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IBARRA v. HERNANDEZ

November 10, 2005.

FRANCISCO IBARRA, Petitioner,
v.
ROBERT HERNANDEZ, Warden, Respondent.



The opinion of the court was delivered by: MARILYN HUFF, District Judge

ORDER DENYING PETITION FOR WRIT OF HABEAS CORPUS AND ADOPTING REPORT AND RECOMMENDATION GRANTING MOTION TO DISMISS
Petitioner, a state prisoner appearing pro se, filed a First Amended Petition for Writ of Habeas Corpus ("First Amended Petition") challenging his conviction pursuant to 28 U.S.C. § 2254. On March 5, 2005, Respondent moved to dismiss the First Amended Petition as procedurally defaulted. Petitioner filed an opposition on June 20, 2005. On July 28, 2005, the Magistrate Judge filed a Report and Recommendation for Order Granting Motion to Dismiss Petition for a Writ of Habeas Corpus. After careful consideration, the Court DENIES the petition for writ of habeas corpus and ADOPTS the report and recommendation granting Respondent's motion to dismiss.

Background

  On October 18, 1999, Petitioner was convicted of attempted transportation of a controlled substance while a principal was armed with a firearm. Petitioner was personally armed with a firearm, and the crime involved than four kilograms of cocaine in violation of California Health & Safety Code sections 11352(a), 11370.4(a)(2) and California Penal Code sections 12022(a)(1), (c). Petitioner was also convicted of attempted purchase or possession of a controlled substance for sale while a principal was armed with a firearm. Petitioner was personally armed with a firearm in violation of California Health & Safety Code section 11351 and California Penal Code sections 664, 12022(a)(1), 12022(c). Petitioner was convicted with armed criminal action in violation of California Penal Code section 12023, and attempted armed robbery in violation of California Penal Code sections 664, 211, 12022(a)(1). (Lodgment 1(c) at 2.)

  Petitioner was convicted of three counts of conspiracy to commit these offenses and was subject to enhanced sentencing because a principal was armed with a firearm in violation of California Penal Code sections 182, 12022(a)(1). (Id. at 1.) Furthermore, the jury found that Petitioner was substantially involved in the planning, direction, execution or financing in two of the counts of conspiracy and that the amount of cocaine exceeded four kilograms in violation of California Health & Safety Code section 11370.4(a)(2). (Id.) The trial court sentenced Petitioner to 14 years in prison. (First Am. Pet. at 1.)

  Petitioner appealed both his conviction and sentence to the California Court of Appeal. (Lodgment 1(c).) In this appeal Petitioner asserted eight claims: (1) insufficiency of the evidence, (2) improper admission of testimony in English regarding conversations held in Spanish; (3) abuse of discretion in allowing the prosecution to play a prejudicial video; (4) prosecutorial misconduct; (5) failure to properly instruct the jury on specific intent; (6) failure to issue requested jury instructions; (7) failure to properly instruct the jury about prerequisite findings regarding an accomplice; and (8) failure to strike two of three conspiracy convictions. (Id.) On November 5, 2001, the Court of Appeal struck two of the conspiracy convictions but affirmed Petitioner's other convictions. (Id. at 31.)

  In a letter dated November 8, 2001, Petitioner's appellate counsel advised Petitioner of the option of filing a petition to appeal the Court of Appeal's decision to the California Supreme Court and of the requisite filing period. (Pet'r Opp'n to Mot. to Dismiss ("Pet'r Opp'n"), Ex. B.) Petitioner asserts that he filed a petition seeking direct review in November or December of 2001.*fn1 (Id. at 2, 6.) However, the Supreme Court of California did not receive that petition. (See id., Exs. C & D.) Around August 1, 2002, Petitioner filed a petition that the California Supreme Court received on August 12, 2002. (Id., Exs. C, D.) That petition repeated only four of the claims Petitioner asserted in the Court of Appeal: (1) insufficiency of the evidence; (2) violation of due process by admitting testimony in English regarding conversations held in Spanish; (3) abuse of discretion in allowing the prosecution to play a prejudicial video; and (4) failure to properly instruct the jury on specific intent.*fn2 (Id., Ex. C at 2, 5-6, 9.) In a letter dated August 30, 2002, the clerk of the California Supreme Court rejected the August 12th petition, informing Petitioner that this petition for direct review was untimely and suggesting that Petitioner seek habeas relief. (Id., Ex. D.) Petitioner did not file a petition for certiorari in the United States Supreme Court.

  On January 16, 2003, Petitioner filed a petition for a writ of habeas corpus with the California Supreme Court. (Lodgment 2(a).) This petition revived all eight of the claims Petitioner made in the Court of Appeal including the claim concerning the two conspiracy convictions stricken by the Court of Appeal. (Id.) On September 17, 2003, the court summarily denied these claims with a citation to In re Waltreus, 62 Cal. 2d 218 (1965). (Lodgment 2(b).)

  On October 29, 2003, Petitioner initiated this action by filing a petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. Pursuant to the Court's order filed on November 6, 2003, Petitioner filed a first amended petition on September 16, 2004. The first amended petition asserts four claims: (1) insufficiency of the evidence; (2) violation of due process by admitting testimony in English regarding conversations held in Spanish; (3) abuse of discretion in allowing the prosecution to play a prejudicial video; and (4) failure to properly instruct the jury on specific intent.

  On March 5, 2005, Respondent filed a motion to dismiss the first amended petition arguing that the claims are procedurally defaulted. On June 20, 2005, Petitioner filed an opposition contending that his claims are not procedurally defaulted because he attempted to file a timely petition for direct review. The Magistrate Judge filed a report and recommendation granting Respondent's motion to dismiss the petition on July 28, 2005.

  Factual Background

  The following factual background is taken from the court of appeal opinion in People v. Ibarra, unpublished opinion (Cal.Ct.App., 4th Dist., Div. 1, Nov. 5, 2001). The Court presumes these factual determinations are correct pursuant to 28 U.S.C.A. § 2254(e)(1).

 
On January 8, 1999, about 9:00 a.m., a confidential informant was in a car repair shop north of downtown Los Angeles working on his car when Moises Mota entered the shop and asked some men in the shop where he could buy some drugs. Mota was referred to the informant who had a reputation for being a drug dealer. Mota told the informant he wanted to purchase five kilos of cocaine. The informant told Mota he knew someone who could supply the cocaine but that he would have to telephone him. The informant called Sergeant Jose Nava of the Imperial County Narcotics Task Force and told Nava that Mota and an unidentified associate wanted to purchase five kilos of cocaine for $65,000.
About 1:45 p.m., Nava spoke to Mota on the telephone. Mota told Nava he was from Seattle, had been in Los Angeles for about a week trying to buy drugs, and wanted to buy five kilos. Nava said he could deliver the five kilos to Mota the following day in Ontario, but Mota said he wanted to take delivery that day and would be willing to pick up the kilos in Indio because he had a cousin who lived there. Nava agreed.
The "cousin" was Juan Sanchez who had known Mota about four months and Ibarra about three months. Mota contacted Sanchez, first indicating that he was going to buy drugs and later indicating that he was going to steal drugs.*fn3 Mota wanted Sanchez's assistance because Sanchez was familiar with the area. Mota offered to pay Sanchez $5,000 for his assistance. Sanchez knew Mota and Ibarra were drug thieves because they told him they had stolen drugs before. Sanchez brought a gun he had bought about two weeks earlier on the streets of Los Angeles. Sanchez carried the gun because they had invited him to help steal the cocaine. The plan was to convince the drug dealer to come to Sanchez's house*fn4 where they would steal the drugs.
About 5:20 p.m. that day, Mota called Nava and told him they were stuck in traffic in Riverside. About two hours later, Mota called Nava, said that he was at his cousin's house in Thousand Palms and wanted Nava to come to that house. Nava refused to go to the house. Mota again asked Nava to come to the house because they were carrying so much money. Nava again refused. Nava's practice was not to go to a house (or even a hotel room) that he did not know because it was too dangerous. Finally, Mota agreed to meet Nava at a truck stop and Mota put Sanchez on the phone to get the directions to the truck stop.
About 8:00 p.m., Nava and his partner, German Duran, met Mota at the truck stop. Mota said that he was not ready to complete the transaction because he did not have the money and wanted to complete the deal the next day. Nava pretended to be angry about Mota wasting time and money by insisting the deal be done that night. Nava and Duran left.
About an hour later, Sanchez called Nava and asked if he and Mota had reached an agreement. Nava said no and complained about Mota wasting his time. Nava also commented that Mota had appeared nervous and scared. Sanchez said Mota was nervous because he was not familiar with the area. Sanchez told Nava that they would be willing to go to Nava's ranch to conduct the deal. Nava agreed.
The next morning about 9:00 a.m., Nava paged Mota who shortly thereafter returned his call. Nava instructed Mota to meet the informant at the truck stop and told him the informant would take Mota to Nava's ranch.
About 1:15 p.m., Mota Sanchez and Ibarra met with Nava at the parking lot of the Firehouse Café. Sanchez was driving, Mota was in the front passenger seat and Ibarra was in the right rear passenger seat. Nava asked who was in charge. Sanchez indicated Mota was in charge. Nava and Mota walked about 20 yards away from Ibarra and Sanchez. Nava asked if this was a one-time purchase or whether there would be future purchases. Mota indicated that if everything went well, he would be buying five to eight kilos of cocaine per week, but first he needed to see one kilo to check out the quality of the cocaine. Nava suggested Mota go with him to pick up the kilo but Mota refused.
Sanchez came up to Nava and Mota and said they should be going to a house whre they could conduct the transaction in private. Nava told Sanchez that he was not going to go to anybody's house for a first transaction and again asked Mota to go with him to pick up the kilo and ceck out its quality. Mota again refused, but Sanchez agreed to go with Nava. Sanchez and Nava got into Nava's car and drove about two blocks to where Duran was waiting with a kilo of cocaine taken from "the reverse sting stock." Nava instructed Duran to bring the kilo over to the Firehouse Cafe parking lot so that Sanchez could examine it. Nava and Sanchez returned to the Firehouse Café. When Duran arrived, Sanchez got into Duran's car. Duran showed the kilo to Sanchez, including cutting open the package to expose the cocaine. Sanchez looked at it and said, "Yeah, this is good stuff." Sanchez asked if he could take a sample. Duran said no (because he had orders to allow no samples) but Sanchez nevertheless took some of the cocaine out of the package and put it in his pocket. Sanchez walked over to where Nava, Mota and Ibarra were standing and told Mota it appeared to be good merchandise. Mota said they would have to get the money and would contact Nava.
About 1:15 p.m., Mota contacted Nava, said they did not want to conduct the transaction at Nava's ranch because they had seen border patrol units in the area, and again requested Nava to conduct the transaction at Sanchez's house, offering Nava an additional $300 per kilo if he so agreed. Nava told Mota the deal was off if the transaction were not conducted at his ranch. Sanchez then got on the phone, asked if Nava would be willing to do the transaction closer to their home and offered to pay more money if Nava agreed. Nava agreed, saying he would contact them and have them meet at the truck stop with the informant who would then take them to Nava's location.
About 4:00 p.m., with the assistance of the informant, Nava met with Mota, Sanchez and Ibarra at a convenience store in Coachella. Ibarra was driving, Sanchez was in the front passenger seat and Mota was in the back seat. Duran was present, as was the informant. Members of the Imperial County Narcotics Task Force were in the surrounding area.
Nava asked Mota who he should talk to. Mota indicated Nava should talk to Sanchez. Nava and Sanchez walked to the front of the vehicle. While Nava spoke with Sanchez, Duran stood outside the vehicle talking with Ibarra. Duran asked Ibarra what the weather was like in Washington (where he were supposedly from). When Ibarra said that it was pretty cold, Duran asked if it ever snowed there. Ibarra responded, "Sometimes it does." Duran then asked "if there was snow in Washington, why would they come [to Southern California] to buy snow," "snow" being a slang word for cocaine. Ibarra answered that the cocaine was cheaper in Southern California, and when Duran asked how much a kilo cost in Washington, Ibarra answered about $20,000.
Meanwhile, Nava had told Sanchez that he needed to see the money before he turned over the cocaine, and had indicated the cocaine was in a car located 400 to 500 yards away. They returned to the defendants' car, where Sanchez told Mota what Nava had said. Mota said he was not going to conduct a transaction in that parking lot since they had not seen the five kilos. Nava asked Mota if they had the money and when Mota said they did, Nava asked to see it. Mota told Sanchez (who was sitting in the front passenger seat) to show Nava the money. Sanchez picked up a black plastic bag off the floor of the vehicle and pulled out a bundle of money. Nava saw that it was a "dummy roll," with $50 bills on the top and bottom and $20 bills in the middle. Nava asked to see the rest of the money. When they responded no and said they were not going to do the transaction there, Nava gave the arrest signal because he believed it was "rip," i.e., that Mota, Sanchez and Ibarra were intending to steal the drugs and possibly harm him and Duran.
Ibarra, Sanchez and Mota were armed with loaded handguns. The money in the black pastic bag amounted to about $6,000 far less than the agreed price of $80,000 ($65,000 plus an extra $300 per kilo for driving it north to Coachella). There were five bundles of money, each with $50 bills on the outside. Four of the rolls had $1 bills in the middle.
Nava's belief that this was a rip was based on not only on the fact that they had shown him a dummy roll and refused to show him the rest of the money, but also because of Mota's nervousness and the fact that they had repeatedly tried to get him to conduct the deal at their house despite his clear refusals. If it had been a "legitimate transaction," all the money would have been there, they would have shown him the money, he would have shown them the drugs and the exchange would have been made. Nava testified the amount of cocaine involved indicated that it was being purchased for resale.
(Lodgment 1(c)).

  Discussion

  The petition presents four claims: (1) insufficiency of the evidence; (2) violation of due process by admitting testimony in English regarding conversations held in Spanish; (3) abuse of discretion in allowing the prosecution to play a prejudicial video; and (4) failure to properly instruct the jury on specific intent.

  A. Scope of Review

  28 U.S.C. § 2254(a) provides:
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 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). As amended, the AEDPA now reads:
(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 State court proceeding.
28 U.S.C.A. § 2254(d) (emphasis added).

  To obtain federal habeas relief, Petitioner must satisfy either § 2254(d)(1) or § 2254(d)(2). See Williams v. Taylor, 529 U.S. 362, 403 (2000). The threshold question is whether the rule of law was clearly established at the time petitioner's state court conviction became final. Williams v. Taylor, 520 U.S. 362, 406 (2000). Clearly established federal law, as determined by the Supreme Court of the United States "refers to the holdings, as opposed to the dicta, of this Court's decisions as of the time of the relevant state-court decision. Id. at 412; see also Lockyer v. Andrade, 538 U.S. 63, 71 (2003). However, Ninth Circuit case law may be "persuasive authority for purposes of determining whether a particular state court decision is an `unreasonable application' of Supreme Court law, and also may help us determine what law is `clearly established.'" Duhaime v. Ducharme, 200 F.3d 597, 600 (9th Cir. 2000). Only after the clearly established Federal law is identified can the court determine whether the state court's application of that law "resulted in a decision that was contrary to, or involved an unreasonable application of" that clearly established Federal law. See Lockyer, 538 U.S. at 71-72.

  A state court decision is "contrary to our clearly established precedent if the state court applies a rule that contradicts the governing law set forth in our cases" or "if the state court confronts a set of facts that are materially indistinguishable from a decision of this Court and nevertheless arrives at a result different from our precedent." Williams, 529 U.S. at 405-406. "A state-court decision involves an unreasonable application of this Court's precedent if the state court identifies the correct governing legal rule from this Court's cases but unreasonably applies it to the facts of the particular state prisoner's case" or "if the state court either unreasonably extends a legal principle from our precedent to a new context where it should not apply or unreasonably refuses to extend that principle to a new context where it should apply." Id. at 407. Under Williams, an application of federal law is unreasonable only if it is "objectively unreasonable." Id. at 409.

  Further, a state court's decision results in a "decision that was based on an unreasonable determination of the facts in light of the evidence presented in State court proceeding" if it "is so clearly incorrect that it would not be debatable among reasonable jurists." Jeffries v. Wood, 114 F.3d 1484, 1500 (9th Cir. 1997) (citations omitted).

  Where there is no reasoned decision from the state's highest court, the Court "looks through" to the underlying appellate court decision. Ylst v. Nunnemaker, 501 U.S. 797, 801-06 (1991). However, a state court need not cite Supreme Court precedent when resolving a habeas corpus claim. Early v. Packer, 537 U.S. 3, 8 (2002). "[S]o long as neither the reasoning nor the result of the state-court decision contradicts [Supreme Court precedent,]" id., the state court decision will not be "contrary to" clearly established federal law.

  B. Insufficiency of the Evidence

  A federal court in a habeas corpus proceeding has a duty to determine whether the evidence presented at trial could reasonably support the guilty verdict. Jackson v. Virginia, 443 U.S. 307, 318 (1979). This standard does not require the federal court to evaluate whether it believes the evidence shows that Petitioner was guilty beyond a reasonable doubt; rather, "the relevant question is whether, after viewing the evidence in the light most favorable to the prosecution, any rational ...


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