Guillory v. Santoro

Filing 27

ORDER Adopting Report and Recommendation [Doc. No. 19 ]; Rejecting Petitioner's Objections [Doc. No. 25 ; Denying Petition [Doc. No. 1 ]; and Denying Certificate of Appealabiltiy. Signed by Judge Cathy Ann Bencivengo on 2/25/2019.(All non-registered users served via U.S. Mail Service)(anh)

1
2
3
4
5
6
7
8

UNITED STATES DISTRICT COURT

9

SOUTHERN DISTRICT OF CALIFORNIA

10
11

JEMERE GUILLORY,

Case No.: 17cv2084-CAB-BGS
Petitioner,

12
13

v.

14

ORDER ADOPTING REPORT AND
RECOMMENDATION[Doc. No. 19];
REJECTING PETITIONER’S
OBJECTIONS [Doc. No. 25];
DENYING PETITION [Doc. No. 1];
AND DENYING CERTIFICATE OF
APPEALABILITY

KELLY SANTORO, Warden,

15

Respondent.

16
17
18

On October 5, 2017, Petitioner Jemere Guillory (“Petitioner”), a state prisoner

19

proceeding pro se and in forma pauperis, filed a Petition for Writ of Habeas Corpus

20

pursuant to 28 U.S.C. § 2254, [Doc. No. 1.] On February 12, 2018, Respondent filed an

21

answer to the petition and lodged the state court record. [Doc. Nos. 13, 14.] On March

22

22, 2018, Petitioner filed a traverse. [Doc. No. 17.]

23

On December 5, 2018, Magistrate Judge Bernard G. Skomal issued a Report and

24

Recommendation (“Report”), recommending that the Court deny the Petition. [Doc. No.

25

19.] On February 14, 2019, Petitioner filed objections to the Report. [Doc. No. 25.]

26

Following de novo review of Petitioner’s claims, the Court finds the Report to be

27

thorough, complete, and an accurate analysis of the legal issues presented in the petition.

28

For the reasons explained below, the Court: (1) adopts the Report in full; (2) rejects
1
17cv2084-CAB-BGS

1

Petitioner’s objections; (3) denies the Petition for Writ of Habeas Corpus; and (4) denies

2

a certificate of appealability.

3
4

BACKGROUND

5
6

I. Factual Background

7

The Report contains an accurate recital of the facts as determined by the California

8

Court of Appeal, and the Court fully adopts the Report’s statement of facts. As Judge

9

Skomal correctly noted, the Court presumes state court findings of fact to be correct.

10
11

II. State Procedural Background

12

The Report contains a complete and accurate summary of the state court

13

proceedings, and the Court fully adopts the Report’s statement of state procedural

14

background.

15
16

III. Federal Procedural Background

17

On October 5, 2017, Petitioner filed a Petition for Writ of Habeas Corpus

18

challenging his San Diego County Superior Court conviction. [Doc. No. 1.] On February

19

12, 2018, Respondent filed an Answer to the Petition, and lodged portions of the state

20

court record. [Doc. Nos. 13 and 14.] On March 22, 2018, Petitioner filed a Traverse.

21

[Doc. No. 17.]

22

On December 5, 2018, Magistrate Judge Bernard G. Skomal issued a Report

23

recommending that the petition be denied. [Doc. No. 19.] On February 14, 2019,

24

Petitioner filed Objections to the Report. [Doc. No. 25.] In his filing, Petitioner objects to

25

the magistrate judge’s “factual and legal conclusions” regarding claims 1 and 3. [Doc.

26

No. 25 at 1.] Petitioner also requests an evidentiary hearing. [Doc. No. 25 at 3.] Because

27

Petitioner has objected to the findings regarding two out of the three claims, the Court

28
2
17cv2084-CAB-BGS

1

reviews the Report de novo. 28 U.S.C. § 636(b)(1)(C); Holder v. Holder, 392 F.3d 1009,

2

1022 (9th Cir. 2004).

3
4

DISCUSSION

5
6

I.

7

The Report sets forth the correct standard of review for a petition for writ of habeas

Legal Standard

8

corpus. Under 28 U.S.C. § 2254(d):

9

(d) 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 merits 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.
28 U.S.C. § 2254(d); Williams v. Taylor, 529 U.S. 362, 403, 412-13 (2000).

10
11
12
13
14
15
16

Under § 2254(d)(1), a state court's decision is “contrary to” clearly established

17

federal law if the state court (1) “arrives at a conclusion opposite to that reached by this

18

Court on a question of law” or (2) “confronts facts that are materially indistinguishable

19

from a relevant Supreme Court precedent and arrives at a result opposite to ours.”

20

Williams, 529 U.S. at 405. A state court's decision is an “unreasonable application” if the

21

application was “objectively unreasonable.” Lockyer v. Andrade, 538 U.S. 63, 75-76

22

(2003).

23

Under § 2254(d)(2), habeas relief is not available due to a state court's

24

“unreasonable determination of the facts” unless the underlying factual determinations

25

were objectively unreasonable. See Miller-El v. Cockrell, 537 U.S. 322, 340 (2003); see

26

also Rice v. Collins, 546 U.S. 333, 341-42 (2006) (the fact that “[r]easonable minds

27

reviewing the record might disagree” does not render a decision objectively

28

unreasonable).
3
17cv2084-CAB-BGS

1

II. Analysis of Petitioner’s Claims.

2

Petitioner raises three claims in his Petition: (1) his Sixth Amendment right to a

3

public trial was violated when his family was allegedly excluded from the courtroom

4

during voir dire; (2) his Fourth Amendment rights were violated when the police

5

unlawfully searched his home and used the evidence during trial; and (3) there was

6

insufficient evidence of a disfiguring injury to support his mayhem conviction. [Doc. No.

7

1 at 6-8.]

8

A. Claim One: Sixth Amendment Right to Public Trial.

9

Petitioner argues he was denied his Sixth Amendment right to a public trial

10

because his family members were excluded from the courtroom during voir dire. [Doc.

11

No. 1 at 14-18.] As Magistrate Judge Skomal correctly noted, this claim is procedurally

12

barred because the state court decision on this claim relied on an independent and

13

adequate state procedural ground and Petitioner failed to show cause for the default.

14

[Doc. No. 19 at 13.] In his objections, Petitioner merely states that he “objects to the

15

court’s analysis and conclusions regarding procedural default,” but does not explain why

16

the magistrate judge’s analysis is wrong. [Doc. No. 25 at 2.] This Court has made a de

17

novo review and finds that Petitioner’s claim is procedurally barred from federal habeas

18

review.1

19

B. Claim Two: Fourth Amendment Rights.

20

In his Petition, Petitioner argued the search of his residence and trial court’s denial

21

of suppression of the evidence obtained in that search violated the Fourth Amendment.

22

[Doc. No. 1 at 19-28.] However, in his Traverse, Petitioner admitted that the claim was

23

barred by Stone v. Powell, 428 U.S. 465 (1976). As a result, Magistrate Judge Skomal

24

recommended that habeas relief be denied on this claim. Petitioner does not object to this

25
26
27
1

28

In his Traverse, Petitioner requests an evidentiary hearing with regard to claim one. [Doc. No. 17 at 2.]
However, given that the claim is procedurally barred, the request for an evidentiary hearing is DENIED.
4
17cv2084-CAB-BGS

1

finding. This Court has made a de novo review and finds that Petitioner’s claim should

2

be denied.

3

C. Insufficient evidence of Mayhem.

4

Petitioner argues the evidence was not sufficient to support his conviction for

5

mayhem as to the permanent disfigurement element because the testimony concerning the

6

victim’s ongoing problems with his leg at the time of trial should be interpreted as being

7

related to things other than being shot. [Doc. No. 1 at 25 - 28.] However, as pointed out

8

by Magistrate Judge Skomal, while there was some conflicting evidence on this issue,

9

there was sufficient evidence presented upon which the jury could have based its

10

conclusion that the victim’s injury from the gunshot persisted for almost two years.

11

[Doc. No. 19 at 19.] Thus, Petitioner has not met his burden under Jackson v. Virginia

12

because “viewing the evidence in the light most favorable to the prosecution, any rational

13

trier of fact could have found” the permanent disfigurement element “beyond a

14

reasonable doubt.” 443 U.S. 307, 319 (1979). In his objections, Petitioner merely states

15

that he “objects to the courts conclusion as to the claim,” but does not explain why the

16

magistrate judge’s analysis is wrong. [Doc. No. 25 at 3.] This Court has made a de novo

17

review and finds that Petitioner’s claim should be denied.

18
19
20

CERTIFICATE OF APPEALABILITY
A petitioner complaining of detention arising from state court proceedings must

21

obtain a certificate of appealability to file an appeal of the final order in a federal habeas

22

proceeding. 28 U.S.C. § 2253(c)(1)(A) (2007). The district court may issue a certificate

23

of appealability if the petitioner “has made a substantial showing of the denial of a

24

constitutional right.” Id. § 2253(c)(2). To make a “substantial showing,” the petitioner

25

must “demonstrat[e] that ‘reasonable jurists would find the district court's assessment of

26

the constitutional claims debatable[.]’ ” Beaty v. Stewart, 303 F.3d 975, 984 (9th

27

Cir.2002) (quoting Slack v. McDaniel, 529 U.S. 473, 484 (2000)). Petitioner has not

28
5
17cv2084-CAB-BGS

1

made a “substantial showing” as to any of the claims raised by his petition, and thus the

2

Court sua sponte denies a certificate of appealability.

3
4
5

CONCLUSION
For the reasons set forth above, the Court hereby: (1) ADOPTS the Report in full;

6

(2) REJECTS Petitioner's objections; (3) DENIES the Petition for Writ of Habeas

7

Corpus; and (4) DENIES a certificate of appealability.

8

IT IS SO ORDERED.

9
10

Dated: February 25, 2019

11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
6
17cv2084-CAB-BGS