The opinion of the court was delivered by: BARBARA MAJOR, Magistrate Judge
REPORT AND RECOMMENDATION FOR ORDER GRANTING MOTION TO DISMISS
HABEAS PETITION WITH PREJUDICE
This Report and Recommendation is submitted to Chief United
States District Judge Irma E. Gonzalez pursuant to
28 U.S.C. § 636(b) and Local Civil Rules 72.1(d) and HC.2 of the United
States District Court for the Southern District of California.
On January 4, 2005, Jose Abarca ("Petitioner" or "Abarca"), a
state prisoner appearing pro se, filed a Petition for a Writ of
Habeas Corpus ("Petition") challenging his conviction pursuant to
28 U.S.C. § 2254. Respondent filed an Answer on February 24,
2005, and Petitioner filed a Traverse on March 11, 2005. On May
12, 2005, the Court ordered Respondent to submit a supplemental
brief and lodgments. On May 27, 2005, Respondent moved to dismiss
the Petition as unexhausted and procedurally defaulted. On June
13, 2005, Petitioner opposed Respondent's motion. For the reasons set forth below, this Court
recommends that Respondent's motion be GRANTED and the instant
FACTUAL AND PROCEDURAL BACKGROUND
On March 30, 2001, Petitioner and Rosalino Guadarrama
("Guadarrama"), both armed with handguns, held up a restaurant.
Lodgment 5 at 2. A kitchen employee, Luis Santa
("Santa");*fn1 another employee, Maria Puentes ("Puentes");
and two customers, Beatrice Sacay ("Sacay") and Jose Leon
("Leon"), were among those present. Id. When Guadarrama pointed
a gun at Puentes, she showed him that the restaurant's money was
hidden inside a coffee can and he took the money. Id.
Guadarrama also pointed the gun at Santa, who heard a click,
though the weapon did not fire. Id. Puentes escaped, and Abarca
and Guadarrama ordered everyone else into a restroom. Id. Sacay
complied, leaving behind her purse, which contained a check
belonging to Leon. Id. Guadarrama and Abarca took both the
purse and the check. Id. Police pursued and arrested Abarca and
Guadarrama as they fled in a vehicle driven by Abarca. Id. at
On November 21, 2001, the San Diego County District Attorney
filed an amended information charging Petitioner and Guadarrama
with nine crimes related to the hold up. Lodgment 1 at 1-2. On
December 12, 2001, Petitioner waived his right to a jury trial
and submitted the matter to the court on the preliminary hearing
transcripts and exhibits. Id. at 102. On December 14, 2001, the trial court found
Petitioner guilty of the lesser included offense of assault with
a firearm (Cal. Pen. Code § 245(a) (2)), reckless driving to
evade arrest (Cal. Veh. Code § 2800.2(a)), four counts of robbery
while personally armed with a firearm (Cal. Pen. Code §§ 211,
12022.53(b)), and two counts of false imprisonment (Cal. Pen.
Code §§ 236-37(a)). Lodgment 1 at 104. Petitioner and Guadarrama
were specifically convicted of robbing Santa in Count 3 and Leon
in Count 7. Id. at 3-4. The court sentenced both Petitioner and
Guadarrama to three-year prison terms for Count 3, consecutive
one-year terms for another robbery count, and two consecutive
ten-year enhancements for firearm use, for a total of twenty-four
years in prison each.*fn2 Lodgment 5 at 2.
Both Petitioner and Guadarrama appealed the consecutive
sentence enhancements. Id. Guadarrama also appealed his robbery
convictions on charged in Counts 3 and 7, claiming insufficiency
of the evidence. Id. Regarding Count 3, Guadarrama claimed that
there was no evidence that he took property from Santa because
Santa was not responsible for handling money at the restaurant.
Id. Regarding Count 7, Guadarrama argued that there was no
evidence that he took property from Leon because Leon's check was
taken from Sacay's unattended purse. Id. at 4. Petitioner did
not join Guadarrama in these insufficiency of the evidence
claims, despite their joint appeal.*fn3 Id. at 3. On May 29, 2003, the California Court of Appeal, Fourth
Appellate District, issued an opinion addressing both Petitioner
and Guadarrama's appellate claims. Id. at 1-2. The court
reduced Petitioner and Guadarrama's consecutive enhanced
sentences, modifying their sentences to a total of seventeen
years and four months each. Id. at 5. The court also affirmed
Guadarrama's convictions on robbery Counts 3 and 7. Id.
Petitioner did not seek direct review in the California Supreme
Court. Pet. Writ Habeas Corpus at 2 ("Pet."); Lodgment 8 at 5;
Lodgment 10 at 5. However, Guadarrama filed a petition for review
in the California Supreme Court on July 9, 2003. Lodgment 6 at 1.
The California Supreme Court denied Guadarrama's petition, but in
doing so it captioned the case "THE PEOPLE, Plaintiff and
Respondent, v. JOSE ABARCA et al., Defendants and Appellants."
Petitioner did not file a petition for certiorari in the United
States Supreme Court. Pet. at 3.
C. State Collateral Review
On January 14, 2004, Petitioner filed a Petition for a Writ of
Habeas Corpus in the California Court of Appeal. Lodgment 8 at 1.
In that petition, Petitioner raised the same insufficiency of the
evidence claim regarding the robbery as charged in Counts 3 and 7
that Guadarrama raised on direct review and that the California
Court of Appeal rejected. Id. at 3; Lodgment 9. The court took
judicial notice of its earlier decision on direct review and
found that Petitioner's habeas claim was identical to
Guadarrama's appellate claim. Lodgment 9. The court denied the
petition, citing In re Harris, 5 Cal. 4th 813, 829 (claims
"actually raised and rejected on appeal cannot be renewed in a
petition for a writ of habeas corpus"). Lodgment 9. On February 5, 2004, Petitioner filed a Petition for a Writ of
Habeas Corpus in the California Supreme Court. Lodgment 10 at 1.
This petition repeated the insufficiency of the evidence claim
Petitioner raised in the Court of Appeal. Compare Lodgment 8 at
3, 7-11 with Lodgment 10 at 3, 7-11. On December 1, 2004, the
California Supreme Court summarily denied the petition citing In
re Lindley, 29 Cal. 2d 709 (1947) and In re Dixon,
41 Cal. 2d 756 (1953). Lodgment 11.
Petitioner filed the instant Petition on January 4, 2005. Pet.
at 1. In this Petition, Petitioner raises the same insufficiency
of the evidence claim regarding the robbery as charged in Counts
3 and 7 that he asserted on state habeas appeal. Compare id.
at 6, 10-14 with Lodgment 8 at 3, 7-11, and Lodgment 10 at 3,
7-11. Respondent answered on February 24, 2005. Doc. No. 5 at 1
("Answer"). Petitioner filed a Traverse on March 11, 2005. Doc.
No. 9 at 1 ("Traverse"). In the Traverse, Petitioner asserts for
the first time that the lack of sufficient evidence regarding
Counts 3 and 7 resulted in a federal due process violation. Id.
Also on February 24, 2005, Respondent mistakenly lodged the
confusingly-captioned California Supreme Court decision in
Guadarrama's appeal, see "Direct Review" section supra, in
support of Respondent's conclusion that Petitioner had exhausted
his state court remedies. See Answer at 4; Lodgment 7; Pet. at
2; Lodgment 8 at 5; Lodgment 10 at 5. On May 12, 2005, this Court
found that Respondent had not
provided an adequate record to support his conclusion
that Petitioner (1) fairly presented a federal claim
to the state supreme court, (2) exhausted his claim,
and (3) raised his claim on direct appeal such that
this Court need not consider the procedural bar
imposed by the California Supreme Court on habeas
review. Doc. 11 at 7. The Court, therefore, ordered
Respondent to submit a supplemental brief and
Instead, Respondent filed the instant motion to dismiss the
Petition on May 27, 2005. Doc. No. 12 ("Mot. to Dismiss").
Respondent submits that, although Petitioner's claim of
insufficient evidence only alleges a violation of state law, when
liberally construed it raises a federal constitutional question
cognizable on federal habeas. Doc. No. 13 ("Supp. Mem.").
However, Respondent further contends that, because Petitioner has
not presented this ...