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Rudy Mamaril v. Gary Swarthout

July 11, 2011

RUDY MAMARIL, PETITIONER,
v.
GARY SWARTHOUT, WARDEN, RESPONDENT.



ORDER

I. INTRODUCTION

Petitioner Mamaril, a state prisoner, proceeds pro se with a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254. Petitioner stands convicted of conspiracy to sell rock cocaine in the Sacramento County Superior Court, case number 06F08729, for which he is currently serving an indeterminate prison term of 28 years to life. This matter is submitted for decision and the parties have consented to jurisdiction by United States Magistrate Judge.

II. BACKGROUND*fn1

On September 23, 2006, petitioner's friend and co-defendant, Murray Stanford, was arrested on unrelated charges. While Stanford was in jail expecting transfer to prison, a scheme was devised to raise money for Stanford's prison account. Petitioner and Taneshia Carter were to sell drugs obtained from Stanford's associates and put a share of the proceeds on Stanford's books. The conspirators discussed and implemented the scheme in part through coded conversations at the jail which were recorded. Mamaril and Carter obtained rock cocaine and sold it in furtherance of the conspiracy.

On October 5, 2006, Carter was arrested on an unrelated conspiracy to sell rock cocaine (different from that she engaged in with Stanford and petitioner). In exchange for pleading guilty to that unrelated charge and testifying truthfully against Stanford and petitioner regarding their rock cocaine conspiracy, Carter received a maximum sentence of one year in county jail and five years of probation.

Stanford and petitioner were charged as co-defendants with conspiracy to sell rock cocaine. At trial, the prosecution played the taped jail conversations and furnished transcripts to the jury. Carter testified regarding their contents. Neither co-defendant testified. A jury convicted both of conspiracy.

In a bifurcated proceeding, the court found true for enhancement purposes that petitioner had incurred two prior convictions within the meaning of California's "three strikes" law (see Cal. Penal Code §§ 667(b)-(i), 1170.12(a)-(d)) and that he had served three prior prison terms. A aggregate indeterminate "three strikes" sentence of 26 years to life was imposed, consisting of one term of 25 years to life for the conspiracy plus a consecutive one year term for the first prior prison terms. Sentencing on the other two prior prison term enhancements was stayed.

On appeal, the California Court of Appeal, Third District, affirmed the judgment but remanded for sentencing, finding that the trial court lacked discretion to stay sentencing on petitioner's second and third prior prison terms. On remand, an increased sentence of 28 years to life was imposed. A petition for review to the California Supreme Court was denied. Petitioner sought habeas corpus relief in state court where relief was likewise denied.

III. GROUNDS FOR RELIEF

Ground One: Insufficient evidence supports the conspiracy conviction.

Ground Two: The trial court erred by not striking the punishment for the second and third prior prison terms alleged as enhancements.

Ground Three: The trial court erred by refusing to exercise its authority under state law to "strike" a prior strike conviction and counsel rendered ineffective assistance on this point.

Ground Four: Petitioner attempts to "join" in all arguments raised by co-defendant Stanford in Stanford's federal petition for writ of habeas corpus.

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 (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).

This court looks to the last reasoned state court decision in determining whether the law applied to a particular claim by the state courts was contrary to the law set forth in the cases of the United States Supreme Court or whether an unreasonable application of such law has occurred. Avila v. Galaza, 297 F.3d 911, 918 (9th Cir. 2002), cert. dismissed, 538 U.S. 919. If not rebutted with clear and convincing evidence, the state court's factual findings are presumed correct. 28 U.S.C. § 2254(e)(1); Taylor v. Maddox, 336 F.3d 992, 1000 (9th Cir. 2004). It is the habeas corpus petitioner's burden to show the state court's decision was either contrary to or an unreasonable application of federal law. Woodford v. Visciotti, 537 U.S. 19, 123 S. Ct. 357, 360 (2002).

V. DISCUSSION

A. Ground One: Sufficiency of the Evidence

Petitioner claims that insufficient trial evidence supports his conviction for conspiracy to sell rock cocaine. In particular, petitioner argues the prosecution failed to prove that he entered into an agreement to commit the charged object of the conspiracy with the requisite specific intent.

The Due Process Clause protects an accused against conviction except upon proof beyond a reasonable doubt. In re Winship, 397 U.S. 358, 364 (1970). On habeas corpus review, sufficient evidence supports a conviction so long as, "after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt." Jackson v. Virginia, 443 U.S. 307, 319 (1979); see also Prantil v. California, 843 F.2d 314, 316 (9th Cir. 1988) (per curiam). The focus under Jackson is not the correctness, but rather, the reasonableness of the state judgment. See Hurtado v. Tucker, 245 F.3d 7, 19 (1st Cir. 2001).

The Jackson standard must be applied "with explicit reference to the substantive elements of the criminal offense as defined by state law." Davis v. Woodford, 384 F.3d 628, 639 (9th Cir. 2004) (quoting Jackson, 443 U.S. at 319.) The dispositive question is "whether the record evidence could reasonably support a finding of guilt beyond a reasonable doubt." Chein v. Shumsky, 373 F.3d 978, 982 (9th Cir. 2004) (quoting Jackson, 443 U.S. at 318). Under the AEDPA, thisstandard is applied with an additional layer of deference. Juan H. v. Allen, 408F.3d 1262, 1274-75 (9th Cir. 2005). The relevant question is "whether the decision of ...


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