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MERCADO v. HERNANDEZ

November 17, 2005.

ARMANDO MERCADO, Plaintiff,
v.
ROBERT J. HERNANDEZ, Warden, Defendant.



The opinion of the court was delivered by: LOUISA PORTER, Magistrate Judge

REPORT AND RECOMMENDATION DENYING PETITION FOR WRIT OF HABEAS CORPUS
I. Introduction
Armando Mercado, a state prisoner proceeding pro se, has filed a Petition for Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254. He challenges his San Diego Superior Court conviction for burglary on two grounds: (1) denial of his due process right to a fair trial as a result of ineffective assistance of counsel; and (2) denial of his due process right to a fair trial when the trial court allegedly issued an improper response to the jury's request for a readback that included potentially exculpatory evidence. (Petition at 6.)

The Court has considered the Petition, Respondent's Answer, Petitioner's Traverse and all the supporting documents submitted by the parties. Based upon the documents and evidence presented in this case, and for the reasons set forth below, the Court recommends that the Petition be DENIED and the case be dismissed with prejudice.

  II. Statement of Facts

  This Court gives deference to state court findings of fact and presumes them to be correct. Petitioner may rebut the presumption of correctness, but only by clear and convincing evidence. 28 U.S.C. § 2254(e)(1); see also Parke v. Raley, 506 U.S. 20, 35-36 (1992) (holding findings of historical fact, including inferences properly drawn from such facts, are entitled to statutory presumption of correctness). In the present case, Petitioner has not attempted to rebut the factual findings made by the state court. The following facts, therefore, are taken verbatim from the California Court of Appeal's opinion in Petitioner's case.

 
One morning at about 8:00 a.m., [Petitioner] began ringing Araceli Ortiz's doorbell and knocking on her door. Ortiz looked out through the peephole in the front door. She did not recognize [Petitioner]. She also saw a bicycle leaning against a post on her front porch. The bicycle was black, with a thin frame and rounded handlebars.
[Petitioner] continued to ring the doorbell and knock on the door for several minutes. He asked if anyone was home. Ortiz was alone in the apartment except for her four-year-old son. Ortiz did not recognize [Petitioner], and his behavior scared her. She decided to lock the door and attempted to turn the lock on the door handle. However, the sound seemed to attract [Petitioner's] attention and she became concerned that he would come in. Instead of locking the door, she took the telephone and went into her bedroom. She locked the bedroom door and then tried unsuccessfully to call her husband and then the apartment complex manager.
The knocking and ringing continued. Five to ten minutes later, Ortiz heard the apartment door open and close. She went into the bathroom and called 911. She gave the operator a description of the person she had seen at her door and described the bicycle. Meanwhile, she heard someone rummaging in the kitchen. She heard someone say, "Is anybody home?" It was the same voice she had heard when [Petitioner] asked from outside whether anyone was home.
Ortiz heard the front door open and close a second time, but then saw the doorknob of her bedroom door move. Speaking more loudly, she told the 911 operator that the intruder was trying to get into her bedroom. She heard no further sounds. Less than a minute later, the police arrived.
The only items missing from the apartment were CD's and some quarters belonging to Ortiz's brother-in-law, Juan Ortiz. There was a trail of plastic shopping bags from the kitchen to Juan's bedroom.
A police officer saw [Petitioner] riding a bicycle down a small roadway within the apartment complex. Aware that the suspect had a bicycle, the officer detained [Petitioner]. Ortiz was brought to the detention site, where she identified [Petitioner] as the man who had been at her door and identified his bicycle as the one she had seen. A plastic shopping bag containing 47 CD's was found at the end of a footpath leading from Ortiz's apartment, about 150 yards from where [Petitioner] was detained. Ortiz identified the contents of the bag as the missing CD's. The quarters were not recovered.
[Petitioner] explained to the police that he had slept outside in the apartment complex the night before and had knocked on several doors that morning because he needed to use a telephone. He had kicked open the door to one apartment that appeared to be vacant but left when he saw that there was no telephone inside. He had continued to knock on doors but got no response. He denied having entered Ortiz's apartment and denied any knowledge of the CD's. He admitted that the bicycle was his. A search of his person revealed a six-inch "chisel type object" in his right front pants pocket and $96.26 in cash. The defense was mistaken identity. Ortiz had described the person at her front door as having a full beard, while [Petitioner's] booking photo showed that he had only a goatee. The parties stipulated that the clothing depicted in a photo exhibit was the same clothing [Petitioner] was wearing when he was arrested. Ortiz told police that the man she saw at her door was wearing faded red pants and a light brown, beige or khaki button-down shirt over a similar colored T-shirt with letters or a design on it. However, the booking photo showed [Petitioner] wearing a bluish-green shirt with no visible T-shirt underneath. A photo exhibit also apparently showed that he was wearing tan pants rather than the faded red pants Ortiz described.
(Lodgment No. 4 at 3-5.)

  III. State Court Proceedings

  On December 19, 2002, a jury convicted Petitioner of one count of residential burglary in violation of California Penal Code § 459.*fn1 (Lodgment No. 2 at 184.) Petitioner admitted the truth of three prior serious felony convictions that qualified as strikes within the meaning of California Penal Code §§ 667(b)-(i) and 1170.12, and was sentenced to a term of twenty-five years to life. (Lodgment No. 4 at 2.)

  Petitioner appealed to the California Court of Appeal, District Four, Division Two. (Lodgment No. 4 at 1.) In his appeal, Petitioner argued (1) he was denied his due process right to a fundamentally fair trial under the Fifth and Fourteenth Amendments because his trial counsel did not object to allegedly highly prejudicial testimony; and (2) the trial court erred by improperly responding to the jury's request for readbacks that included potentially exculpatory evidence. (Lodgment No. 3 at 8, 16.) On April 13, 2004, the Court of Appeal, in a reasoned decision, affirmed the residential burglary conviction but modified Petitioner's prison sentence to include, in addition to the sentence imposed for the present offense, consecutive five-year prison terms for each of the prior serious felony convictions found to be true pursuant to California Penal Code § 667(a)(1). (Lodgment No. 4 at 14-15.)

  Petitioner sought review of the Court of Appeal's decision on the ineffective assistance of counsel claim, but did not raise the trial court error claim in his appeal to the California Supreme Court. (Lodgment No. 5 at 3.) On July 14, 2004, the California Supreme Court denied the petition en banc without comment. (Lodgment No. 6 at 1.)

  Subsequently, on October 14, 2004, Petitioner filed a Petition for Writ of Habeas Corpus in California Superior Court in which he contended that his trial counsel's failure to object to allegedly improper testimony violated his Sixth Amendment right to effective assistance of counsel. (Lodgment No. 7, Cal. App. Dep't Super. Ct. Pet. at 3.) The Superior Court denied the petition on November 8, 2004. (Lodgment No. 7, Cal. App. Dep't Super. Ct. at 1.) On December 30, 2004, Petitioner filed a Petition for Writ of Habeas Corpus in California Court of Appeal, District Four, Division Two, alleging the same ineffective assistance of counsel claim. (Lodgment No. 7, Cal. Ct. App. Pet. at 1.) The Court of Appeal denied the petition without comment on January 5, 2005. (Lodgment No. 7, Cal. Ct. App. Order at 1.) On February 7, 2005, Petitioner filed a Petition for Writ of Habeas Corpus in California Supreme Court, in which he again argued ineffective assistance of counsel due to trial counsel's failure to object to allegedly improper testimony. (Lodgment No. 7, Cal. Pet. at 1.) That petition is currently pending.

  However, despite the pending action, Petitioner's ineffective assistance of counsel claim is considered exhausted for federal review purposes. The exhaustion doctrine requires that state prisoners provide the state courts "one full opportunity" to resolve any Constitutional claim by completing one full round of the State's established appellate review process. O'Sullivan v. Boerckel, 526 U.S. 838, 845 (1999). As a result, the standard is simply whether the state Supreme Court had a fair opportunity to consider the constitutional claim and to correct the alleged constitutional defect. Picard v. Connor, 404 U.S. 270, 276 (1971).

  In the present case, Petitioner raised this ineffective assistance of counsel claim on direct appeal to the California Supreme Court and was denied en banc. (Lodgment No. 5 at 7; Lodgment No. 6 at 1.) Thus, further state collateral review is unnecessary for exhaustion purposes, since the California Supreme Court has already had an opportunity to resolve this constitutional claim. See O'Sullivan, 526 U.S. at 844 (stating that the exhaustion doctrine does not require prisoners to file repetitive petitions); Brown v. Allen, 344 U.S. 443, 447 (1953) (holding that to exhaust a claim, a prisoner does not have "to ask the state for collateral relief, based on the same evidence and issues already decided by direct review"), partially abrogated on other grounds by 28 U.S.C. § 2254(d) and Williams v. Taylor, 529 U.S. 362 (2000); But cf. Sherwood v. Tomkins, 716 F.2d 632, 634 (9th Cir. 1983) (finding that the exhaustion doctrine was not satisfied when the prisoner had a direct appeal pending in state court). Hence, despite the pending action, Petitioner's ineffective assistance counsel claim is sufficiently exhausted for federal review purposes since it was previously raised on direct appeal to the California Supreme Court.*fn2

  IV. Federal Court Proceedings

  Petitioner filed the current Petition for Writ of Habeas Corpus on March 22, 2005, asserting two grounds for relief: (1) the allegedly inadequate performance of his trial counsel resulted in a violation of his right to due process and his Sixth Amendment right to effective assistance of counsel; and (2) denial of his due process right to a fair trial when the trial court allegedly issued an improper response to the jury's request for a readback that included potentially exculpatory evidence.*fn3 (Docket No. 1 at 6.) On June 10, 2005, ...


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