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Torres v. Prosper

December 12, 2008

EMILIO TORRES, PETITIONER,
v.
SHARON PROSPER, RESPONDENT.



FINDINGS AND RECOMMENDATIONS

I. INTRODUCTION

Petitioner is a state prisoner proceeding through counsel with an application for writ of habeas corpus pursuant to 28 U.S.C. §2254. Petitioner challenges his robbery conviction in the Sacramento County Superior Court, case 00F00392, which was entered pursuant to a negotiated plea agreement on various charges in three separate cases consolidated for sentencing. There was no direct appeal of the robbery conviction.

According to petitioner, the basis for the petition is newly discovered evidence. He has submitted declarations from the robbery victims and witnesses indicating that he was not present during the robbery. These declarations contradict previous statements made by the same individuals during the police investigation.

Based on the arguments presented and applicable law, petitioner's claims are properly identified as two separate claims relating to the voluntariness of his plea and a third claim relating to the destruction of evidence. Specifically, petitioner alleges that (1) the prosecution withheld exculpatory evidence in violation of Brady v. Maryland, causing him to enter into an involuntary plea of no contest; (2) he received ineffective assistance of counsel, causing him to enter into an involuntary plea of no contest; and (3) the destruction of physical evidence after entry of his no contest plea violated his due process rights. After careful review, the undersigned recommends the petition be denied.

II. PROCEDURAL BACKGROUND

On December 18, 2001, an amended consolidated complaint was filed in cases 00F0227 and 00F00392 in the Sacramento County Superior Court. (Supp. CT at 38-48.*fn1

Petitioner was charged with a total of 27 counts including the robbery count at issue in this petition, in addition to multiple counts of possession for sale of narcotics, unauthorized use of personal identifying information to obtain credit, acquiring access cards of four or more persons with the intent to defraud, vehicle theft, residential burglary, receiving stolen property, dissuading a witness, failure to appear, and various firearm charges. (Supp. CT at 38-48.) A preliminary hearing was held that day on all 27 counts. At the hearing, police officers testified as to the statements of the various victims and witnesses and the physical evidence. Petitioner was bound over for trial.

Subsequently, in still another case, 02F01623, a jury convicted petitioner of second degree burglary, receiving stolen property, and possession of burglar tools. (C044132 opinion at 1.*fn2

These three cases were consolidated for sentencing purposes. (RT at 39.*fn3 ) On April 1, 2003, petitioner informed the court that he intended to enter into a negotiated plea agreement with respect to seven counts in the amended consolidated complaint of cases 00F0227 and 00F00392, on the condition that the other counts, as well as charges in four other trailing cases, be dismissed. (RT at 2-4.) The plea agreement provided for a stipulated sentence of 15 years on all pending charges, including those on which petitioner had been convicted by a jury. (RT at 1-4.) On May 21, 2003, petitioner was sentenced to 5 years imprisonment for the robbery count. (RT at 50.) He received a total sentence of 15 years for all counts, in accordance with the negotiated plea agreement. (RT at 50-52.)

On April 12, 2005, petitioner brought the claims presented in this federal petition in a petition for writ of habeas corpus in the Sacramento County Superior Court. The petition was denied on June 17, 2005. (05F03343 opinion.*fn4 ) Petitioner sought relief in the Court of Appeal, Third District, and California Supreme Court; those petitions were likewise denied. (C051633 order and S144911 order.*fn5

III. FACTUAL BACKGROUND

Of the seven counts to which petitioner pleaded no contest in consolidated cases 00F00392 and 00F0227, he challenges only his conviction for robbery in this petition. The factual basis for the robbery count was set forth by the prosecutor at the preliminary hearing as follows:

On or about December 21st of the year 2000, while in the County of Sacramento, the defendant took personal property from Jonathon Tisdale, Christie Nixon, Randy Blackburn and Lisa Richards... by means of force or fear... with the intent to permanently deprive them of that property. (RT at 27.) Police officers who had investigated the robbery testified as to various statements given by the victims and witnesses, as summarized below.

Jonathan Tisdale

Officer Souza testified that Tisdale had previously provided police with information regarding petitioner's involvement in credit card fraud charges. Tisdale had shown police where petitioner lived, and a subsequent search of the residence yielded evidence regarding the credit card fraud as well firearms, drugs, and a vehicle which had been reported as stolen. (Supp. CT 325-28; 367-81.)

Officer Francois testified that Tisdale also implicated petitioner in the subsequent robbery of his residence. Specifically, Tisdale reported that petitioner and five or six other men forced their way into his home on December 21, 2000, carrying four pages of a sheriff's report which contained Tisdale's statements implicating petitioner in the credit card fraud. According to Officer Francois, petitioner told Tisdale to "fix this" (referring to the sheriff's report) and another man smashed Tisdale's head into the kitchen counter, after which the men took several items of property from the home. The pages of the sheriff's report were left at the scene. Petitioner told Tisdale he would kill him if he called the police. Officer Francois testified that Tisdale was afraid of petitioner and fearful that petitioner would retaliate if Tisdale spoke to police. (Supp. CT 431-40.)

Matthew Tisdale

Officer Souza testified that Matthew Tisdale reported that he was in the garage and did not see petitioner during the robbery but did hear petitioner's voice. (Supp. CT at 475.)

Christy Nixon

Officer Fuenzalida testified that Nixon reported she was present during the robbery and that petitioner grabbed her when she tried to go upstairs and told her ...


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