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Carlos Hernandez v. Matthew Cate

August 19, 2011

CARLOS HERNANDEZ,
PETITIONER,
v.
MATTHEW CATE, WARDEN, RESPONDENT.



The opinion of the court was delivered by: Hayes, Judge

ORDER

The matter before the Court is the review of the Report and Recommendation (ECF No. 10) issued by United States Magistrate Judge Barbara L. Major, recommending that the Petition for Writ of Habeas Corpus (ECF No. 1) be denied.

I. Background

On July 24, 2008, a state court jury found Petitioner guilty of Sodomy by Use of Force and Forcible Rape, and as to both counts, found true the special allegations that he: (1) committed the crimes during the commission of a burglary with the intent to commit a sex crime; (2) personally used a dangerous and deadly weapon; and (3) used a deadly weapon. Lodgment No. 1 at 68-71. The trial court sentenced Petitioner to 50 years to life, plus a consecutive 8-year term. Id. at 101.

On December 17, 2009, the California Court of Appeal affirmed the judgment of the trial court in a written decision. Lodgment No. 10; see also People v. Hernandez, 180 Cal. App. 4th 337 (2009).

On March 30, 2010, the California Supreme Court denied the petition for review without citation to authority. Lodgment No. 12.

On November 15, 2010, Petitioner, proceeding pro se, filed a Petition for Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254 in this Court. (ECF No. 1). Petitioner raises two grounds for relief in his Petition. First, Petitioner contends that the trial court violated his due process rights under the Fifth and Fourteenth Amendments as well as his right to present a defense, as guaranteed by the Sixth Amendment, by failing to instruct the jury that the reasonable, but mistaken, belief that the victim has consented is a defense to forcible rape and forcible sodomy. Second, Petitioner contends that his Sixth Amendment rights were violated because he was not given notice of the exact charges against him. The charges against him triggered California's One Strike sentencing law, which required a showing that Petitioner committed burglary with the specific intent to commit one of the sexual offenses enumerated under California Penal Code § 667.61(c). Petitioner contends that, because some jurors could have convicted him under the belief that he committed the burglary with the specific intent to rape the victim while others could have believed that he harbored the specific intent to sodomize the victim, Petitioner was denied his right to a unanimous jury verdict, and his Sixth Amendment rights recognized in Apprendi v. New Jersey, 530 U.S. 66 (2000) and Cunningham v. California, 549 U.S. 270 (2007).

On February 18, 2011, Respondent filed an Answer. (ECF No. 9).

The docket reflects that Petitioner did not file a traverse.

On May 6, 2011, the Magistrate Judge issued the Report and Recommendation. (ECF No. 10). The Report and Recommendation recommends that judgment be entered denying the Petition. The Report and Recommendation states that "no later than May 27, 2011, any party to this action may file written objections with the Court." Id. at 22 (emphasis in original).

On June 10, 2011, Petitioner filed a Motion for Leave to File Delayed Objections. (ECF No. 11).

On June 21, 2011, the Court granted the Motion for Leave to File Delayed Objections, and ordered that any objections to the Report and Recommendation must be filed no later than July 20, 2011. (ECF No. 12).

The docket reflects that no objections to the Report and ...


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