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November 29, 2010


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



Petitioner Luis Cardenas Orosco is a state prisoner proceeding pro se with a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254. For the following reasons, (1) Petitioner's request for judicial notice is granted; (2) Petitioner's remaining requests are denied; and (3) it is recommended that the habeas petition be denied.


On November 22, 2005, Petitioner was convicted of second degree murder, five counts of attempted murder, and one count of first degree burglary in Sacramento County Superior Court. See Clerk's Tr. vol. 4, 991-96; see also Lodged Doc. 4, at 1. "The jury also found true allegations that [Petitioner] used a dangerous and deadly weapon in the commission of the murder and attempted murders (§ 12022, subd. (b)(1)) and personally inflicted great bodily injury in the commission of the attempted murders (§ 12022.7, subd. (a))." Lodged Doc. 4, at 1. Petitioner was sentenced to forty-three years to life in prison. Id.; see Clerk's Tr. vol. 4, 997-1000.

Petitioner directly appealed to the California Court of Appeal, Third Appellate District. See Lodged Doc. 1. On June 22, 2007, the Court of Appeal issued a reasoned decision affirming the conviction. See Lodged Doc. 4.

Petitioner filed a petition for review in the California Supreme Court. See Lodged Doc. 5. On August 29, 2007, the California Supreme Court denied the petition without comment or citation. See Lodged Doc. 6.

On December 3, 2008, Petitioner filed the instant federal habeas petition in the United States District Court for Central District of California. See Pet'r's Pet., ECF Doc. 1. On December 16, 2008, the district court transferred the matter to the United States District Court for the Eastern District of California. See Order, Dec. 16, 2008, ECF No. 3. On October 2, 2009, Respondent filed an answer, to which Petitioner filed a traverse on December 15, 2009.


The facts of the underlying offenses are immaterial to our determination of this appeal. The facts surrounding [Petitioner's] statement to law enforcement, however, are material and are given below.

On August 7, 2004, [Petitioner] was taken into custody near the scene of the crimes and transported to the Sacramento County Sheriff's Department for questioning. [Petitioner] was questioned by Detective Dan Cabral, who speaks both English and Spanish. Cabral was asked to interview [Petitioner] by Sergeant Craig Hill, who "had some difficulty understanding [Petitioner] and wanted to make sure . . . that somebody was available to [Petitioner] if, in fact, [Petitioner] wanted to speak in Spanish."

Before questioning [Petitioner] about the crimes, Cabral conversed with [Petitioner] in English. He asked [Petitioner] if he wanted some water, and [Petitioner] said, "Please, water." When Cabral noted that [Petitioner] had already been given some water, [Petitioner] stated, "No. I need more, man." Cabral told [Petitioner] that he would get [Petitioner] a new cup, and [Petitioner] said, "Thanks, man." Cabral asked [Petitioner] if [Petitioner] understood "English pretty good," and [Petitioner] said, "Yeah." Cabral told [Petitioner] that "[i]f there's something you don't understand, let me know so I -- we can make it clear so you understand me," and [Petitioner] responded, "Okay." Cabral then explained, "I do speak Spanish. However, I understand better than I can speak it." [Petitioner] responded, "I understand, man." [Petitioner] then asked Cabral, "You the lawyer? Something?" Cabral said, "No," and explained he was a detective. Cabral then asked [Petitioner] whether he understood that he was under arrest, and [Petitioner] responded, "Uh-huh."

After this initial colloquy, Cabral advised [Petitioner] of his Miranda*fn2 rights by reading from a standard form in English. When Cabral finished, he asked [Petitioner]: "Do you understand each of these rights that I have explained to you?" According to the transcript of the interview, there was "[n]o [a]udible [r]esponse." Cabral then asked [Petitioner], "Yes or no," and [Petitioner] responded, "Yes." Cabral then asked [Petitioner]: "Having these rights in mind, do you wish to talk to me?" Again, the transcript reads, "[n]o [a]udible [r]esponse." Cabral then asked, "That's yes or no," and [Petitioner] replied, "Yeah. Yes."

Shortly thereafter, [Petitioner] and Cabral began conversing primarily in Spanish. During the interview, [Petitioner] made inculpatory statements admitting he had assaulted each of the victims. [Petitioner] moved to suppress his statement to Cabral on the ground it was obtained involuntarily and in violation of his Miranda rights. He claimed he "could not have knowingly and intelligently waived his right to remain silent because he was not advised of his Miranda rights in his native language; he did not sign a written Miranda waiver; and he did not appear to understand his Miranda rights."

The trial court held an evidentiary hearing on [Petitioner's] suppression motion. Detective Cabral testified that [Petitioner] "[d]efinitely" appeared to understand him when he "communicated to [Petitioner] in English," including when he read [Petitioner] his Miranda rights. Cabral explained that had [Petitioner] appeared not to have understood his rights, Cabral would have read him his rights in Spanish.

Three Sacramento County Sheriff's deputies, each of whom had prior contact with [Petitioner], also testified. Deputy Daniel Davis, who did not speak Spanish, testified that in 1999 he responded to a "suspicious circumstances call" and encountered [Petitioner]. Davis asked [Petitioner] in English what he was doing there, and [Petitioner] explained in English that his car had broken down and he was fixing it. [Petitioner] later admitted that he was changing his transmission fluid and allowing it to run into the storm drain. Davis read [Petitioner] his Miranda rights in English, and [Petitioner] indicated he understood those rights and agreed to waive them. According to Davis, [Petitioner] had a "thick accent" and "[h]is speech was very deliberate"; however, [Petitioner] "didn't have any problem communicating with [Davis] whatsoever."

Deputy Jeffrey Farley, who also did not speak Spanish, testified that in 2002 he detained [Petitioner] on suspicion of attempting to pass a forged check. Farley advised [Petitioner] of his Miranda rights in English, and thereafter, [Petitioner] agreed to speak to him. [Petitioner] explained in English that he received two checks from a third party and was to cash them, give the proceeds from one of the checks to the third party, and keep the proceeds from the other check for himself. [Petitioner] provided a physical description of the third party and gave Farley a couple of places to look for her. At the jail, [Petitioner] was given a "Miranda sheet" written in English. When [Petitioner] explained that he could not read English, Farley turned the sheet over so that [Petitioner] could read it in Spanish.

Deputy Earl Helfrich, who spoke both English and Spanish, testified that in 2003 he responded to a report of an intoxicated man and encountered [Petitioner]. Helfrich advised [Petitioner] of his Miranda rights in Spanish, and [Petitioner] indicated he understood his rights and agreed to speak to Helfrich. Helfrich took a statement from [Petitioner] but could not recall whether the two conversed in English, Spanish, or both.

The trial court denied [Petitioner's] motion to suppress. The court determined his statements were "freely and voluntarily given and should be admitted. Although [Petitioner] speaks mostly Spanish, he clearly understood the admonitions and questions put to him in both Spanish and English by Detective Cabral and others. [Petitioner] understood and voluntarily waived his Miranda rights."

A redacted videotape of the interview was played for the jury.

IV. APPLICABLE LAW FOR FEDERAL HABEAS CORPUS An application for writ of habeas corpus by a person in custody under judgment of a state court can be granted only for violations of the Constitution or laws of the United States. 28 U.S.C. § 2254(a); see also Peltier v. Wright, 15 F.3d 860, 861 (9th Cir. 1993); Middleton v. Cupp, 768 F.2d 1083, 1085 (9th Cir. 1985) (citing Engle v. Isaac, 456 U.S. 107, 119 (1982)). This petition for writ of habeas corpus was filed after the effective date of, and thus is subject to, the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"). Lindh v. Murphy, 521 U.S. 320, 326 (1997); see also Weaver v. Thompson, 197 F.3d 359, 362 (9th Cir. 1999). Under AEDPA, federal habeas corpus relief also is not available for any claim decided on the merits in state court proceedings unless the state court's adjudication of the 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 presented in the State court proceeding. 28 U.S.C. § 2254(d); see also Penry v. Johnson, 532 U.S. 782, 792-93 (2001); Williams v. Taylor, 529 U.S. 362, 402-03 (2000); Lockhart v. Terhune, 250 F.3d 1223, 1229 (9th Cir. 2001).

In applying AEDPA's standards, the federal court must "identify the state court decision that is appropriate for our review." Barker v. Fleming, 423 F.3d 1085, 1091 (9th Cir. 2005). "The relevant state court determination for purposes of AEDPA review is the last reasoned state court decision." Delgadillo v. Woodford, 527 F.3d 919, 925 (9th Cir. 2008) (citations omitted). "Where there has been one reasoned state judgment rejecting a federal claim, later unexplained orders upholding that judgment or rejecting the same claim rest upon the same ground." Ylst v. Nunnemaker, 501 U.S. 797, 803 (1991). To the extent no such reasoned opinion exists, courts must conduct an independent review of the record to determine whether the state court clearly erred in its application of controlling federal law, and whether the state court's decision was objectively unreasonable. Delgado v. Lewis, 223 F.3d 976, 981-82 (9th Cir. 2000). "The question under AEDPA is not whether a federal court believes the state court's determination was incorrect but whether that determination was unreasonable--a substantially higher threshold." Schriro v. Landrigan, 550 U.S. 465, 473 (2007) (citing Williams, 529 U.S. at 410). "When it is clear, however, that the state court has not decided an issue, we review that question de novo." Reynoso v. Giurbino, 462 F.3d 1099, 1109 (9th Cir. 2006) (citing Rompilla v. Beard, 545 U.S. 374, 377 (2005)).


The petition for writ of habeas corpus sets forth four requests. Petitioner requests: (1) judicial notice; (2) an order to show cause; (3) an evidentiary hearing in the Superior Court; and (4) appointment of counsel. See Pet'r's Pet. 16.

A. First Request: Judicial Notice

First, Petitioner requests "judicial notice of the record in People v. Luis Cardenas Orosco, Superior Court Case No. 04F06886, Court of Appeal Case No. C051676, and California Supreme Court Case No. S153939." Pet'r's Pet. 16.

"A judicially noticed fact must be one not subject to reasonable dispute in that it is either (1) generally known within the territorial jurisdiction of the trial court[;] or (2) capable of accurate and ready determination by resort to sources whose accuracy cannot reasonably be questioned." FED. R. EVID. 201(b); see United States v. Bernal-Obeso, 989 F.2d 331, 333 (9th Cir. 1993). "A court shall take judicial notice if requested by a party and supplied with the necessary information." FED. R. EVID. 201(d). The record of a state court proceeding is a source whose accuracy cannot reasonably be questioned, and judicial notice may be taken of court records. Mullis v. U.S. Bankruptcy Court, 828 F.2d 1385, 1388 n.9 (9th Cir. 1987), cert. denied, 486 U.S. 1040 (1988); Valerio v. Boise Cascade Corp., 80 F.R.D. 626, 635 n.1 (N.D. Cal. 1978), aff'd, 645 F.2d 699 (9th Cir. 1981), cert. denied, 454 U.S. 1126 (1981); see also Colonial Penn Ins. Co. v. Coil, 887 F.2d 1236, 1239 (4th Cir. 1989); Rodic v. Thistledown Racing Club, Inc., 615 F.2d 736, 738 (6th Cir. 1980).

Petitioner's request for judicial notice of the record in the state court proceedings is granted. FED. R. EVID. 201(b)(2), (c); see also, e.g., Papai v. Harbor Tug & Barge Co., 67 F.3d 203, 207 n.5 (9th Cir. 1995) (upholding judicial notice of orders and decisions by other courts), rev'd on other grounds, 520 U.S. 548 (1996); United States ex rel. Robinson Rancheria Citizens Council v. Borneo, Inc., 971 F.2d 244, 248 (9th Cir. 1992) (holding courts may take judicial notice of "proceedings in other courts, both within and without the federal judicial system, if those proceedings have a direct relation to matters at issue"); Mullis, 828 F.2d at 1388 n.9 (determining courts may take judicial notice of contents in ...

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