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ABARCA v. RYAN

September 20, 2005.

JOSE ABARCA, Petitioner,
v.
STUART J. RYAN, Warden, Respondent.



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 Petition dismissed.

  FACTUAL AND PROCEDURAL BACKGROUND

  A. Conviction

  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 2-3.

  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.

  B. Direct Review

  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." Lodgment 7.

  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.

  D. Federal Review

  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. at 3.

  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 lodgments. Id.
  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 ...

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