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Bermudez v. Clark

May 21, 2010

ROLANDO ESPINOZA BERMUDEZ, PETITIONER,
v.
KEN CLARK, RESPONDENT.



FINDINGS AND RECOMMENDATION REGARDING PETITION FOR WRIT OF HABEAS CORPUS

[Doc. 1]

Petitioner is a state prisoner proceeding pro se with a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254.

RELEVANT HISTORY

On October 25, 2007, in the California Superior Court, County of Tulare, Petitioner pled no contest to manslaughter and admitted the enhancements in exchange for a guarantee that his maximum sentence would be twelve years. (CCT 227; RT 1-6.)

The trial court sentenced Petitioner to the upper term of eleven years for manslaughter, imposed a one-year consecutive sentence for the use of a firearm, and struck the gang enhancement. (CT 276, 281; RT 49-51, 55.)

Petitioner filed a timely appeal to the California Court of Appeal, Fifth Appellate District. (Lodged Doc. Nos. 1-6.) On July 14, 2008, the Court of Appeal affirmed the judgment. (Lodged Doc. No. 7.)

Petitioner filed a petition for review on August 1, 2008. (Lodged Doc. No. 8.) The petition was summarily denied on September 17, 2008. (Lodged Doc. No. 9.)

Petitioner filed the instant federal petition for writ of habeas corpus on February 12, 2009. Respondent filed an answer to the petition on December 7, 2009. Petitioner did not file a traverse.

STATEMENT OF FACTS

On April 8, 2003, Jose Lemus was driving in Porterville with Manuel Martinez (Manuel), Pablo Garcia, and [Petitioner] as passengers. As they drove by Francisco Martinez (Francisco), a Norteno gang member, Francisco "mad dogged" them and gestured with his hands as if to challenge them. Lemus pulled the car over and his three passengers got out. Francisco yelled "Norte" and threw a punch at Garcia. Garcia swung back striking Francisco and knocking him to the ground where he and [Petitioner] began kicking him. Garcia and [Petitioner] finished beating Francisco and were walking back to the car when Manuel pulled out a shotgun. Manuel shot Francisco in the shoulder as Francisco stood with his hands in the air as if asking Manuel not to. Manuel shot the victim two more times knocking him to the ground and killing him.

(Lodged Doc. No. 7, at 2.)

DISCUSSION

A. Jurisdiction

Relief by way of a petition for writ of habeas corpus extends to a person in custody pursuant to the judgment of a state court if the custody is in violation of the Constitution or laws or treaties of the United States. 28 U.S.C. § 2254(a); 28 U.S.C. § 2241(c)(3); Williams v. Taylor, 529 U.S. 362, 375, 120 S.Ct. 1495, 1504, n.7 (2000). Petitioner asserts that he suffered violations of his rights as guaranteed by the U.S. Constitution. The challenged conviction arises out of the Tulare County Superior Court, which is located within the jurisdiction of this Court.

28 U.S.C. § 2254(a); 2241(d).

On April 24, 1996, Congress enacted the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"), which applies to all petitions for writ of habeas corpus filed after its enactment. Lindh v. Murphy, 521 U.S. 320, 117 S.Ct. 2059, 2063 (1997; Jeffries v. Wood, 114 F.3d 1484, 1499 (9th Cir. 1997), cert. denied, 522 U.S. 1008, 118 S.Ct. 586 (1997) (quoting Drinkard v. Johnson, 97 F.3d 751, 769 (5th Cir.1996), cert. denied, 520 U.S. 1107, 117 S.Ct. 1114 (1997), overruled on other grounds by Lindh v. Murphy, 521 U.S. 320, 117 S.Ct. 2059 (1997) (holding AEDPA only applicable to cases filed after statute's enactment). The instant petition was filed after the enactment of the AEDPA and is therefore governed by its provisions.

B. Standard of Review

Where a petitioner files his federal habeas petition after the effective date of the Anti- Terrorism and Effective Death Penalty Act ("AEDPA"), he can prevail only if he can show that the state court's adjudication of his 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 ...


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