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Ramiro Lemus Magana v. Matthew Cate

July 7, 2011

RAMIRO LEMUS MAGANA,
PETITIONER,
v.
MATTHEW CATE, RESPONDENT.



The opinion of the court was delivered by: Gary S. Austin United States Magistrate Judge

FINDINGS AND RECOMMENDATION REGARDING PETITION FOR WRIT OF HABEAS CORPUS

Petitioner is a state prisoner proceeding pro se with a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254.

BACKGROUND*fn1

Petitioner is currently in the custody of the California Department of Corrections pursuant to a judgment of the Superior Court of California, County of Kings, following his conviction by jury trial on January 23, 2009, of possession of methamphetamine for sale (Cal. Health & Saf. Code § 11378) and possession of marijuana for sale (Cal. Health & Saf. Code § 11359). He was sentenced to serve a determinate term of 8 years and four months in state prison.

Petitioner filed a timely notice of appeal. On October 23, 2009, the California Court of Appeal, Fifth Appellate District ("Fifth DCA"), affirmed Petitioner's judgment in a reasoned decision. (See Resp't's Answer, Ex. 1.) Petitioner then filed a petition for review in the California Supreme Court. The petition was summarily denied on January 13, 2010. (See Petition at 3.)

Petitioner also filed a petition for writ of habeas corpus in the California Supreme Court. The petition was denied with citation to In re Waltreus, 62 Cal.2d 218 (1965) and People v. Duvall, 9 Cal.4th 464, 474 (1995). (See Petition at 4.)

On November 30, 2010, Petitioner filed the instant federal habeas petition. He presents the following two claims for relief: 1) He claims his conviction violates the double jeopardy clause of the Constitution because the state statute is so vague and standardless as to make it unclear as to the conduct it prohibits; 2) He alleges he was denied the effective assistance of appellate counsel. On March 11, 2011, Respondent filed an answer to the petition. On May 24, 2011, Petitioner filed a traverse.

STATEMENT OF FACTS*fn2

On June 21, 2008, Hanford police officer Stephanie Reese went to the house at 940 Ambassador in Hanford to investigate a report of vandalism in progress. There, Officer Reese saw that a window screen had been removed from a window, a screen door was open, and "water [was] pouring from the garage and the backyard area." Officer Reese went to the front door, the door opened, and she saw appellant inside; his clothes were wet and he was carrying a box containing jewelry. The officer ordered appellant to the ground but he tried to close the door. The officer drew her taser, and again ordered appellant to the ground. He complied, and Officer Reese handcuffed him, at which point Officer Dale Williams arrived.

Appellant stated he lived in the house, and gave his consent to a search of his person. In one of appellant's pockets, Officer Williams found a small plastic bindle, and in another pocket he found a baggie and some foil wrapped "like the size of a burrito." The bindle, baggie and foil contained, respectively, what was later determined to be 1.9 grams of marijuana, 23.2 grams of marijuana, and 86.8 grams of a substance containing methamphetamine. Officer Williams also found in one of appellant's pockets a wallet containing $1,327 in currency.

Officers thereafter searched the house and found the following: in the master bedroom, two baggies, each containing a substance containing a white crystalline substance, weighing, respectively, 2.1 grams and 110.1 grams, and, in another bedroom, four plastic bags, each containing what appeared to be methamphetamine, weighting, respectively, 70.7 grams, 69.6 grams, 33.2 grams and 24.1 grams. Chemical tests of the two largest quantities of suspected contraband were conducted. These tests revealed that the substance in each of these bags contained methamphetamine.

Officers also found a digital scale and 73.4 grams of MSM, a substance that is used as a cutting agent in preparing methamphetamine for sale.

An officer opined that both the methamphetamine and marijuana found in the house were possessed for purposes of ...


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