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Rubio v. Kirkland

November 1, 2010


The opinion of the court was delivered by: Timothy J Bommer United States Magistrate Judge



Petitioner, Francisco E. Rubio, Jr., is a state prisoner proceeding pro se with a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254. Petitioner is currently serving a sentence of eighteen years to life imprisonment following his conviction for second degree murder and auto theft after he pled guilty. While Petitioner lists three claims in his habeas petition, they are all interrelated and center around one issue. Specifically, Petitioner asserts that his plea was not voluntary/intelligent. He asserts that a co-defendant's testimony at the trial of another co-defendant contradicted her earlier statements to law enforcement that Petitioner bound the victim at or near the time the victim was killed. Petitioner asserts that the co-defendant's trial testimony constituted new evidence and that the trial court erred in denying his motion to withdraw his plea. For the following reasons, it is recommended that Petitioner's habeas petition be denied.


In late March or early April 1998, defendant, Paul Smith, Lori Smith, Amy S., and Lora Sinner (victim) were living in two tents at a campsite in Shasta County. Paul and Amy were boyfriend and girlfriend, as were defendant and Lori. The two couples slept in one tent, while the victim slept in the second tent.

In the days prior to the murder, the couples discussed killing the victim because they were irritated about her perceived flirtations with defendant and Paul; they felt she knew too much about their involvement in some thefts; and they wanted her car and money. On the day of the murder, Amy started an argument with the victim and hit and kicked her. Lori joined in and slammed the victim's head against a tree and rock. At Lori's behest, Amy grabbed a large can of chili and hit the victim repeatedly on the head with it. Amy and Lori then pummeled the victim's head with a large metal rod. Lori, Amy and Paul took the victim to a nearby creek to clean her up. Then they returned to the campsite, defendant made a noose and handed it to Paul.

Paul bound the victim's hands and feet while defendant placed the noose around her neck. Paul then "hog-tied" her with the rope from her neck to her feet. The victim pleaded for her life. Paul cut the victim's wrists, poured whiskey over them, and held her hands over a campfire in order to accelerate the bleeding. Thereafter Paul and Lori continued to beat the victim, and Paul put two plastic bags over her head to suffocate her and muffle the sound of her gasping. Paul brought the victim's ordeal to an end by striking the back of her head with the metal rod.

Paul and defendant dragged the victim a short distance, dug a shallow grave, stripped and buried her, made a fire on top of the grave, and burned her belongings.

The two couples continued to live at the campsite for 10 days to two weeks. Defendant was arrested on April 10, 1998, after he was observed as a passenger in a stolen vehicle and admitted driving it. (Slip Op. at p. 1-3 (footnote omitted).)


In July 1998, defendant and the Smiths were charged by information with murder, conspiracy to commit murder, and false imprisonment by violence. The information also alleged special circumstances of lying in wait. Amy was similarly charged in juvenile court.

Defendant entered into a negotiated disposition through a written plea agreement in July 1999, by which he pleaded guilty to second degree murder and admitted a special allegation of infliction of great bodily injury, use of a deadly weapon, lying in wait, and torture. Defendant also pleaded guilty to unlawful driving or taking of a vehicle in a different case. The plea agreement was conditioned upon defendant's truthful testimony in all court matters involving the codefendnats, as well as cooperating with the prosecution and law enforcement regarding the investigation and preparation of the case. If defendant performed as promised, he would receive an indeterminate sentence of 15 years to life on the second degree murder charge with the allegation of infliction of great bodily injury, a consecutive three-year term on the auto theft charge, and the remaining special circumstances and enhancements would be dismissed. If defendant failed to cooperate, his pleas and admissions would remain in effect and the trial court would be authorized to impose full punishment therefor.

On September 30, 1999, defendant moved to withdraw his pleas and admissions on the basis that his pleas were not knowingly or intelligently entered. The court denied the motion on October 22, 1999.

(Slip Op. at p. 3-4 (internal citations omitted).) Subsequently, Petitioner filed a state habeas petition in the Shasta County Superior Court on December 6, 2001 alleging that "[u]pon entering a guilty plea, I was not fully aware of the full impact of the plea agreement. I was also not aware of the status of my co-defendants plea status." (Resp'ts' Lodged Doc. 3 at p. 4.) The Shasta County Superior Court denied the habeas petition on December 14, 2001. Petitioner then filed a state habeas petition with the California Court of Appeal, Third Appellate District raising the same claim that he did in his ...

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