Arellano v. Paramo

Filing 15

REPORT AND RECOMMENDATION of United States Magistrate Judge Re: 1 Petition for Writ of Habeas Corpus, filed by Raul Arellano. Objections to R&R due by 4/11/2018. Replies due by 4/18/2018. Signed by Magistrate Judge Mitchell D. Dembin on 03/12/2018.(All non-registered users served via U.S. Mail Service)(ajs)

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UNITED STATES DISTRICT COURT

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SOUTHERN DISTRICT OF CALIFORNIA

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RAUL ARELLANO,

Case No.: 16-cv-02337-WQH-MDD
Petitioner,

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v.

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DANIEL PARAMO, Warden,
Respondent.

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REPORT AND
RECOMMENDATION OF UNITED
STATES MAGISTRATE JUDGE
RE: PETITION FOR WRIT OF
HABEAS CORPUS
[ECF No. 1]

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I.

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INTRODUCTION

This Report and Recommendation is submitted to United States

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District Judge William Q. Hayes pursuant to 28 U.S.C. § 636(b)(1) and Local

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Civil Rule 72.1(c) of the United States District Court for the Southern

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District of California.

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Raul Arellano (“Petitioner”), a state prisoner proceeding pro se and in

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forma pauperis, seeks federal habeas relief. (ECF Nos. 1, 6). After reviewing

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the Petition for Writ of Habeas Corpus (“Petition”) (ECF No. 1), Respondent’s

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Answer and Memorandum of Points and Authorities in support thereof

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(“Answer”) (ECF No. 9), Petitioner’s Traverse (ECF No. 11), supporting
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documents and pertinent state court Lodgments, the Court RECOMMENDS

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the Petition be DENIED for the reasons stated below.
II.

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FACTUAL BACKGROUND

A. State Proceedings
“[A] determination of factual issue made by a State court shall be

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presumed to be correct.” 28 U.S.C. § 2254(e)(1). The following facts, taken

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from the California Court of Appeal’s January 14, 2013, decision on direct

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review have not been rebutted with clear and convincing evidence and must

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be presumed correct. 28 U.S.C. § 2254(e)(1); Slovik v. Yates, 556 F.3d 747,749

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n.1 (9th Cir. 2009).
In 2006, the then 12-year-old victim lived with Arellano and his
wife, Maria, for a couple of months. Arellano, who was 27 or 28, would
pick the victim up from school and they would be home when Maria
returned from work. On one occasion, Maria arrived home and her
bedroom door was locked. After five or ten minutes, the door was
unlocked. Maria found Arellano and the victim inside. The victim said
she was sleeping. Arellano said he was in the shower and did not hear
Maria knock on the bedroom door. On another occasion, Maria went
into the kitchen and saw Arellano and the victim with their pants down
having sex. Maria did not mention either incident when she testified at
Arellano's preliminary hearing because she was scared her failure to
report the incident would cause her to lose custody of her children.
Some time after these incidents, Arellano apologized to Maria. He
told her he tried, but could not stop having sex with the victim. Maria
subsequently left Arellano.
In April 2008 Maria and the victim were living with the victim's
mother in San Diego. One day, when Maria was on her way home and
about two or three miles away, she saw Arellano drive by in his van.
He pulled over and she asked him why he was at her house or where he
was coming from. She could not recall his response, but when Maria
arrived home, the victim was not there and the victim's mother did not
know her whereabouts. When the victim came home a few minutes
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later, Maria asked her if she had been with Arellano. The victim
became upset and said, "Yes."
The victim's mother struck the victim. When the victim raised her
arm and attempted to strike her mother back, Maria called the police.
The victim then locked herself in the bathroom and said she was not
going to speak to anybody.
Two San Diego police officers responded to Maria's call. The
victim came out of the bathroom and talked with them. She initially
denied ever having sexual contact with Arellano, but then told them she
had had sex with Arellano at his home in El Cajon at about 4:00 p.m.
that day. She said it was not the first time. The first time was in the
bedroom of Maria and Arellano's apartment, where Maria almost
caught them. About a month later, in January 2007, the day before her
13th birthday, she and Arellano had sex again. She told one of the
officers that, from then on, they had sex once a month until about
February 2008 and about once a week after that. She told the other
officer that, until a couple weeks earlier, they had been having sex twice
a month. The sex occurred at Arellano's home in El Cajon. The victim
told the officers she was in love with Arellano. She was calm and did
not cry when she discussed their sexual relationship.
An El Cajon police officer was called to the victim's home. The
victim told the officer Arellano was Maria's estranged husband. The
victim also told the officer she had been having an ongoing sexual
relationship with Arellano and, during that period, they engaged in
consensual vaginal sex once a week at his home in El Cajon.
Early the following morning, Maria and the victim's mother took
the victim to a hospital where a child abuse pediatrician examined her
vaginal and anal areas and took swabs from her labia, vagina, and
cervix. Arellano was a contributor to DNA in sperm found on the labia
swabs. The victim told the doctor the last time she engaged in sexual
activity was around 4:30 p.m. the prior day.
Approximately a week later, the victim ran away from home.
Maria sent Arellano a text message stating she knew the victim was
with him, the police were looking for the victim, and Arellano should
bring her back home. A week and a half later, Arellano contacted Maria
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and asked her to run away with him because he would be imprisoned
for six years for his conduct with the victim, but Maria refused.
The victim returned home about five and a half months later,
after police officers arrested Arellano. The victim was with Arellano
when the officers arrested him and had been with him for much of the
time she was away from home. During her time with him, when she
was still 14 years old, they had sex many times. She continued to have
a sexual relationship with him when she turned 15.
She remained at home for about six months and ran away again
after being subpoenaed and ordered to appear in court to testify at
Arellano's first trial. [Footnote: Because of her disappearance, the trial
court declared a mistrial.] She returned home some months later, but
then ran away once more a couple of weeks afterwards.
When she returned home again, she was noticeably pregnant. She
gave birth to her child in November 2010. The day before Arellano's
second trial, she ran away with the child, who was then two months old.
Because it appeared the victim was unavailable to testify, her
preliminary hearing testimony was read to the jury. At the preliminary
hearing, the victim, then 14 years old, testified she had known Arellano
for a year and he was married to Maria. The victim denied having
sexual relations with Arellano. She only told the police officers she had
sex with Arellano because the police officers pressured her to talk to
them and she did not think she was going to get Arellano in big trouble.
She denied telling the officers she thought she was in love with
Arellano.
Just before the People planned to rest their case, the victim
appeared at trial. At that time she was 17 years old and she testified
Arellano was the father of her child. The child was conceived in Mexico,
where the victim had stayed with Arellano for six to eight months. She
initially testified she first had sex with Arellano in January 2008, a
week before she turned 14. She then quickly changed her testimony
and said she was already 14 when she first had sex with him. She had
sex with him once on the day the police officers came to her home and
once, for the first time, the week prior. Both times were at his mother's
home in Tijuana, Mexico. She said on the day Maria called the police to
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their home, she had ditched school, taken the bus and trolley to
Tijuana, had sex with Arellano at his mother's house there, then
returned to San Diego by trolley and bus around 4:00 p.m. or 5:00 p.m.
The victim admitted she told one of the San Diego police officers
the first time she had sex with Arellano was at Maria and Arellano's
apartment and the next time was the day before her 13th birthday. In
addition, she admitted she told one of the police officers she had been
having sex with Arellano twice a month until a few weeks before Maria
summoned the officers to their home. She also admitting [sic] telling
the officers that Arellano would pick her up after school and also on
Saturdays, he did not use a condom, he ejaculated on the bed or paper,
and she thought she was in love with him. She said she lied about
having sex with Arellano before she turned 14 because Maria was
"messing with" her boyfriend and she wanted Maria to think she was
"messing around" with Arellano. She further testified she was in foster
care on her 13th birthday and was not allowed to go anywhere other
than school.
The victim similarly admitted she told an El Cajon police officer
that she had been having an ongoing, consensual sexual relationship
with Arellano for about one year, she and Arellano had been meeting
once a week at Arellano's apartment in El Cajon to have sex, and they
had been having sex twice a month until a couple of weeks before April
2008. The victim further admitted lying at the preliminary hearing.
She said she did so because she did not want to get herself in trouble for
having sex with him.

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Although the victim lived with her mother and Maria for a couple
months before Arellano's second trial, she became upset with Maria
because Maria had been writing letters to Arellano. The victim testified
she loved Arellano, felt Arellano now belonged to her, and she did not
want to get him in trouble.
(ECF No. 10-10 at 2-7).

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On February 10, 2011, a San Diego Superior Court jury convicted

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Petitioner of seven counts of committing a lewd act on a child under 14 years

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old involving substantial sexual conduct (California Penal Code, §§ 288(s),

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1203.066(a)(8); counts 3-9) and one count of unlawful sexual intercourse with

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a minor more than three years younger than him (Cal. Pen. Code § 261.5(c);

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count 10). (ECF No. 10-3 at 116-120). On April 21, 2011, the Superior Court

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sentenced Petitioner to 18 years and 8 months in prison and, in addition to

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other fines and fees, imposed a $10,000 restitution fine pursuant to Cal. Pen.

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Code § 1202.4(b). (Id. at 137).

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On May 11, 2011, Petitioner filed a notice of appeal and raised the

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following grounds on appeal: (1) insufficient evidence for counts 3 through 9;

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(2) violation of right to unanimous jury for counts 3 through 9; (3) ineffective

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assistance of counsel; and (4) the trial court erred in denying his Marsden1

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motion. (ECF No. 10-10 at 2). On January 14, 2013, the California Court of

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Appeal (Fourth District, Division One) affirmed the judgment. (ECF No. 10-

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10). Petitioner filed a Petition for Review with the California Supreme Court,

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which denied review on April 17, 2013. (ECF Nos. 10-11, 10-12).
On April 22, 2014, Petitioner filed a Petition for Writ of Habeas Corpus

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with the San Diego Superior Court. (ECF Nos. 10-13, 10-14, 10-15, 10-16, 10-

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17, 10-18; Case No.: EHC 976). The habeas petition was approximately 1000

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pages long and listed ninety-eight grounds for relief. (Id.). Of these, fifty-

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four grounds were claims of ineffective assistance of counsel (“IAC”), which

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were denied for failure to submit full or partial transcripts of the preliminary

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hearing and trial proceedings, (ECF No. 10-19 at 3); sixteen grounds were

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also IAC claims but denied because they were raised and rejected on appeal,

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(Id. at 4); three grounds were found to be unintelligible, (Id. at 15); and the

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remaining grounds were denied on the merits. (ECF No. 10-19).
On October 24, 2014, Petitioner filed a Petition for Writ of Habeas

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People v. Marsden, 2 Cal. 3d 118 (1970).
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Corpus with the San Diego Superior Court claiming he was denied due

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process at a hearing for violating prison rules. (ECF Nos. 10-20, 10-21; Case

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No.: HSC 11460). The superior court denied habeas relief on November 11,

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2014. (ECF No. 10-22).
On June 12, 2015, Petitioner filed another Petition for Writ of Habeas

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Corpus, under the same court number, with the San Diego Superior Court

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claiming he was denied access to all of his legal materials. (ECF No. 10-23;

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Case No.: HSC 11460). Petitioner also requested that the court appoint an

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attorney and investigator. (Id.). On June 17, 2015, the superior court denied

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habeas relief as well as the request for a court appointed attorney and

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investigator. (ECF No. 10-24).
The San Diego Superior Court received correspondence from Petitioner

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dated July 13, 2015, requesting specific reporter’s transcripts in order to

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prosecute a habeas petition. (ECF No. 1 at 76). On July 15, 2015, Petitioner

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filed undated correspondence requesting a subpoena duces tecum for the

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victim’s school records and police officer investigatory notes. (Id. at 77). On

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September 25, 2015, the Superior Court denied the requests. (Id. at 75-79).
On February 16, 2016, the San Diego Superior Court received from

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Petitioner a Motion for Appointment of Counsel for purposes of discovery.

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(ECF Nos. 14-3, 14-4 at 2). On February 19, 2016, the Superior Court

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received a motion requesting a free copy of transcripts, arrest warrant and

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supporting affidavits, and a subpoena duces tecum. (ECF Nos. 14-1, 14-4 at

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2). The Superior Court denied both motions on April 6, 2016. (ECF No. 14-

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4).

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On May 31, 2016, Petitioner filed a Petition for Writ of Habeas Corpus

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with the California Court of Appeal (Fourth District, Division One)

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challenging the trial court’s denial of his request for a free copy of the
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transcripts. (ECF No. 10-25; Case No.: D070396). The habeas petition did

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not challenge the superior court’s denial of his request for a subpoena duces

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tecum. The Court of Appeal denied habeas relief on June 7, 2016. (ECF No.

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10-26).

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On June 12, 2016, Petitioner filed a Petition for Writ of Habeas Corpus

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with the California Court of Appeal (Fourth District, Division One) claiming

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“his counsel was ineffective for failing to advise [Petitioner] to produce

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evidence of his inability to pay the [restitution] fine.” (ECF No. 10-27, 10-28

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at 1; Case No.: D070489). The Court of Appeal denied habeas relief on June

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20, 2016. (ECF No. 10-28).

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On June 14, 2016, Petitioner filed a Petition for Review with the

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California Supreme Court challenging the trial court’s denial of his request

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for a free copy of transcripts. (ECF No. 10-29). The petition for review did

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not challenge the superior court’s denial of his request for a subpoena duces

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tecum. As part of the relief requested, however, Petitioner asked the court to

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grant a subpoena duces tecum for the victim’s school record from September

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2007 to April 5, 2008. (ECF No. 10-29 at 7). The California Supreme Court

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denied the petition without comment on August 10, 2016. (ECF No. 10-34).

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B. Federal Proceedings

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1. Case No.: 16cv2337

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On September 13, 2016, Petitioner, proceeding pro se, filed the instant

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Petition for Writ of Habeas Corpus. (ECF No. 1; Case No.: 16cv2337). On

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September 21, 2016, the Petition was dismissed without prejudice because

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Petitioner failed to satisfy the filing fee requirement. (ECF No. 3).

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On May 31, 2017, Petitioner filed a document entitled “Motion to Put

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Aside Order Dismissing Case,” in which Petitioner explained he never

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received a copy of the Court’s September 21, 2016, Order and only learned of
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the dismissal after inquiring about the status of the case on May 20, 2017.

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(ECF No. 5). Because Petitioner asked the Court to permit him to submit his

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application to proceed in forma pauperis, the Court liberally construed the

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filing as a Motion for Extension of Time and Motion to Proceed In Forma

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Pauperis. (ECF No. 6). On June 20, 2017, the Court granted both motions

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and ordered the case reopened. (ECF Nos. 6, 7). On August 23, 2017,

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Respondent filed an Answer (ECF No. 9); Memorandum of Points and

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Authorities in Support of the Answer (ECF No. 9); and State Court Record

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Lodgments # 1 – 24. (ECF No. 10).

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On September 6, 2017, Petitioner filed a Motion for Extension of Time

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to File Response. (ECF No. 12). On September 11, 2017, Petitioner filed a

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Traverse. (ECF No. 11). On September 13, 2017, this Court denied the

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Motion for Extension of Time as moot. (ECF No. 13).

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2. Case No.: 17cv354

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On February 15, 2017, unaware of the order dismissing this case,

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Petitioner filed another federal Petition for Writ of Habeas Corpus. (See Case

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No.: 17cv354 at ECF No. 1). After Respondent filed a response to the second

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petition, Petitioner filed a motion on May 16, 2017, requesting: (1) a copy of

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the second habeas corpus petition; and (2) all trial transcripts cited by

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Respondent. (See Id. at ECF No. 12). The motion was granted and Petitioner

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was sent a copy of the habeas petition and State Court Record Lodgments.

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(See Id. at ECF No. 13).

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On September 7, 2017, Petitioner filed another motion requesting, inter

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alia, (1) a copy of Exhibit D from the May 16 motion; and (2) a copy of the

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state habeas petition he filed for Case No. EHC-976 in April 2014. (See Id. at

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ECF No. 25). The motion was granted and Petitioner was sent a copy of

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Exhibit D and a copy of his state habeas petition. (See Id. at ECF No. 26).
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III. STANDARD OF REVIEW

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“The Supreme Court has recognized that ‘[f]ederal law opens two main

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avenues to relief on complaints related to imprisonment: a petition for habeas

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corpus, 28 U.S.C. § 2254, and a complaint under the Civil Rights Act of

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1871[,] 42 U.S.C. § 1983.’” Nettles v. Grounds, 830 F.3d 922, 927 (9th Cir.

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2016) (citing Muhammad v. Close, 540 U.S. 749, 750 (2004) (per curiam)).

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Title 28 U.S.C. § 2254(a) provides the scope of review for federal habeas
corpus claims:
The Supreme Court, a Justice thereof, a circuit judge, or a district court
shall entertain an application for a writ of habeas corpus in behalf of a
person in custody pursuant to a judgment of a State court only on the
ground that he is in custody in violation of the Constitution or laws or
treaties of the United States.
(emphasis added).

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Accordingly, “challenges to the validity of any confinement or to

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particulars affecting its duration are the province of habeas corpus; request

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for relief turning on circumstances of confinement may be presented in a §

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1983 action.” Nettles, 830 F.3d at 927 (internal quotations omitted) (citing

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Muhammad, 540 U.S. at 750). In other words, “if a state prisoner’s claim

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does not lie at ‘the core of habeas corpus,’ it may not be brought in habeas

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corpus but must be brought, ‘if at all,’ under § 1983[.]” Nettles, 830 F.3d at

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934 (citing Preiser v. Rodriguez, 411 U.S. 475, 487 (1973) and Skinner v.

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Switzer, 562 U.S. 521, 535 n. 13 (2011)).

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The statutory authority of federal courts to issue habeas corpus relief

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for persons in state custody is provided by 28 U.S.C. § 2254(d), as amended

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by the Anti-Terrorism and Effective Death Penalty Act of 1996 (“ADEPA”),

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which states:
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An application for a writ of habeas corpus on behalf of a person in
custody pursuant to the judgment of a State court shall not be granted
with respect to any claim that was adjudicated on the merit in State
court proceedings unless the adjudication of the claim-(1) resulted in a decision that was contrary to, or involved an
unreasonable application of, clearly established Federal law, as
determined by the Supreme Court of the United States; or
(2) resulted in a decision that was based on an unreasonable
determination of the facts in light of the evidence presented in the
State court proceeding.

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In other words, “if the state court denies the claim on the merits, the

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claim is barred in federal court unless one of the exceptions to § 2254(d) set

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out in §§ 2544(d)(1) and (2) applies.” Richter, 562 U.S. at 103. “This is a

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‘difficult to meet’ and ‘highly deferential standard for evaluating state-court

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rulings, which demands that state-court decisions be given the benefit of the

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doubt[.]’” Cullen v. Pinholster, 563 U.S. 170, 181 (2011); White v. Woodall,

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134 S.Ct. 1697, 1702 (2014) (“This standard, we recently reminded the Sixth

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Circuit, is difficult to meet.”) (internal quotations omitted). “The petitioner

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carries the burden of proof.” Pinholster, 563 U.S. at 181.

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The state court’s decision is “contrary to” clearly established federal law

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if it either “‘applies a rule that contradicts the governing law set forth in

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[Supreme Court] cases’ or ‘confronts a set of facts that are materially

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indistinguishable from a decision of [the] Court and nevertheless arrives at a

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result different from [Supreme Court] precedent.’” Holley v. Yarborough, 568

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F.3d 1091, 1098 (9th Cir. 2009) (quoting Williams v. Taylor, 529 U.S. 362,

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405-06 (O’Connor, J., concurring)).

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The state court’s decision is “an unreasonable application” of clearly

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established federal law “if ‘the state court identifies the correct governing

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legal principle’ but applies the principle unreasonably to the prisoner’s
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factual situation.” Holley, 568 F.3d at 1098 (quoting Williams, 529 U.S. at

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413).

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“The ‘unreasonable application’ clause requires the state decision to be

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more than incorrect or erroneous. The state court’s application of clearly

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established law must be objectively unreasonable.” Lockyer v. Andrade, 538

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U.S. 63, 75 (2003). Relief under § 2254(d)(1)’s “unreasonable-application

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clause” is available “if, and only if, it is so obvious that a clearly established

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rule applies to a given set of facts that there could be no ‘fairminded

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disagreement’ on the question.” Woodall, 134 S.Ct. at 1706-07 (quoting

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Richter, 562 U.S. at 103).
“‘[C]learly established Federal law’ for purposes of § 2254(d)(1) includes

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only ‘the holdings, as opposed to the dicta, of [the Supreme] Court’s

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decisions.’” Woodall, 134 S.Ct. at 1702 (quoting Howes v. Fields, 565 U.S.

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499, 505 (2012)). “In other words, ‘clearly established Federal law’ under §

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2254(d)(1) is the governing legal principle or principles set forth by the

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Supreme Court at the time the state court renders its decision.” Lockyer, 538

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U.S. at 71-72. “Circuit precedent may not serve to create established federal

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law on an issue the Supreme Court has not yet addressed.” Holley, 568 F.3d

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at 1097. As such, “[i]f there is no Supreme Court precedent that controls a

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legal issue raised by a petitioner in state court, the state court’s decision

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cannot be contrary to, or an unreasonable application of, clearly-established

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federal law.” Stevenson v. Lewis, 384 F.3d 1069, 1071 (9th Cir. 2004).

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Federal courts review the last reasoned decision from the state courts.

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See Ylst v. Nunnemaker, 501 U.S. 797, 804-06 (1991); Hibbler v. Benedetti,

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693 F.3d 1140, 1146 (9th Cir. 2012). In deciding a state prisoner’s habeas

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petition, a federal court is not called upon to decide whether it agrees with

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the state court’s determination; rather, the court applies an extraordinarily
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deferential review, inquiring only whether the state court’s decision was

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objectively unreasonable. See Yarborough v. Gentry, 540 U.S. 1, 6 (2003);

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Medina v. Hornung, 386 F.3d 872, 877 (9th Cir. 2004).
IV.

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DISCUSSION

A. Claims One, Two, and Three
In claim one, Petitioner contends he was denied his constitutional right

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of access to the courts when the state court denied Petitioner’s request for a

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second set of transcripts for free. (ECF No. 1 at 18). In claim two, Petitioner

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contends he was denied due process and the right of access to the courts

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when the state court denied his request for a copy of the voir dire transcripts.

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(Id. at 21). In claim three, Petitioner contends the state court abused its

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discretion by not granting him a free copy of the arrest warrant and

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supporting affidavits, which are necessary to prosecute a state habeas

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petition. (Id. at 22).

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1. State Court Opinion

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Petitioner raised claims one, two, and three in his habeas petition to the

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state appellate court, which denied the claims on the merits. (ECF Nos. 10-

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25, 10-26). Petitioner raised all three claims in a petition for review to the

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state supreme court, which denied the petition without comment. (ECF Nos.

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10-29, 10-34). Accordingly, this Court must “look through” to the state

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appellate court’s opinion denying the claim as the basis for authority. Ylst.

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501 U.S. at 805-06. That court wrote:

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Petitioner Raul Arellano, Jr., is currently incarcerated at R.J. Donovan
Correctional Facility following a 2011 conviction. He contends that the
reports’ transcript from his appeal was lost by prison officials. He
requested a replacement transcript from the superior court, which
denied his request. He asks this court to provide him copies of the
transcripts.

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25
26
27

Petitioner is not entitled to the relief he seeks. To the extent he is
challenging the prison officials’ actions, he has not exhausted his
administrative remedies. “As a general rule, a litigant will not be
afforded judicial relief unless he has exhausted available administrative
remedies.” (In re Dexter (1979) 25 Cal.3d 921, 925.) “The requirement
that administrative remedies be exhausted ‘applies to grievances lodged
by prisoners.’ ” (Ibid.) Generally for prisoners, “all appeals are subject
to a third level of review . . . before administrative remedies are deemed
exhausted.” (Cal. Code Regs., tit. 15, § 3084.1, subd. (b).) Arellano’s
initial request for service does not constitute exhaustion of
administrative remedies, which he must complete before seeking relief
in the courts. (See id. at § 3086, subd. (i).)
In regards to the trial court’s denial of his request for new copies,
Arellano is likewise not entitled to relief. Although an indigent
defendant has an absolute right to transcripts on direct appeal, the
defendant has no such right at the collateral relief stage. (People v.
Bizieff (1991) 226 Cal.App.3d 1689, 1701-1702.) To obtain a free copy of
the transcripts, Arellano must show a particularized need for the
transcript. (People v. Markley (2006) 138 Cal.App.4th 230, 240.)
Arellano makes no showing here and the trial court did not abuse its
discretion in denying request.
The petition is denied.
(ECF No. 10-26 at 1-2).
2. Legal Standard
A federal district court “shall entertain an application for a writ of
habeas corpus in behalf of a person in custody pursuant to the judgment of a
State court only on the ground that he is in custody in violation of the
Constitution or laws or treaties of the United States.” 28 U.S.C. § 2254(a).
Therefore, “habeas corpus is the exclusive remedy for a state prisoner
who challenges the fact or duration of his confinement and seeks immediate
or speedier release[.]” Heck v. Humphrey, 512 U.S. 477, 481 (1994) (emphasis
added). The Ninth Circuit has specifically held “a petition alleging errors in
14
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1

the state post-conviction review process is not addressable through habeas

2

corpus proceedings.” Hubbart v. Knapp, 379 F.3d 773, 779 (9th Cir. 2004)

3

(internal quotations omitted). Alleged errors in post-conviction relief

4

proceedings cannot be elevated to federal constitutional status merely by

5

using the label “due process violation.” Gerlaugh v. Stewart, 129 F.3d 1027,

6

1045 (9th Cir. 1997).

7

If the claim is a cognizable federal habeas corpus claim, then Petitioner

8

carries the burden of proving the state court adjudication of the claim either:

9

(1) is contrary to, or an unreasonable application of, clearly established

10

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

11

is an unreasonable determination of the facts. Pinholster, 563 U.S. at 181; 28

12

U.S.C. § 2254(d).

13

An indigent criminal defendant has an absolute right to trial

14

transcripts on direct appeal. Griffin v. Illinois, 351 U.S. 12 (1956). There is

15

not, however, an absolute constitutional right to a free copy of the record on

16

collateral review. United States v. MacCollom, 426 U.S. 317 (1976)

17

(interpreting 28 U.S.C. § 753(f) and applying to § 2255 habeas petition).

18
19

3. Analysis
a. Claim One: Trial Transcripts

20

Petitioner contends his right of access to the courts was violated when

21

the state court abused its discretion by denying his request for a second free

22

copy of the trial transcripts, which Petitioner claims is necessary to prosecute

23

a state habeas petition. (ECF No. 1 at 18). Petitioner argues he is an

24

indigent defendant and therefore has a right to a second free copy of the trial

25

transcripts because: (1) the prison’s officials lost the first copy; and, (2) he

26

meets the requirements to receive a free copy in collateral proceedings under

27

U.S. v. MacCollom, 426 U.S. 317 (1976). (ECF No. 1 at 18, 11 at 5).
15
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Petitioner asks for this Court to grant him a free copy of the transcripts.

2

(ECF No. 1 at 21).

3

Respondent argues this claim should be denied because it is not

4

cognizable under 28 U.S.C. § 2254. (ECF No. 9-1 at 17). Respondent also

5

argues the state court’s decision cannot be contrary to, or an unreasonable

6

application of, MacCollom because: (1) Petitioner has already received his one

7

free set of transcripts during the direct appeal; and (2) in collateral

8

proceedings, there is no constitutional right to transcripts. (Id. at 16-18).

9

Here, Petitioner does not challenge the fact or duration of his

10

confinement, or seek an immediate or speedier release. Even if this court

11

granted relief, it would not result in an immediate or speedier release. This

12

is solely a claim alleging errors in a state post-conviction review process.

13

Consequently, because he does not challenge the validity of his confinement

14

or the particulars affecting its duration, Petitioner does not state a claim for

15

relief that is cognizable on federal habeas review.

16

Even if the claim is cognizable, it still has two fatal defects. First,

17

Petitioner argues that he satisfies MacCollom’s requirements to receive a

18

second free copy of transcripts under 28 U.S.C. § 753(f). Petitioner

19

misinterprets MacCollom. Framed correctly, MacCollom states: “[28 U.S.C. §

20

753(f)] provides for a free transcript for indigent prisoners asserting a claim

21

under § 225[4] if [the trial judge or a circuit judge] certifies that the asserted

22

claim is ‘not frivolous’ and that the transcript is ‘needed to decide the issue.’”

23

MacCollom, 426 U.S. at 320-21 (quoting 28 U.S.C. § 753(f)) (emphasis added).

24

Petitioner fails to demonstrate how the state court’s denial of his request for

25

a second copy of free transcripts is: (1) contrary to MacCollom; (2) an

26

unreasonable application of MacCollom; or (3) an unreasonable

27

determination of the facts.
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1

///

2

Second, Petitioner admits he was already provided with the requested

3

transcripts and was still requesting a copy of the habeas petition submitted

4

in April 2014 (Case No.: EHC-976). (ECF No. 11 at 7). However, Petitioner

5

was provided a free copy of that habeas petition per court order. (See Case

6

No.: 17cv354 at ECF No. 26).
Accordingly, the Court RECOMMENDS claim one be DENIED.

7

b. Claim Two: Voir Dire Transcripts

8

Petitioner contends the state court abused its discretion by denying

9
10

Petitioner a free copy of the voir dire transcripts, violating his right of due

11

process and access to the court. (ECF No. 1 at 21). In support of his claim,

12

Petitioner cites: U.S. v. Odeneal, 17 F.3d 406, 420-21 (6th Cir. 2008); U.S. v.

13

McMath, 559 F.3d 657, 664 (7th Cir. 2009); Williams v. Runnels, 432 F.3d

14

1102, 1107 (9th Cir. 2006); Parker v. Allen, 565 F. 3d 1258, 1269 (11th Cir.

15

2009); and, U.S. v. MacCollom, 426 U.S. 317 (1976).
Respondent argues this claim should be denied because it is not

16
17

cognizable under 28 U.S.C. § 2254. (ECF No. 9-1 at 17). Respondent also

18

argues the state court’s decision cannot be contrary to, or an unreasonable

19

application of, MacCollom because there is no constitutional right to free

20

transcripts in collateral proceedings. (Id. at 19). Further, Respondent argues

21

Petitioner fails to show there was ever a transcript of the voir dire. (Id. at

22

18).

23

Because Petitioner challenges the state court decision denying his

24

request for voir dire transcripts, Petitioner does not challenge either the fact

25

or duration of his confinement, or seek an immediate or speedier release.

26

Accordingly, claim two is also a claim alleging errors in the state post-

27

conviction review process. Consequently, because Petitioner does not
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1

challenge the validity of his confinement or the particulars affecting its

2

duration, he does not state a claim for relief that is cognizable on federal

3

habeas review.
Even if this Court assumed claim two is cognizable, Petitioner again

4
5

fails to satisfy either § 2254(d)(1) or (2). Although Petitioner provides several

6

cases in support of his argument, only MacCollom is relevant as the other

7

cases provided are federal appellate cases and, therefore, do not satisfy the

8

“clearly established federal law” requirement of § 2254(d)(1). Petitioner also

9

fails to indicate how the state court’s denial of his request for a free

10

transcripts is: (1) contrary to MacCollom; (2) an unreasonable application of

11

MacCollom; or (3) an unreasonable determination of the facts.
Accordingly, the Court RECOMMENDS claim two be DENIED.

12

c. Claim Three: Arrest Warrant and Affidavits

13
14

Petitioner contends the state court abused its discretion by not granting

15

a free copy of the arrest warrant and supporting affidavits, in violation of the

16

Fourth Amendment. (ECF No. 1 at 22). Petitioner explains that he needs a

17

copy of these documents to properly prosecute a state habeas petition. (Id. at

18

13).

19

Respondent argues this claim is not cognizable under 28 U.S.C. § 2254.

20

(ECF No. 9-1 at 17). Respondent also argues this claim for an abuse of

21

discretion by the state courts is not a federal constitutional claim. (Id. at 19).

22

Petitioner challenges the state court order denying his request for a free

23

copy of the arrest warrant and supporting affidavits. Claim three does not

24

challenge the state trial court’s denial of habeas relief for ineffective

25

assistance of counsel. This is evidenced by Petitioner’s request for relief: “[I

26

a]m here asking [the] Court to grant me a copy of this document so I can

27

properly present my [IAC claim to] lower courts. Otherwise[,] courts will not
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1

hear my [IAC claim] due to me not having [these] documents from where I

2

base my claim[.]” (ECF No. 1 at 22).
As with claims one and two, Petitioner does not challenge the fact or

3
4

duration of his confinement, or seek an immediate or speedier release.

5

Consequently, because Petitioner does not challenge the validity of his

6

confinement or the particulars affecting its duration, Petitioner does not state

7

a claim for relief that is cognizable on federal habeas review.
Even if this Court assumed claim three is cognizable, Petitioner again

8
9

fails to satisfy either § 2254(d)(1) or (2). Petitioner, to support his argument,

10

cites Franks v. Delaware, 438 U.S. 154 (1978). (ECF No. 1 at 22). Franks,

11

however, is not applicable because it is not relevant to a court’s discretion to

12

provide free copies of an arrest warrant and supporting affidavits. Rather,

13

the only issue presented in Franks addresses a Defendant’s right to

14

“challenge the veracity of a sworn statement used by police to procure a

15

search warrant.” Franks, 438 U.S. at 155-61 (“[Petitioner’s] petition for

16

certiorari presented only the issue whether the trial court had erred in

17

refusing to consider his allegation of misrepresentation in the warrant

18

affidavit.”). Although Franks may be relevant to Petitioner’s ineffective

19

assistance of counsel claim made in his original state habeas petition, the

20

case is not relevant to show abuse of discretion in denying a free copy of an

21

arrest warrant and supporting affidavits.

22

Consequently, Petitioner fails to demonstrate how the state court’s

23

denial of his request for a free transcripts is either: (1) contrary to, or an

24

unreasonable application of, clearly established Federal law; or (2) an

25

unreasonable determination of the facts.
Accordingly, the Court RECOMMENDS claim three be DENIED.

26
27

///
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Case No.: 16-cv-02337-WQH-MDD

1

///

2

B. Claim Four: Subpoena Duces Tecum
Petitioner contends in claim four the state court abused its discretion by

3
4

not granting his request to issue a subpoena duces tecum. (ECF No. 1 at 23).

5

1. State Court Opinion

6

Petitioner filed a habeas petition with the state trial court listing

7

ninety-eight grounds for relief, including fifty-four IAC claims denied for

8

failure to submit full or partial transcripts of the preliminary hearing and

9

trial proceedings. (ECF Nos. 10-13, 10-14, 10-15, 10-16, 10-17, 10-18, 10-19

10

at 3). Relevant to claim four in the current Petition is Ground 57 which

11

alleges, inter alia, trial counsel’s failure to investigate the victim’s school

12

records. (ECF No. 10-16 at 97). Specifically, Petitioner alleges he had the

13

victim’s school record from Sept. – Dec. 2007 in his possession before the start

14

of his trial,2 which was subsequently lost by prison staff. (Id. at 101).

15

Petitioner requested the court provide him an investigator to prove the victim

16

was at school because this evidence would have contradicted the

17

“[prosecutor’s] insinuat[ion] on closing argument[] . . . And what [the

18

appellate] court used to connect me with [the victim].” (Id.).
On July 15, 2015, the state trial court received a letter from Petitioner

19
20

requesting a subpoena duces tecum for the victim’s school records and also

21

requested police investigatory notes. (ECF No. 1 at 75-79). The state trial

22
23
24
25
26
27

Although Petitioner asserts in the state habeas petition he had acquired the
school attendance record “[p]rior to trial,” (ECF No. 10-16 at 101), Petitioner
now submits to this court he acquired a copy of the school attendance record
while preparing the state habeas petition. (ECF No. 1 at 23) (“On habeas
corpus while preparing it I manage[d] to get a copy of her attendance record
of school from Sept – Dec 2007.”).
2

20
Case No.: 16-cv-02337-WQH-MDD

1

court denied the request and provided a reasoned decision on the issue. (ECF

2

No. 1 at 77-78).

3

On February 19, 2016, the state trial court received a motion from

4

Petitioner again requesting, inter alia, a subpoena duces tecum, but only for

5

the victim’s school attendance records for September through December 2007.

6

(ECF Nos. 14-1 at 4-5, 14-4). On April 6, 2016, the state trial court denied

7

the request for both the victim’s school records and police investigatory notes.

8

(ECF No. 14-4 at 3). In doing so, the trial court explicitly stated the denial

9

rested on the same reasons as the court’s September 28, 2015, order denying

10

request for free transcripts and for blank subpoenas. (Id.).

11

On May 31, 2016, Petitioner filed a habeas petition with the state

12

appellate court raising only the above discussed transcript claims. (ECF No.

13

10-25). The petition did not challenge the state trial court’s denial of his

14

request for a subpoena duces tecum. The state appellate court denied habeas

15

relief on June 7, 2016. (ECF No. 10-26).

16

On June 14, 2016, Petitioner constructively filed a petition for review in

17

the state supreme court raising only the transcript claims. (ECF No. 10-29).

18

The petition for review did not challenge the superior court’s denial of his

19

request for a subpoena duces tecum. As part of the relief requested, however,

20

Petitioner asked the court to grant a subpoena duces tecum for the victim’s

21

school record from September 2007 to April 5, 2008. (Id. at 7). The state

22

supreme court denied the petition without comment. (ECF No. 10-34).

23

2. Summary of Arguments

24

Petitioner contends the state courts abused their discretion by denying

25

his request for a subpoena duces tecum for the victim’s school attendance

26

records and police investigatory notes, in violation of the Fifth and

27

Fourteenth Amendments. (ECF No. 1 at 23). Specifically, Petitioner
21
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1

requests: “I would like [this] Court to grant me my request about state court

2

to issue a subpoena to [victim’s] school so I can get her attendance record

3

from Sept. 2007 – Dec. 2008, so I can prove my I.A.C. claim[.]” (Id.).

4

Respondent argues the claim is not cognizable under 28 U.S.C. § 2254.

5

(ECF No. 9-1 at 17). Respondent also argues there is no federal

6

constitutional violation presented in the denial by a state court to grant

7

Petitioner a subpoena duces tecum in collateral proceedings. (Id. at 20).

8

3. Legal Standard

9

Petitioners who wish to challenge a state court conviction or length of

10

confinement in state prison must first exhaust state judicial remedies. 28

11

U.S.C. § 2254(b)-(c). “[T]he petitioner must ‘seek full relief first from the

12

state courts, thus giving those courts the opportunity to review all claims of

13

constitutional error.’” Dixon v. Baker, 847 F.3d 714, 718 (9th Cir. 2017)

14

(citing Rose v. Lundy, 455 U.S. 509, 518-19 (1982)). To exhaust a claim, a

15

petitioner may either: (1) “‘fairly present[]’ his federal claim to the highest

16

state court with jurisdiction to consider it . . . or . . . demonstrate[] that no

17

state remedy remains available.” Johnson v. Zenon, 88 F.3d 828, 829 (9th

18

Cir. 1996) (citing Picard v. Connor, 404 U.S. 270, 275 (1971), and Harmon v.

19

Ryan, 959 F.2d 1457, 1460 (9th Cir. 1992)). When no state court remedies

20

are available, the exhaustion requirement is satisfied. Id.

21

Additionally, federal courts have discretion to deny a habeas application

22

on the merits notwithstanding a petitioner’s failure to exhaust state

23

remedies. 28 U.S.C. § 2254(b)(2). Even if the claim has never been presented

24

to any state court, the district court can deny habeas relief if it does not

25

present a cognizable claim. 28 U.S.C. § 2254(b)(2); Acosta-Huerta v. Estelle, 7

26

F.3d 139, 142 (9th Cir. 1992).

27

As stated previously, “habeas corpus is the exclusive remedy for a state
22
Case No.: 16-cv-02337-WQH-MDD

1

prisoner who challenges the fact or duration of his confinement and seeks

2

immediate or speedier release[.]” Heck, 512 U.S. at 481 (emphasis added). A

3

“petition alleging errors in the state post-conviction review process is not

4

addressable through habeas corpus proceedings.” Hubbart, 379 F.3d at 779

5

(internal quotations omitted).

6

Accordingly, even if the claim has not been presented to any state court,

7

habeas relief may be denied if the claim alleges errors in the state post-

8

conviction review process because such claims are not cognizable through

9

habeas proceedings.

10

4. Analysis

11

Petitioner argues his Fifth and Fourteenth Amendment rights were

12

violated when the state court abused its discretion by denying his request for

13

a subpoena duces tecum. (ECF No. 1 at 23). Petitioner raises this argument

14

for the first time here and has not presented this claim to any state court.

15

Petitioner is not challenging the state court’s denial of his state habeas claim

16

of ineffective assistance of counsel for failure to investigate the victim’s school

17

records. Rather, Petitioner is arguing the state court abused its discretion

18

when denying his July 15, 2015, and February 19, 2016, letters requesting

19

the subpoena.

20

Although the Petition does not explicitly state which state court denial

21

Petitioner challenges and does not cite the court order, it does provide: “[o]n

22

one of my [i]nitial motions I stated that I needed for Court to issue a

23

Subpoena Duces Tecum to [victim’s school.]” (ECF No. 1 at 23). However,

24

the lack of specificity as to which order is being challenged is of no

25

consequence as the order denying the second letter rested on the same

26

reasoning as the order denying the first letter. See Ylst, 501 U.S. at 805-06

27

(federal courts review the last reasoned decision from state courts).
23
Case No.: 16-cv-02337-WQH-MDD

1
2

///
Claim four does not challenge the fact or duration of Petitioner’s

3

confinement, nor seek an immediate or speedier release. As with the first

4

three claims, claim four also alleges errors in the state post-conviction review

5

process and does not challenge the validity of his confinement or the

6

particulars affecting its duration. Therefore, Petitioner does not state a claim

7

for relief that is cognizable on federal habeas review.

8
9

Accordingly, the Court RECOMMENDS claim four be DENIED.
C. Appointment of Counsel

10

In the Petition, Petitioner requests the appointment of counsel to

11

recover all of the evidence previously lost by prison staff. (ECF No. 1 at 24).

12

Respondent, however, did not address this request. (ECF No. 9-1).

13

1. Legal Standard

14

The Sixth Amendment right to counsel does not extend to federal

15

habeas corpus actions by state prisoners. See McClesky v. Zant, 499 U.S. 467,

16

495 (1991); Nevius v. Sumner, 105 F.3d 453, 460 (9th Cir. 1996) (noting that

17

there currently exists no constitutional right to appointment of counsel in

18

habeas proceedings). However, courts may appoint counsel for financially

19

eligible habeas petitioners seeking relief pursuant to 28 U.S.C. § 2254 where

20

“the interests of justice so require.” 18 U.S.C. § 3006A(a)(2)(B); Chaney v.

21

Lewis, 801 F.2d 1191, 1196 (9th Cir. 1986). Whether to appoint counsel is a

22

matter left to the court’s discretion, unless an evidentiary hearing is

23

necessary. See Knaubert v. Goldsmith, 791 F.2d 722, 728-30 (9th Cir. 1986)

24

(explaining that the interests of justice require appointment of counsel when

25

the court conducts an evidentiary hearing on the petition).

26
27

A court’s discretion to appoint counsel may be exercised only under
“exceptional circumstances.” Terrell v. Brewer, 935 F.2d 1015, 1017 (9th Cir.
24
Case No.: 16-cv-02337-WQH-MDD

1

1991). “A finding of exceptional circumstances requires an elevation of both

2

the ‘likelihood of success on the merits and the ability of the petitioner to

3

articulate his claims pro se in light of the complexity of the legal issues

4

involved.’ Neither of these issues is dispositive and both must be viewed

5

together before reaching a decision.” Id. (quoting Wilborn v. Escalderon, 789

6

F.2d 1328, 1331 (9th Cir. 1986)).

7

2. Analysis

8

As discussed above, Petitioner’s four claims are not cognizable for

9

habeas relief under 28 U.S.C. § 2254. Petitioner cannot succeed on the

10

merits of uncognizable claims. An analysis of the Petitioner’s ability to

11

articulate claims pro se is not necessary because the alleged claims are not

12

cognizable. Consequently, this Court need not exercise discretion to appoint

13

counsel because there has been no finding of exceptional circumstances.

14
15

Accordingly, the Court RECOMMENDS Petitioner’s request for
counsel be DENIED.
V.

16

REQUEST FOR CONSOLIDATION

17

In the Answer, Respondent requests the instant petition be consolidated

18

with the February 2017 habeas petition under case 17cv354-AJB-AGS. (ECF

19

No 9-1 at 16). Because this Court recommends that the instant petition be

20

denied in its entirety, this Court is not recommending consolidation.
VI.

21
22

CONCLUSION

For the foregoing reasons, IT IS HEREBY RECOMMENDED that the

23

District Judge issue an Order: (1) approving and adopting this Report and

24

Recommendation, (2) directing that Judgment be entered DENYING the

25

Petition.

26

IT IS HEREBY ORDERED that no later than April 11, 2018, any

27

party to this action may file written objections with this Court and serve a
25
Case No.: 16-cv-02337-WQH-MDD

1

copy on all parties. The document should be captioned “Objections to Report

2

and Recommendation.”

3

IT FURTHER ORDERED that any reply to the objections shall be

4

filed with the Court and served on all parties no later than April 18, 2018.

5

The parties are advised that failure to file objections within the specified time

6

may waive the right to raise those objections on appeal of the Court’s order.

7

See Turner v. Duncan, 158 F.3d 449, 455 (9th Cir. 1998).

8
9

IT IS SO ORDERED.
Dated: March 12, 2018

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