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Calderon v. Scribner

February 2, 2010


The opinion of the court was delivered by: Hon. John C. Coughenour


This matter comes before the Court on a petition for a certificate of appealability. (Dkt. No. 23). For the reasons explained below, the Court hereby DENIES the motion.


Petitioner is a state prisoner at Calipatria State Prison in California, where he is serving a sentence of life without possibility of parole, plus one year. (Pet. for Writ (Dkt. No. 1)). He was convicted by a California jury of (1) kidnaping for ransom, (2) robbery, (3) false imprisonment, and (4) assault with a firearm. (Id.). The jury found that Petitioner was armed with a handgun during the commission of all four crimes, and that the victim suffered bodily harm and was "intentionally confined in a manner which expose[d] [him] to a substantial likelihood of death." (Answer 9 (Dkt. No. 11)).

The convictions stem from the January 2003 kidnaping of Humberto Arreola, the owner of a California landscaping company. Petitioner worked for Mr. Arreola's company until December 2002, when he was fired. On January 9, 2003, at 6 a.m., Mr. Arreola parked his truck outside his place of business and began walking into work. Three males, two of whom were masked and one of whom was unmasked and armed with a handgun, stopped him before he reached the door. As the men beat him about the face and neck, Mr. Arreola managed to unmask his two masked assailants, thereby revealing Petitioner and his brother, Enedino Calderon. At some point during the attack, a gun was fired, although Mr. Arreola was not shot. (Ct. App. Op. 2--3 (Dkt. No. 12)).*fn1

The attackers subdued Mr. Arreola, and told him that nothing would happen if he were to cooperate. They tied his hands with red tape, and placed him in the trunk of a blue car. The attackers drove Mr. Arreola about twenty minutes from where the attack had taken place to an old farmhouse, where they told him they intended to ransom him for $500,000. Mr. Arreola objected that he could not access such a large quantity of money. The men took his wallet, which contained $700 in one-hundred-dollar and twenty-dollar bills, and left him alone in the farmhouse. After waiting approximately one hour for the men to return, Mr. Arreola began to work his way free. At approximately 7:40 a.m., he escaped the farmhouse and flagged down a passing automobile. The driver called 911 on his behalf, and he was taken to the hospital. (Id. 3--5). Mr. Arreola's injuries were significant: He suffered two lacerations to the back of his skull, which required a total of eight staples to close. He also suffered a broken nose, and a laceration above his right eyebrow which required eight stitches. The treating physician stated that the injuries were consistent with being pistol-whipped. (Id. 5).

The evidence against Petitioner was overwhelming. Jurors heard the testimony of Mr. Arreola himself, who testified that he was able to recognize Petitioner as one of his attackers. They also heard from Jason Dill, who worked at the business next to Mr. Arreola's landscaping company, and observed the early-morning attack. He largely corroborated Mr. Arreola's account of what had happened in the parking lot. Deputy Kenny Lee also testified. He responded to Mr. Arreola's initial 911 call, and performed the first stages of the investigation. Deputy Lee discovered an abandoned farmhouse in the vicinity where Mr. Arreola had told police they would find it. Inside the farmhouse, the deputy discovered blood on walls and red packing tape in one room. Investigators also discovered blood inside the trunk and passenger compartment of a blue automobile that a witness tied to Petitioner. Jurors also learned that Petitioner was carrying $634 in cash when he was apprehended, including three one-hundred-dollar bills and ten twenty-dollar bills. Finally, Petitioner's girlfriend testified that he had left home at 5 a.m. with his brother Enedino Calderon on the morning of the kidnaping. This too was inculpatory evidence, as Enedino Calderon's fingerprints were discovered on the red tape found at the abandoned farmhouse. (Id. 5--7).


The jury convicted Petitioner on December 16, 2003. He timely appealed the convictions to the California Court of Appeal on January 20, 2004. The state appellate court reversed the third count of false imprisonment, but affirmed the convictions for the other three counts in an unpublished opinion issued on October 27, 2005. (Ct. App. Op. (Dkt. No. 12)). Petitioner then sought relief from the Supreme Court of California, which denied his petition for review on January 18, 2006.

Petitioner filed a petition for habeas corpus relief with the United States District Court for the Eastern District of California on April 16, 2007. (Pet. (Dkt. No. 1)). This Court denied his petition for relief in June 2009 (Order (Dkt. No. 19)), and Petitioner now seeks a certificate of appealability, which would allow him to argue his case before the United States Court of Appeals for the Ninth Circuit. (Mot. (Dkt. No. 23)).


Under 28 U.S.C. § 2253(c)(1)(A), a certificate of appealability is required to appeal "the final order in a habeas proceeding in which the detention complained of arises out of process issued by a state court." See Wilson v. Belleque, 554 F.3d 816, 824 (9th Cir. 2009). A certificate may issue in such circumstances "only if the applicant has made a substantial showing of the denial of a constitutional right." 28 U.S.C. § 2253(c)(2). See also Wilson, 554 F.3d at 825--26. "Where a district court has rejected the constitutional claims on the merits, the showing required to satisfy § 2253(c) is straightforward: The petitioner must demonstrate that reasonable jurists would find the district court's assessment of the constitutional claims debatable or wrong." Slack v. McDaniel, 529 U.S. 473, 484 (2000). "A petitioner satisfies this standard by demonstrating that jurists of reason could disagree with the district court's resolution of his constitutional claims or that jurists could conclude the issues presented are adequate to deserve encouragement to proceed further." Miller-El v. Cockrell, 537 U.S. 322, 327 (2003) (citing Slack, 529 U.S. at 484). The certificate-of-appealability requirement "constitutes a gatekeeping mechanism that prevents [federal courts] from devoting judicial resources to frivolous issues while at the same time affording habeas petitioners an opportunity to persuade [courts] through briefing and argument of the potential merit of issues that may appear, at first glance, to lack merit." Lambright v. Stewart, 220 F.3d 1022, 1025 (9th Cir. 2000).


Petitioner asks this Court to certify three issues for appeal. He argues that reasonable jurists could disagree with this Court's conclusion regarding whether the trial court violated his constitutional rights by (1) forcing him to share an interpreter with another defendant during certain stretches of the trial (Mot. 4--6 (Dkt. No. 23)); (2) excluding proffered expert testimony regarding the reliability of ...

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