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Roger Thomas Cash v. A. Fakhoury (Warden

August 31, 2011


The opinion of the court was delivered by: Carla M. Woehrle United States Magistrate Judge


For reasons stated below, the petition for habeas corpus relief is denied and this action is dismissed with prejudice.


The pro se petitioner, a prisoner in state custody, challenges a conviction in California Superior Court, Los Angeles County, Case No. NA077650. [Petition at 2.] On June 26, 2008, a jury convicted Petitioner of robbery and carjacking, and found "true" allegations that, in each offense, a principal was armed with a firearm. [Clerk's Transcript ("CT") at 89-91.] On August 21, 2008, the court sentenced Petitioner to a six-year term and a one-year enhancement for robbery, and a concurrent five-year term and one-year enhancement for carjacking, for a total sentence of seven years. [CT at 106-109.]

Petitioner appealed, and his appointed appellate counsel filed a brief pursuant to People v. Wende, 25 Cal. 3d 436, 158 Cal. Rptr. 839 (1979), asking the court of appeal to independently review the record. [Lodged Document ("L. Doc.") 3.] The California Court of Appeal affirmed the judgment of conviction in an unpublished opinion filed May 27, 2009. [No. B210706, L. Doc. 5.] It does not appear that Petitioner filed a petition for review in the California Supreme Court on direct review.

Petitioner filed a habeas petition (dated December 27, 2009), which the California Supreme Court summarily denied, without comment or citation, on June 28, 2010. [No. S179139, L. Docs. 6-7.] Meanwhile, Petitioner filed a habeas petition (dated June 14, 2010), which the superior court denied on June 25, 2010, in an order stating, in its entirety, as follows: "The Court has read and considered petitioner's petition for a writ of habeas corpus. The Court does not find the petition meritorious. The petition is denied." [L. Docs. 8-9.] Petitioner then filed a habeas petition (with a proof of service dated July 6, 2010), which the court of appeal denied on July 15, 2010, in an order stating, in its entirety, as follows:

The petition for writ of habeas corpus filed herein July 12, 2010 has been read and considered. The court has also examined the file in proceeding number B210706, petitioner Cash's direct appeal from the judgment in Los Angeles Count Superior Court case number NA077650. The petition is denied. [No. B225690, L. Docs. 10-11.] Finally, Petitioner filed a petition for review of the court of appeal's denial (with a proof of service dated July 26, 2010), which the state supreme court summarily denied, without comment or citation, on September 15, 2010. [No. S184790, L. Docs. 12-13, and copy of denial order attached to Petition.]*fn1

The present Petition for Writ of Habeas Corpus by a Person in State Custody (28 U.S.C. § 2254), dated September 28, 2010, was lodged court on October 1, 2010, and filed on October 12, 2010. [Petition, Docket no. 1.] Respondent's Answer was filed on February 10, 2011. [Docket no. 15.] Petitioner's Response was filed on March 7, 2010. [Docket no. 19.] The parties have consented to the jurisdiction of the undersigned magistrate judge. [Docket nos. 3, 14, 17.]


The Court of Appeal gave the following summary:

Tony Bracy was sentenced to state prison as a result of operating a "chop shop" where he bought and dismantled stolen vehicles. Following his release on March 6, 2008, Bracy was visiting the house of a friend, Holly Henderson, when a man knocked on the front door. Henderson invited the man inside and he produced a gun, which he used to strike Bracy in the face. He then ordered Bracy to lie on the floor and covered Bracy's eyes and bound his wrists and ankles with duct tape. Two confederates arrived and helped the man search Bracy's pockets, taking Bracy's wallet, watch and other items. As the perpetrators were talking, Bracy recognized the voice of the man who had left a threatening telephone message that Bracy would be killed unless he returned a certain motorcycle. The perpetrators left the house, and Bracy was able to remove the duct tape. He went outside, saw the perpetrators searching his truck and fled. Bracy later contacted police. His truck was taken.

Roger Thomas Cash met with police voluntarily. During the interview, he told officers he believed Bracy had stolen his motorcycle. On the night of March 6, 2008, Cash saw Bracy's truck parked outside Henderson's house. Cash entered the house, saw Bracy and tackled him. Cash admitted he had bound Bracy with duct tape, before demanding payment of $20,000 as compensation for his stolen motorcycle. Cash also admitted he threatened to keep Bracy's truck unless Bracy surrendered the motorcycle or the money.

At trial, Cash testified in his own defense that he had lied to police to protect his friend Damian Morales, who had telephoned him on March 6, 2008 from Henderson's house.

Cash arrived to find Bracy on the floor, bound in duct tape. Cash admitted he had demanded that Bracy return his motorcycle, but denied hitting Bracy or taking his truck or personal property.

[L. Doc. 5 at 2, footnote omitted.]


Petitioner asserts four grounds for federal habeas relief: (1) ineffective assistance of trial counsel; (2) ineffective assistance of appellate counsel; (3) "factual innocence"; and (4) failure to disclose exculpatory material.


A federal court may review a habeas petition by a person in custody under a state court judgment "only on the ground that he is in custody in violation of the Constitution or laws or treaties of the United States." 28 U.S.C. § 2254(a). Federal habeas relief is not available for state law errors. Swarthout v. Cook, U.S. , 131 S. Ct. 859, 861, 178 L. Ed. 2d 732 (2011)(per curiam)(citing Estelle v. McGuire, 502 U.S. 62, 67, 112 S. Ct. 475, 116 L. Ed. 2d 385 (1991)).

Under the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"), a federal court may not grant habeas relief on a claim adjudicated on its merits in state court unless the adjudication led to a conviction that:

(1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the ...

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