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REINAL CASTRO, JR v. M.D. MCDONALD

November 29, 2010

REINAL CASTRO, JR., PETITIONER,
v.
M.D. MCDONALD, RESPONDENT.



The opinion of the court was delivered by: Kendall J. Newman United States Magistrate Judge

ORDER

I. Introduction

Petitioner is a state prisoner proceeding without counsel with an application for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. Plaintiff has consented to proceed before the undersigned for all purposes. See 28 U.S.C. § 636(c). Petitioner challenges his 2009 conviction on two counts of transportation of methamphetamine, with allegations of a prior drug conviction and committing an offense while on bail. Petitioner was sentenced to a determinate term of nine years in state prison.

Petitioner claims that, at a critical stage of the proceedings, the trial court appointed a second attorney for petitioner while he was still represented by retained counsel, resulting in each attorney having a position adversarial to the other, depriving petitioner of his Sixth Amendment right to conflict-free counsel. After a careful review of the record in this action, this court has determined that the petition for writ of habeas corpus should be denied.

II. Procedural History

1. Petitioner twice filed notices of appeal challenging the validity of his plea and each time the court refused his request for a certificate of probable cause. [Petitioner] filed a third notice of appeal, this time asserting that the plea was based on matters occurring after the plea and did not challenge the validity of the plea. Consequently, the appeal became operative with the record being prepared and counsel being appointed.

People v. Castro, 2010 WL 1178526 (Cal.App.3d Dist. 2010). On March 29, 2010, the conviction was affirmed by the California Court of Appeal, Third Appellate District, in an unpublished opinion. Id.

2. Petitioner filed a petition for review in the California Supreme Court, which was denied on June 9, 2010, without comment. (Respondent's Lodged Document No. 8.)

3. On June 24, 2010, petitioner filed the instant petition for writ of habeas corpus. (Dkt. No. 1.) On October 5, 2010, respondent filed an answer. (Dkt. No. 11.) Petitioner did not file a reply or a traverse.

III. Facts*fn1

On April 28, 2007, at 10:51 p.m., an officer observed the [petitioner], Reinal Castro, Jr., leaning into the driver's side window of a vehicle.

The vehicle was parked on the east side of North Cottonwood Street, facing north.

The driver of another vehicle was later identified as co-defendant Michael Santiago, a parolee at large. As the officer approached, Castro began walking northbound, away from the officer.

The officer parked directly behind the vehicle and exited. The officer yelled, "Hey, what's up Reinal?" The [petitioner] looked back in the officer's direction and began running northbound towards the other vehicle. The vehicle began driving northbound on North Cottonwood Street. The [petitioner] was running alongside the vehicle attempting to get into the front passenger seat. As the [petitioner] entered the vehicle, the vehicle drove westbound on West Kentucky Avenue without stopping at a controlled intersection.

The officer attempted an enforcement stop on the vehicle. The co-defendant failed to yield and accelerated at speeds of over 70 miles per hour on West Kentucky Avenue. The posted speed is 40 miles per hour. The co-defendant ran a red light at the intersection of Kentucky and Ashley Avenue. The pursuit ended on Bright Day Drive when the [petitioner] and the co-defendant jumped out of the ...


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