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Nunez v. Grounds

October 5, 2010


The opinion of the court was delivered by: Dennis L. Beck United States Magistrate Judge


[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. Pursuant to 28 U.S.C. § 636(c)(1), the parties have consented to the jurisdiction of the United States Magistrate Judge. Local Rule 305(b).


Following a jury trial, Petitioner was convicted of second degree robbery in violation of California Penal Code*fn2 section 211 and the special allegation that he personally used a firearm during the commission of the robbery within the meaning of section 12022.53(b) was found true. On July 23, 2007, Petitioner was sentenced to an aggregate term of 13 years, computed as follows: the middle term of three years for the robbery conviction plus an additional ten years for the firearm enhancement.

Petitioner filed a timely notice of appeal to the California Court of Appeal, Fifth Appellate District. On January 15, 2009, the Court of Appeal affirmed the judgment.

On February 24, 2009, Petitioner filed a petition for review in the California Supreme Court. The petition was denied on April 1, 2009.

Petitioner filed the instant petition for writ of habeas corpus on March 19, 2010. Respondent filed an answer on July 19, 2010. Petitioner did not file a traverse.


On November 19, 2006, at 6:30 a.m., Maria Pacheco arrived for work at La Estrella Bakery in the City of Fresno. When she parked her car in the parking area adjacent to the bakery, she noticed a man was seated in a blue car that appeared to be a Taurus. As Ms. Pacheco walked toward the bakery, the man drove the blue car in front of her path, pulled out a gun and told her two or three times in Spanish, "'give me your fuckin' purse.'" Ms. Pacheco handed over her black purse and the robber drove away. Ms. Pacheco recalled that the man was in his early twenties, Hispanic, wore a hooded sweatshirt and a baseball hat, and had "a very penetrating gaze." At trial, she identified [Petitioner] as the robber and said she was "sure it [was] him."

Leonardo Portillo lived in an apartment complex that was only four or five blocks from the bakery. At 6:30 or 7:00 a.m. on the morning of the robbery, Mr. Portillo noticed that a blue Taurus had pulled in behind his own vehicle in an alley outside the apartment. Mr. Portillo saw a Hispanic male, approximately 25-30 years old, wearing a black jacket with a hood pulled over his head, exit the blue Taurus carrying what appeared to be a black purse. Mr. Portillo wrote down the license plate number of the vehicle and had his wife call the police to report what he had seen. However, before the police arrived, a different man and a woman walked into the alley. The woman got into the Taurus and drove away.

On November 28, 2006, Fresno Police Officer Kurt Smith pulled over a blue Taurus. The driver of the vehicle was Saul Rojas. Officer Smith ran a routine check and learned that the Taurus was a suspect vehicle in a recent robbery. Officer Smith observed that the ignition for the Taurus had been "punched out" and he found a black purse in the trunk. Ms. Pacheco was later shown the black purse, but she said it was not hers. When investigating officers had Ms. Pacheco view a photo lineup that included a picture of Saul Rojas, she was unable to identify anyone in the photographs.

On December 18, 2006, around 4:40 a.m., Officer Matt Wilkerson of the Fullerton Police Department pulled over a Plymouth Voyager van for a traffic stop. Juan Mendoza was the driver of the van; [Petitioner] as the passenger. Because the van's steering column had been tampered with, Officer Wilkerson believed that the vehicle had been stolen. A search of the vehicle revealed a Bank of America checkbook belonging to Raquel Reyes of Fresno. During a search at the police station, a Wells Fargo Bank credit card belonging to Ms. Pacheco was found in Mr. Mendoza's pocket.

On January 17, 2007, Detective David Fries of the Fresno Police Department showed Ms. Pacheco two more photo lineups, one that included a picture of Juan Mendoza and one that included a picture of [Petitioner]. Ms. Pacheco pointed to [Petitioner]'s picture and indicated that he was the person who had robbed her.

Subsequently, Detective Fries interviewed [Petitioner] about the November 19, 2006 robbery. [Petitioner] admitted he was familiar with the blue Taurus, but said it belonged to his friend Mr. Rojas's mother and he denied every driving it. When Detective Fries stated that he was sure [Petitioner] was the robber, [Petitioner] hung his head, nodded up and down and said okay. When Detective Fries told him, for the purpose of seeing his response, that the victim claimed he dragged her from the car, he immediately sat up and said that nothing like that ever happened and "[t]hat lady must be crazy."

In [Petitioner]'s defense, his wife testified that [Petitioner] has always had a goatee and a mustache. [Petitioner]'s former co-worker, Jose Cruz, testified that he had seen Rojas give [Petitioner] a ride to work while driving a blue car.

(Lodged Doc. 4 at 2-4.)


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 Fresno 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 ...

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