights when it failed to instruct the jury on the lesser included 3 16cv987-BTM-BGS 1 offense of felony false imprisonment, where the jury could have found the lesser but not 2 the greater offense was committed. (Id. at 14-20.) In ground three, Petitioner claims that 3 his Sixth and Fourteenth Amendment rights were violated when the trial court instructed 4 the jury that he could be guilty of kidnapping if he did so to get money or something 5 valuable, when the statute plainly requires that money or a valuable thing be exacted 6 from another person. (Id. at 22.) 7 Respondent argues that these three grounds concern a conviction that was reversed 8 by the California Court of Appeal due to insufficient evidence. (ECF No. 9-1 citing 9 People v. Beltran, 2015 WL 138749, at *3-4.) Respondent also notes that Petitioner was 10 re-sentenced in June of 2015, wherein his sentence was reduced by the ten years he had 11 previously been given for the kidnapping charge. (Id.) As a result, Respondent argues 12 that these three grounds are moot. (Id.) According to Petitioner, the fact that he received 13 a lesser sentence of ten years, and not forty years, indicates that the California Court of 14 Appeal did afford him relief on these grounds. (ECF No. 11 at 3.) 15 The Court agrees that Petitioner’s claims regarding his kidnapping charge are 16 moot, as they were reversed by the California Court of Appeals in 2015. People v. 17 Beltran, 2015 WL 138749, at *3-4. Petitioner also received a reduced sentence as a 18 result of the reversal of this charge. (ECF No. 9-14, Ex. M at 3-4.) Petitioner’s argument 19 that he should have received a lesser sentence is without merit. The Superior Court 20 during the resentencing stated the following with respect to Petitioner’s sentence: 21 22 23 24 25 26 27 28 So a Judgment of Acquittal having been – a Judgment of Acquittal is entered now as to count one and the sentence is vacated as to count one. And the sentence as to the allegation attendant to count one, the allegation pursuant to Penal Code Section 12022.5(b), is also vacated. The remaining counts, judgment was affirmed by the Appellate Court. And so for the purposes of sentencing, the Court having entered a Judgment of Acquittal as to count one and vacated count one and the allegation attendant to count, once again probation is denied. The defendant is remanded to the custody of the Department of Corrections as to Count five for a total of 25 years to life and to count six for a term of 25 years to life, with counts – with both counts to 4 16cv987-BTM-BGS 1 run consecutive to one another. Additionally, the defendant is, once again, sentenced to a additional consecutive term of 20 years as to counts five and six pursuant to penal code section 12022.53(b), ten years as to each count. And an additional consecutive term of ten years as to counts five and six pursuant to Penal Code Section 12022.8, five years as to each count. For a total of fifty years to life, plus thirty years. Once again, the 30 years shall be served first. 2 3 4 5 6 7 (ECF No. 9-14, Ex. M at 3-4.) Petitioner provides no support for his argument that 8 his sentence should have been reduced by forty years upon the acquittal of the 9 kidnapping charge. Indeed, Petitioner remained convicted of 1) assault with a 10 firearm, 2) torture, 3) two counts of forcible rape, and 4) forcible sodomy. 11 Petitioner received twenty-five years for each count of forcible rape (Id. at 3), and 12 thirty years for the enhancements. (Id. at 3-4.) 13 Because Petitioner was acquitted of the kidnapping charge, there is no conviction 14 for the Court to review. As a result, it plainly appears from the Petition that he is not 15 entitled to relief. Gutierrez, 695 F.2d at 1198. The Court, therefore, RECOMMENDS 16 that Respondent’s Motion to Dismiss and to counts one, two and three be GRANTED. 17 B. Ground Four 18 In ground four, Petitioner argues that his multiple one-strike life sentence violated 19 former penal code section 667.612 and his due process rights. (ECF No. 11 at 27.) 20 Petitioner argues that Counts 5, 6 and 7 were committed in close temporal and spatial 21 proximity where the victim remained under his “continuous and uninterrupted control.” 22 (Id. at 27.) As a result, Petitioner argues that the trial court improperly imposed separate 23 24 25 26 27 28 The former version of California Penal Code § 667.61(g) stated in relevant part: “The term specified in subdivision (a) [i.e., 25 years to life] . . . shall be imposed on the defendant once for any offense or offenses committed against a single victim during a single occasion . . . Terms for other offenses committed during a single occasion shall be imposed as authorized under any other law, including Section 667.6, if applicable.” (Emphasis added). Under this version of § 667.61(g), “sex offenses occurred on a ‘single occasion’ if they were committed in close temporal and spatial proximity.” People v. Jones, 25 Cal.4th 98, 107, 104 Cal.Rptr.2d 753, 18 P.3d 674 (2001). 2 5 16cv987-BTM-BGS 1 one strike twenty-five years to life sentences under section 667.61(a). (Id. at 30.) 2 As a basic proposition, only claims which allege a violation of the federal 3 constitution, laws or treaties are cognizable on federal habeas review. See 28 U.S.C. § 4 2254(a) (West 2006); Estelle v. McGuire, 502 U.S. 62, 67-68 (1991). Habeas relief is not 5 available for an alleged error in the interpretation or application of state law, unless it 6 involves “fundamental unfairness.” Id. Because there is a possibility that Petitioner’s 7 sentence could amount to “fundamental unfairness,” it cannot plainly appear from the 8 Petition that he is not entitled to relief. Gutierrez, 695 F.2d at 1198. As a result, the 9 Court RECOMMENDS that Respondent’s Motion to Dismiss regarding Petitioner’s 10 11 12 fourth ground for relief be DENIED. C. Ground Six In Ground Six, Petitioner requests a “Pitches-type review” of immigration 13 documents regarding the victim in his criminal case. (ECF No. 1 at 35.) Petitioner 14 explains that he seeks an in camera review of any documents placed under seal by the 15 trial court. (Id. at 36.) Respondent argues that Petitioner has no constitutional right to 16 receive discovery, let alone post-conviction discovery. (ECF No. 9-1 at 6.) Moreover, 17 according to Respondent, even if this request was granted, it would not lead to a release 18 from custody. (Id.) 19 The California Court of Appeal analyzed this claim, and stated the following: 20 21 22 23 24 25 26 27 28 Before trial, defense counsel sought information as to whether Guadalupe had obtained from the district attorney any promises of immigration relief in the form of either a “U-visa” that would allow her to remain in the United States as a crime victim, or some other favorable consideration. The district attorney’s office was then in the process of obtaining Guadalupe’s immigration file to determine if it contained discoverable Brady-type7 material. The trial court eventually obtained the documents and informed counsel it would conduct an in camera review, and it later ordered them placed under seal at the conclusion of the case. Asserting this court has a “constitutional responsibility to review trial court decisions where important rights are concerned,” defendant asks that 6 16cv987-BTM-BGS 1 2 3 4 5 6 7 we independently review the sealed records to determine if any of the documents or other materials were discoverable, and whether the court properly withheld disclosure of any documents or information. We have done so, and conclude the trial court neither abused its discretion in finding none of the materials was discoverable and that disclosure of the information was not appropriate, nor did the court violate any “important” right. (See, e.g., People v. Myles (2012) 53 Cal.4th 1181, 1209 [applying abuse of discretion standard].) While the Court agrees that a request for in camera review of state court discovery 8 proceedings is not cognizable on federal habeas review, Randolph v. Adams, 2006 WL 9 2032542 (N.D. Cal. 2006), the Court disagrees that this claim does not present a federal 10 issue. Courts are required to liberally construe habeas petitions to effectuate the apparent 11 intent. Hernandez v. Holland, 750 F.3d 843, 858 (9th Cir. 2014) (citing Allen v. 12 Calderon, 408 F.3d 1150, 1153 (9th Cir. 2005.)) Here, although Petitioner’s claim 13 requests an in camera review of documents, it is clear from the narrative portion of the 14 Petition that he is claiming a violation of his due process rights by the trial court and the 15 California Court of Appeals when they reviewed the immigration documents. (ECF No. 16 1 at 36-38.) 17 The Due Process Clause guarantees criminal defendants a fair trial and a right to 18 present a defense. In re Murchison, 349 U.S. 133, 136, 75 S.Ct. 623, 99 L.Ed. 942 19 (1955) (“A fair trial in a fair tribunal is a basic requirement of due process.”); California 20 v. Trombetta, 467 U.S. 479, 485, 104 S.Ct. 2528, 81 L.Ed.2d 413 (1984) (the standard of 21 fairness couched in the Due Process Clause “require[s] that criminal defendants be 22 afforded a meaningful opportunity to present a complete defense”). To the extent the 23 failure of the trial court to disclose these documents impacted Petitioner’s right to a fair 24 trial, or to present a defense, Petitioner has stated a cognizable claim for federal habeas 25 review. As such, this Court RECOMMENDS that Respondent’s Motion to Dismiss as 26 to Petitioner’s Sixth ground be DENIED. 27 28 D. Ground Five In Ground Five, Petitioner argues that even if there is no single error that warrants 7 16cv987-BTM-BGS 1 relief, multiple errors “are to be viewed cumulatively,” and they require “reversal.” (ECF 2 No. 1 at 33.) Respondent argues that Petitioner has not sufficiently alleged that his 3 federal constitutional rights were violated by an accumulation of errors. (ECF No. 9-1 at 4 8.) 5 The Supreme Court has clearly established that the combined effect of multiple 6 trial court errors violates due process where it renders the resulting criminal trial 7 fundamentally unfair. Chambers v. Mississippi, 410 U.S. 284, 302-03, 93 S. Ct. 1038, 8 1047, 35 L. Ed. 2d 297 (1973) (combined effect of individual errors “denied [Chambers] 9 a trial in accord with traditional and fundamental standards of due process” and “deprived 10 Chambers of a fair trial”). The cumulative effect of multiple errors can violate due 11 process even where no single error rises to the level of a constitutional violation or would 12 independently warrant reversal. Id. at 290 n. 3. The Court has recommended that two 13 claims survive Respondent’s Motion to Dismiss. As a result, it does not plainly appear 14 that Petitioner is not entitled to relief based on a theory of cumulative error. Gutierrez, 15 695 F.2d at 1198. The Court RECOMMENDS that Respondent’s Motion to Dismiss as 16 to this claim be DENIED. 17 18 V. CONCLUSION This report and recommendation of the undersigned Magistrate Judge is submitted 19 to the United States District Judge assigned to this case, pursuant to the provision of 28 20 U.S.C. section 636(b)(1). For the reasons set forth above, it is RECOMMENDED that 21 Respondent’s Motion to Dismiss is GRANTED in part and DENIED in part. It is 22 RECOMMENDED that Petitioner’s grounds one through three are DISMISSED. 23 IT IS ORDERED that no later than February 17, 2017, any party to this action 24 may file written objections with the Court and serve a copy on all parties. The document 25 should be captioned “Objections to Report and Recommendation.” 26 IT IS FURTHER ORDERED that any reply to the objections shall be filed with the 27 Court and served on all parties no later than March 3, 2017. The parties are advised that 28 failure to file objections within the specified time may waive the right to raise those 8 16cv987-BTM-BGS 1 objections on appeal of the Court’s order. See Turner v. Duncan, 158 F.3d 449, 455 (9th 2 Cir. 1998). 3 4 Dated: February 3, 2017 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 9 16cv987-BTM-BGS

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