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Pena-Silva v. Prosper

September 2, 2008

AUGUSTINE PENA-SILVA, PETITIONER,
v.
K. PROSPER, WARDEN, ET AL., RESPONDENTS.



The opinion of the court was delivered by: Arthur L. Alarcón United States Circuit Judge

ORDER

I.

Pending before the Court are Augustine Pena-Silva's ("Petitioner") "First Amended Petition for a Writ of Habeas Corpus" brought pursuant to 28 U.S.C. § 2254(a) (doc. 23), Respondent's Answer (doc. 31), and Petitioner's reply, which he labeled "Traverse" (doc. 35). Also before the Court is Petitioner's "Ex Parte Request for Extension of Time to File Amended Petition" (doc. 36). The caption of this document is misleading; the document itself asks for "a 30 day extension of to file his traverse, which was due on March 28, 2005, until April 28, 2008 and which is filed concurrently with this request." On February 28, 2008, the Court ordered Petitioner to file a traverse within thirty-five days. Petitioner's traverse was filed on April 25, 2008. It appears that Petitioner is requesting leave to file his traverse beyond the Court's deadline. That request is granted.

However, for the reasons stated below, Petitioner's application for habeas corpus relief is denied.

II.

Petitioner was arrested after he sold methamphetamine to a confidential informant working for the Sacramento Sheriff's Office. The informant first purchased methamphetamine from Petitioner on November 15, 2001, and again on December 5, 2001. Each time he used marked money.

After the December 5th purchase, Petitioner asked the informant when he would want more methamphetamine. Petitioner stated that he could get the informant all the methamphetamine he wanted. The informant then told Petitioner that he would be taking the methamphetamine to Utah. Petitioner offered to wrap the methamphetamine up and hide it in the informant's car.

On December 11, 2001, the informant drove a rental car to Petitioner's residence in Sacramento. Petitioner told informant that he would put the methamphetamine in the car and have it ready the following morning. Petitioner's brother took the informant home. Sometime thereafter, the informant called Petitioner to request two extra pounds of methamphetamine. Petitioner told the informant that he had to find the additional methamphetamine, and that as a result, the car would not be ready until 3 p.m. on December 12, 2001.

On December 12, Petitioner's co-defendants, Pablo Aguiano Cortez, Macario Anguiano Salto, and Juan Manuel Anguiano, drove the rental car from Petitioner's residence to a home in Modesto. The car and its occupants then returned to Sacramento via Highway 99. On the way back to Sacramento, the car was stopped for a traffic violation. A search uncovered 420 grams of methamphetamine. One of the car's occupants had $100 of the marked money given to Petitioner. A cell phone in the car had received six calls from Petitioner.

Around the time the car was searched, officers arrived at Petitioner's residence with a search warrant. Petitioner was arrested. Inside, officers found methamphetamine and objects used to prepare methamphetamine for sale.

The Modesto residence Petitioner's co-defendants stopped at was also searched. That search revealed $20,900 (in cash), six pounds of methamphetamine, and three firearms.

On June 13, 2003, a jury in Sacramento County Superior Court found Petitioner guilty of selling methamphetamine, offering to sell methamphetamine, conspiring to transport methamphetamine from one county to a noncontiguous county, and possessing methamphetamine for sale. The jury also found the following facts: that Petitioner had prior convictions for manufacturing methamphetamine, that the methamphetamine he offered to sell and possessed exceeded one kilogram, that he was vicariously armed with a firearm in the commission of the conspiracy, and that he had served a prior prison term.

The trial court found additional facts in relation to the conspiracy conviction. As a result, it imposed an upper term sentence for that crime. The court noted that in selecting the upper term, it was following "Rule of Court 4.421." RT at 1884. The court indicated that the upper term was appropriate because:

The manner in which the crimes were carried out indicates some planning, sophistication, some professionalism, as evidenced by use of coded language, counter-surveillance, cell phones, and as evidenced by large scale permanent illicit drug operation, scales, packaging materials, and cutting agents found in his home.

This shows it to be an ongoing operation, involving many other participants in another county. There's no evidence this was like a one-time fluke that he was just caught in, caught up in because of a momentary lapse of judgment on his part. This defendant was a principal player, and he induced others to participate in the crime, that is, he placed the orders and got the whole operation going.

Other facts relating to the defendant in aggravation are he's on parole when he committed these crimes.

His prior convictions as an adult are numerous and of increasing seriousness.

RT 1884-85. Petitioner was sentenced to a term of imprisonment of twenty years and eight months.

Petitioner filed a direct appeal from the judgment in the California Court of Appeal for the Third District. The Court of Appeal affirmed the judgment and sentence.

Petitioner next filed a petition for review in the California Supreme Court. It was denied.

Petitioner filed a petition for writ of habeas corpus before the California Supreme Court. The petition was summarily denied on September 13, 2006. Where no state court provides a decision to support its denial of a state-filed habeas petition, a district court must conduct an independent review of the record to determine whether the ...


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