Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Official citation and/or docket number and footnotes (if any) for this case available with purchase.

Learn more about what you receive with purchase of this case.

RAMIREZ v. LAMARQUE

United States District Court, S.D. California


September 28, 2005.

CUZTODIO RAMIREZ, Petitioner,
v.
A. LAMARQUE, Warden, Respondent.

The opinion of the court was delivered by: DANA SABRAW, District Judge

ORDER: (1) ADOPTING THE FINDINGS, CONCLUSIONS AND RECOMMENDATIONS OF UNITED STATES MAGISTRATE JUDGE; AND (2) DISMISSING PETITION FOR WRIT OF HABEAS CORPUS
Petitioner Cuztodio Ramirez, a state prisoner proceeding pro se, petitions this Court for writ of habeas corpus, pursuant to 28 U.S.C. § 2254, challenging his 1995 conviction and sentence in San Diego Superior Court. The Honorable Louisa S. Porter, United States Magistrate Judge, has issued a Report and Recommendation ("R&R") pursuant to 28 U.S.C. § 635(b)(1) and Civ.L.R. HC.2, recommending that the Court grant Respondent's Motion to Dismiss the Petition for Writ of Habeas Corpus. The Court has considered all of the relevant pleadings, the applicable law and the R&R. For the following reasons, the Court ADOPTS Judge Porter's recommendation and GRANTS WITH PREJUDICE Respondent's Motion to Dismiss the Petition for Writ of Habeas Corpus. The Petition for Writ of Habeas Corpus is DENIED in its entirety. I.

FACTUAL AND PROCEDURAL BACKGROUND

  The Court incorporates by reference the factual and procedural summary as contained in the opinion of the California Court of Appeal. People v. Ramirez, No. D023310, slip op. (4th Dist., Div. 1, August 6, 1996). The factual findings of the State appellate court are entitled to a statutory presumption of correctness. See 28 U.S.C. § 2254(e)(1); Parke v. Raley, 506 U.S. 20, 25-26 (1992). Additionally, the Court adopts by reference the factual summary as contained in Judge Porter's R&R.

  A. State Court Proceedings

  On February 15, 1995, a jury found Petitioner guilty of selling a controlled substance in violation of Health & Safety Code § 11352(a) and possession of a controlled substance in violation of Health & Safety Code § 11350(a). The jury also concluded that Petitioner suffered three prison priors within the meaning of Penal Code § 667.5, and three serious or violent felony priors within the meaning of Penal Code § 667(b) — (i) ("strike priors"). The Superior Court sentenced Petitioner to a term of twenty-five years to life in prison pursuant to California's Three Strikes law.

  Petitioner then filed a direct appeal in the California Court of Appeal, asserting that the trial court erred: (1) in admitting "other crimes" evidence pursuant to Evidence Code § 1101(b); and (2) in ruling that it did not have the discretion to strike any of the serious felony prior convictions. On August 6, 1996, the California Court of Appeal affirmed Petitioner's conviction, but remanded the case for resentencing. Petitioner did not petition for review of the affirmance of the convictions. At resentencing on November 7, 1996, the trial court dismissed the possession charge and struck the prison priors. However, the court declined to dismiss the strike priors. Petitioner was resentenced to a term of twenty-five years to life in prison. Petitioner did not appeal his resentencing.

  After Petitioner was resentenced to a term of twenty-five years to life in prison, he filed numerous petitions for writ of habeas corpus in the California Superior Court, the California Court of Appeal and the California Supreme Court, challenging his 1995 conviction and sentence on various grounds. All of the Petitions were denied by the California courts. B. Federal Court Proceedings

  On July 6, 2004, Petitioner filed the current Petition for Writ of Habeas Corpus, asserting that he: (1) received ineffective assistance of trial counsel; (2) was denied confrontation and cross-examination of his accuser without waiver; (3) received ineffective assistance of appellate counsel; and (4) was denied a fundamentally fair appeal and adequate and effective appellate review related to the merits of the appeal.

  On September 27, 2004, Respondent moved to dismiss the Petition, arguing that the Petition is statutorily barred by the one year limitations period imposed by the Antiterrorism and Effective Death Penalty Act; and that if not time-barred, the Petition should be dismissed for being conclusory, procedurally defaulted, and failing to state a claim for relief. Petitioner filed an Opposition to Respondent's Motion to Dismiss on November 15, 2004.

  The Magistrate Judge issued the R&R on May 3, 2005, recommending that the Court grant Respondent's Motion to Dismiss the Petition for Writ of Habeas Corpus with prejudice on grounds that the Petition is barred by the one-year statute of limitations imposed on such petitions.*fn1 On May 31, 2005, Petitioner filed his objection to the R&R. Respondent filed a Reply to Petitioner's objections on June 10, 2005.

  II.

  REVIEW OF R&R: LEGAL STANDARD

  The duty of the district judge regarding the review of an R&R is set forth in Fed.R.Civ.P. 72(b) and 28 U.S.C. § 636(b)(1). Where objections are filed, Section 636(b)(1) directs the district judge to review de novo "those portions" of the R&R to which objections have been made. See Hunt v. Pliler, 384 F.3d 1118, 1124-25 (9th Cir. 2004). The district judge may then accept, reject, or modify, in whole or in part, the magistrate judge's findings and recommendations. 28 U.S.C. § 636(b)(1). However, as to those portions of the R&R to which no objections have been made, the district judge may assume the correctness of the magistrate judge's findings and recommendations. See U.S. v. Reyna-Tapia, 328 F.3d 1114, 1121 (9th Cir. 2003) (en banc) ("the district judge must review the magistrate judge's findings and recommendations de novo if objection is made, but not otherwise.") (emphasis in original). See also Thomas v. Arn, 474 U.S. 140, 149-52 (1985) ("It does not appear that Congress intended to require district court review of a magistrate's factual or legal conclusions, under a de novo or any other standard, when neither party objects to those findings."). A failure to object is deemed a sort of "procedural default," waiving the party's right to review by the district judge. Id. at 151.

  III.

  DISCUSSION

  As noted above, Judge Porter's R&R recommends this Court grant Respondent's Motion to Dismiss the Petition for Writ of Habeas Corpus with prejudice. The R&R concluded that Petitioner failed to satisfy his burden of proving the existence of a factual predicate under 28 U.S.C. § 2244(d)(1)(D). Petitioner objected to the R&R, arguing that he discovered the factual predicate of his claims on October 20, 2000, which was the alleged date he received the transcripts of the pleas on his prior convictions, and allegedly discovered the basis of his ineffective assistance of counsel claims. Thus, Petitioner's principal objection to the R&R is that it incorrectly assumed discovery of the factual predicate on February 28, 1998, rather than October 20, 2000. Petitioner does not object to any of the R&R's other findings or conclusions.

  The Antiterrorism and Effective Death Penalty Act ("AEDPA"), Pub.L. No. 104-132, 110 Stat. 1214, applies to all federal habeas petitions filed after April 24, 1996. See Lindh v. Murphy, 521 U.S. 320 (1997). The instant Petition was filed on July 6, 2004 and is therefore governed by the AEDPA.

  The AEDPA provides for a one-year limitations period for state prisoners to file a federal habeas petition in federal court. The section states, in pertinent part:

(d)(1) A 1-year period of limitation shall apply to an application for writ of habeas corpus by a person in custody pursuant to the judgment of a State court. The limitation period shall run from the latest of —
(A) the date on which the judgment became final by the conclusion of direct review or the expiration of the time for seeking such review; (B) the date on which the impediment to filing an application created by State action in violation of the Constitution or laws of the United States is removed, if the applicant was prevented from filing by such State action;
(C) the date on which the constitutional right asserted was initially recognized by the Supreme Court, if the right has been newly recognized by the Supreme Court and made retroactively applicable to cases on collateral review; or
(D) the date on which the factual predicate of the claim or claims presented could have been discovered through the exercise of due diligence.
28 U.S.C. § 2244(d).

  In this case, Petitioner alleges he discovered the factual predicate of his ineffective assistance of counsel claim "when he received the entire record of his 1982 priors, [on] October 20, 2000, which is the date he learned [his trial attorney] could have filed a Sumstine motion and is when the limitations started to run on this matter." (Pet. Objection to R&R, at 4.) In addition, Petitioner disagrees with the R&R's finding that he failed to offer evidence as to the degree of diligence used in attempting to obtain the appellate record or pertinent case law within the one-year statute of limitations period. (Id. at 9.) Petitioner contends he diligently pursued the 1982 records, despite being unable to afford copies. Petitioner also alleges that he attempted to gain access to the records from the courts and his attorneys, but was only able to access the records after he exhausted all avenues available to him, when his family purchased copies of the records and shipped them to him. (Id.) Finally, as an alternative argument, Petitioner contends that October 20, 2000, should be treated as the date when the statute of limitations began to run because that date is when he had the opportunity to "ascertain the full prejudicial effect of [his appellate attorney's] failure to fully and competently develop the Guerrero claim. . . ." (Id. at 17.)

  Petitioner's objections to the R&R raise the argument that he did not understand the legal significance of the facts until he was able to obtain the trial and appellate transcripts. However, as the R&R correctly notes, the factual predicate is not established when the Petitioner understands the legal significance of the facts, but merely when the Petitioner has knowledge of such facts. See Hasan v. Galaza, 254 F.3d 1150, 1154 (9th Cir. 2001) ("Time begins when a prisoner knows (or through diligence could discover) the important facts, not when the prisoner recognizes their legal significance."); see also Owens v. Boyd, 235 F.3d 356, 359 (7th Cir. 2000) (rejecting the proposition that the limitation period begins when the prisoner "actually understands" what legal theories are available).

  Based on a review of Petitioner's objections, this Court agrees with the Magistrate Judge's findings that Petitioner's arguments fail to satisfy the burden of proving the existence of a factual predicate under 28 U.S.C. § 2244(d)(1)(D). Petitioner's objections do not raise arguments that alter the dispositive factual findings in the R&R. The R&R concluded that Petitioner knew about the factual basis of his ineffective assistance of counsel claim against his trial attorney because he was present at trial and had first hand knowledge of the facts pertaining to his claim. (R&R at 7.) Therefore, obtaining the trial record was not necessary for Petitioner to discover the fact that his counsel was allegedly ineffective.

  Moreover, the R&R found that access to the appellate record was equally unnecessary for Petitioner to raise an ineffective assistance of counsel claim against his appellate attorney, as he could have obtained the factual basis for his claim by reading the appellate briefs filed on his behalf. (Id.) In essence, Petitioner became aware of the factual basis of his claims in the direct appeal process and therefore, did not need the transcripts to discover the facts to pursue his ineffective assistance of counsel claim against his appellate attorney.

  Petitioner does not raise any objections which contravene the R&R's conclusion that the facts relevant to his ineffective assistance of counsel claims against his trial and appellate attorneys were made known to him during trial and the direct appeal process. Petitioner's argument that he was not able to understand the legal significance of his claims against his attorneys until October 20, 2000, does not establish the existence of a factual predicate.*fn2 Accordingly, Petitioner's objection to the R&R is overruled, and the Court adopts the Magistrate Judge's finding that Petitioner fails to satisfy his burden of proving the existence of a factual predicate under 28 U.S.C. § 2244(d)(1)(D). IV.

  CONCLUSION AND ORDER

  For the reasons stated above, the Court ADOPTS the findings, conclusions and recommendations contained in the Magistrate Judge's R&R, GRANTS Respondent's motion to dismiss and DISMISSES this case with prejudice. The Clerk shall enter judgment accordingly.

  IT IS SO ORDERED.

20050928

© 1992-2005 VersusLaw Inc.



Buy This Entire Record For $7.95

Official citation and/or docket number and footnotes (if any) for this case available with purchase.

Learn more about what you receive with purchase of this case.