The opinion of the court was delivered by: Hon. Dana M. Sabraw United States District Judge
ORDER: (1) OVERRULING PETITIONER'S OBJECTION; (2) ADOPTING THE REPORT & (3) DENYING THE PETITION FOR HABEAS CORPUS; and RECOMMENDATION; (4) DENYING A CERTIFICATE OF APPEALABILITY.
Before this Court is Ricardo Vasquez's ("Petitioner") Petition for Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254, challenging his San Diego Superior Court conviction (Case No. SCD120491). His Petition has been remanded to this Court by the United States Court of Appeals for the Ninth Circuit. [Doc. No. 39.] In his original Petition to this Court, Petitioner challenged his convictions for first degree murder, accessory to attempted murder, and second degree robbery. [Pet. 1.] This Court denied the Petition, finding the claims procedurally barred. [Doc. No. 18.] The Ninth Circuit Court of Appeals remanded the Petition for consideration of whether Petitioner's statute of limitations may be equitably tolled, possibly preventing procedural default. [Doc. No. 39.] Magistrate Judge William McCurine, Jr. has filed a Report and Recommendation ("R&R"), recommending that the Court grant equitable tolling to Petitioner.
[Doc. No. 51.] After reviewing the merits of his Petition, Magistrate Judge McCurine recommends that the Court deny the Petition for Writ of Habeas Corpus. [Id.] This Court has considered the Petition, Petitioner's Objection to the R&R, and all supporting documents submitted by the parties. Having considered these documents, this Court GRANTS equitable tolling to Petitioner. With regard to the Petition's merits, the Court DENIES Vasquez's Petition for Writ of Habeas Corpus in its entirety.
28 U.S.C. § 2254(e)(1) provides that a "determination of a factual issue made by a State court shall be presumed to be correct" in a federal habeas corpus petition. "The applicant shall have the burden of rebutting the presumption of correctness by clear and convincing evidence."
Accordingly, this Court presumes the following facts, taken from the California Court of Appeal's opinion regarding Petitioner's direct appeal, are correct. (Supp. Lodgment No. 1.)*fn1
Raul [Avitia] testified that on October 27, 1996, he lived on Franklin Street in San Diego with his father Juan, his brother, his sisters and his mother. At approximately 10:00 p.m., Raul and Juan left their home and walked to Raul's cousin's home. As Raul and Juan were returning home, walking up 30th Street, a group of men came up to them. Raul and Juan crossed the street and an individual crossed the street behind them and said in Spanish, "Hey, guy, you have $5?" The man came from a van that was facing 31st Street. The man was tall, kind of chubby "Mexican," 20 to 27 years old, had a short, flattop haircut and was wearing a brown T-shirt.
Raul told the man he did not have any money. The man took a step backwards, came back, and punched Raul on the left side of his forehead. Raul heard others running up from behind, and he and Juan ran toward a gas station. Raul could hear four or five people running behind them. Raul felt another blow on the back left side of his head, towards the top. After that, he lost consciousness. When he regained consciousness, people were hitting him. He was lying on the ground face down, with his legs in the street and his chest on the sidewalk. At that point he saw his father Juan getting hit. The same people who had been kicking him were also hitting his father, who was about five feet away. The attackers would beat Raul, then beat Juan, and then come back to Raul.
Several men were striking Raul, kicking him in the head, face, neck and torso. Raul had his hands over his head as he was being kicked. Some of the assailants were wearing boots. Raul was on the ground for about 10 minutes while he was being kicked and could not breathe. When he let out a moan, someone said, "Well, let's go," and the assailants ran towards an alley.
Raul tried to get up but kept falling backwards. After about five minutes, he got up and walked towards Logan Avenue. He did not know his whereabouts. He then remembered what had happened, and he came back and found his father lying on the ground below the sidewalk. Juan's nose looked "really wide."
Raul moved Juan to the sidewalk. He pushed his father's chest to try to get air moving. At that point his father was still breathing. Raul told a man who drove by in a truck that he and his father had been beaten up. Police officers arrived. By that time Juan was not breathing.
The police took Raul to the hospital. Raul suffered a sunken rib, a cut to the back of his head, and lumps on his head. Staples were put on the wound to his head to close it. After the attack, Raul's and Juan's wallets were missing. All Raul had in his wallet was $4.00 and a Price Club card. Raul did not know if there was any money in Juan's wallet. (Supp. Lodgment No. 1 at 5-7; footnote removed.)
Two witnesses, Myrna Zerpa and Mario Monterrosa, testified to Petitioner's involvement in the attacks on Raul and Juan. Monterrosa identified Petitioner as the individual who approached Juan and Raul asking for money, who then began beating Raul. (Id. at 7-10.) Monterrosa admitted, however, that he drank a 12-pack of beer and half of a bottle of vodka the evening of the murder and assault. (Id.) On cross-examination, he also admitted he drank tequila that evening, and that he had used crack cocaine on a daily basis for quite some time. He additionally stated that between the time of the murder and his subsequent interviews with the authorities, he had attempted to recreate his memory of events, once using PCP to do so. (Id. at
As part of his plea bargain, Gabriel Uribe, a co-defendant, testified to Petitioner's involvement in the murder and assault. (Id. at 10-14.) Uribe testified to having witnessed Petitioner and another individual discard the victims' wallets. He admitted he attended a meeting at Petitioner's house after the attacks, during which Petitioner "told everyone that they should make up a story and indicated that he had already made up a story." (Id.)
In December 1997, a jury convicted Petitioner of first degree murder, accessory to murder, and second degree robbery. (Supp. Lodgment No. 1 at 2.) Petitioner was sentenced to 25 years to life with a concurrent middle term of three years. (Id.) Petitioner filed timely appeals with the California Court of Appeal, and the court affirmed his conviction on April 30, 2001. (Supp. Lodgment No. 1.) He then appealed to the California Supreme Court, which denied review on August 8, 2001. (Supp. Lodgment No. 3.)
On July 25, 2002, Petitioner filed a petition for writ of habeas corpus with the California Superior Court, and the court denied the petition on August 15, 2002. [Doc. No. 17 at 3.] On September 3, 2002, Petitioner filed a habeas petition with the California Court of Appeal, and the court denied the petition on December 13, 2002. [Id.] On December 21, 2002, Petitioner filed a petition for review of this denial with the California Supreme Court. The court denied the petition on February 25, 2003. [Id.]
On March 9, 2003, Petitioner filed a petition for writ of habeas corpus with the California Supreme Court. [Id.] Petitioner raised eight issues: (1) the trial court erred when it instructed the jury that co-defendant Gabriel Uribe was an accomplice as a matter of law; (2) the trial court erred when it denied an evidentiary hearing on Petitioner's motion to quash the jury panel; (3) ineffective assistance of trial counsel; (4) jury instruction 2.21.2 violated his right to due process; (5) the trial court's "pinpoint instruction" about the state's key witness unconstitutionally barred the jury from considering crucial evidence; (6) ineffective assistance of appellate counsel; (7) cumulative error violated his rights to due process, trial by jury, and effective assistance of trial and appellate counsel; and (8) juror misconduct. [Id.] On October 29, 2003, the court denied the petition, citing In re Clark, 5 Cal. 4th 750 (1993) and In re Robbins, 18 Cal. 4th 770, 780 (1998). [Supp. Lodgment No. 4.]
On November 3, 2003, Petitioner filed the current Petition, raising claims identical to those raised in his March 9, 2003 petition to the California Supreme Court. (Pet. 1.) This Court denied the petition on August 17, 2004, holding that although Petitioner timely filed his Petition, he was barred from receiving federal habeas relief by state procedural rules. [Doc. No. 18.] In judging the Petition as timely, this Court relied on Dictado v. Ducharme, 244 F.3d 724 (9th Cir. 2001), finding Petitioner entitled to a statutory tolling of the one-year limitations period for the time during which his final state habeas petition was pending before the California Supreme Court. [Id. at 7.]
While Petitioner's appeal to the Ninth Circuit Court of Appeals was pending, the United States Supreme Court decided Pace v. DiGuglielmo, 544 U.S. 408 (2005), abrogating the Dictado holding by denying the application of statutory tolling during the pendency of a petition that is not properly filed. Through its citation to In re Clark and In re Robbins, the California Supreme Court denied Petitioner's final state habeas petition as untimely. See In re Clark, 855 P.2d 729 (Cal. 1993); In re Robbins, 959 P.2d 311, 317-18 (Cal. 1998). As such, Petitioner's final state habeas petition was not "properly filed" as required by 28 U.S.C. § 2244(d)(2), thereby preventing the application of statutory tolling of the limitations period during the pendency of that petition. See Pace, 544 U.S. at 413. Petitioner's federal habeas petition, therefore, was untimely. [Doc. No. 39 at 2.] The Ninth Circuit Court of Appeals remanded the case to this Court for the purpose of determining whether Petitioner is entitled to equitable tolling of the one-year statute of limitations. [Doc. No. 39.] Accordingly, this Court issued an Order for Additional Briefing and Lodgments on March 28, 2008. [Doc. No. 48.] Magistrate Judge McCurine issued an R&R on August 13, 2009. [Doc. No. 51.] Petitioner filed an Objection to the R&R on October 5, 2009. [Doc. No. 54.]
A federal court must grant a petitioner's habeas corpus petition if the prisoner "is in custody in violation of the Constitution or laws or treaties of the United States." 28 U.S.C. § 2254(a). The Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA") governs all habeas corpus petitions filed after 1996. See, e.g., Lindh v. Murphy, 521 U.S. 320, 326 (1997); Weaver v. Thompson, 197 F.3d 359, 362 (9th Cir. 1999).Under AEDPA, a petitioner's habeas corpus petition must show that the state court's decision "was contrary to, or involved an unreasonable application of, clearly established Federal Law" or that the decision "was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding." 28 U.S.C. § 2254(d).
The United States Supreme Court has determined that a state court's decision is "contrary to" its precedent "if the state court arrives at a conclusion opposite to that reached by [the United States Supreme] Court on a question of law" or "if the state courtconfronts facts that are materially indistinguishable from a relevant Supreme Court precedent" and arrives at an opposite conclusion than that of the Supreme Court.Williams v. Taylor, 529 U.S. 362, 405 (2000). A state court's decision is an "unreasonable application" of federal law if "the state court identifies the correct governing legal principle from [the United States Supreme] Court's decisions but unreasonably applies that principle to the facts of the prisoner's case." Id. at 412-13. An unreasonable application of federal law requires the state court decision to be more than incorrect or erroneous. Lockyer v. Andrade, 538 U.S. 63, 76 (2003). Instead, the state court's application must be "objectively unreasonable." Id.
If the dispositive state court does not "furnish a basis for its reasoning," however, federal habeas courts must conduct an independent review of the record to determine whether the state court unreasonably applied controlling federal law. Delgado v. Lewis, 223 F.3d 976, 982 (9th Cir. 2000). "Independent review of the record is not de novo review of the constitutional issue, but rather, the only method by which we can determine whether a silent state court decision is objectively unreasonable." Himes v. Thompson, 336 F.3d 848, 853 (9th Cir. 2003).
Reviewing Magistrate Judge's R&R
The duties of a district court in connection with a magistrate judge's R&R are set forth in Rule 72(b) of the Federal Rules of Civil Procedure and 28 U.S.C. § 636(b)(1). A district court must "make a de novo determination of those portions of the report... to which objection is made," and "may accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate judge." 28 U.S.C. § 636(b)(1); FED. R. CIV. P. 72(b)(3) (2007); see also United States v. Raddatz, 447 U.S. 667, 676 (1980) ("[I]n providing for a 'de novo' determination... Congress intended to permit whatever reliance a district judge, in exercise of sound judicial discretion, chose to place on a magistrate's proposed findings and recommendations.").
The Ninth Circuit Court of Appeals vacated and remanded the Court's order, instructing the Court to determine whether Petitioner is entitled to equitable tolling of AEDPA's one-year statute of limitations. Upon a determination of Petitioner's entitlement to equitable tolling, the Ninth Circuit instructed this Court to address whether Petitioner's habeas petition is procedurally defaulted due to failure to exhaust state remedies with respect to Claims One and Seven of his Petition. Further, the Court must determine whether this Court is precluded from reaching the merits of Petitioner's claims because ...