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Angel Provencio v. Chris Chrones

January 17, 2012


The opinion of the court was delivered by: M. James Lorenz United States District Court Judge


Petitioner Angel Provencio, a state prisoner who is represented by counsel, filed a petition for a writ of habeas corpus under 28 U.S.C. § 2254 that was subsequently amended. The case was referred to United States Magistrate Judge Cathy Ann Bencivengo for a report and recommendation ("Report") pursuant to 28 U.S.C. § 636(b)(1)(B) and Civil Local Rule 72.1(d). The magistrate judge issued an amended Report recommending denial of the second amended petition. Petitioner then filed objections to the amended Report, requested and was granted oral argument.

Having fully reviewed the matters presented including oral argument, petitioner's objections are OVERRULED, the Report and Recommendation is ADOPTED, and the Petition



1. Standard of Review

a. Report and Recommendation

In reviewing a magistrate judge's report and recommendation, the district court "shall make a de novo determination of those portions of the report . . . to which objection is made," and "may accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate judge." 28 U.S.C. § 636(b)(1). Under this statute, "the district judge must review the magistrate judge's findings and recommendations de novo if objection is made, but not otherwise." United States v. Reyna-Tapia, 328 F.3d 1114, 1121 (9th Cir. 2003) (en banc) (emphasis in original); see Schmidt v. Johnstone, 263 F. Supp. 2d 1219, 1225-26 & n.5 (D. Ariz. 2003) (applying Reyna-Tapia to habeas review). Because petitioner filed objections to the entirety of the amended Report, the Court conducts a de novoreview.

b. Writ of Habeas Corpus

A federal court is bound by federal statute to affirm a state court judgment unless the decision "was contrary to, or an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States." 28 U.S.C. § 2254(d)(1). "Clearly-established" law consists of the holdings not the dicta of the Supreme Court. Williams v. Taylor, 529 U.S. 362, 412 (2000).

The Supreme court has noted that the "contrary to" and "unreasonable application" clauses have distinct meanings. Williams, 529 U.S. at 405. A "state-court decision can be 'contrary to' th[e] Court's clearly established precedent . . . if the state court arrives at a conclusion opposite to that reached by th[e] Court on a question of law." Id. A state-court decision would also be contrary to the "Court's clearly established precedent if the state court confronts a set of facts that are materially indistinguishable from a decision of th[e] Court and nevertheless arrives at a result different from[that] precedent." Id. at 406.

Further, a federal court must affirm the state court decision unless it "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); Lockyer v. Andrade, 538 U.S. 63 (2003). The state court's factual findings are presumed correct if not rebutted with clear and convincing evidence. 28 U.S.C. § 2254(e)(1); Taylor v. Maddox, 336 F.3d 992, 1000 (9th Cir. 2004). It is petitioner's burden to show the state court's decision was either contrary to or an unreasonable application of federal law. Woodford v. Visciotti, 123 S.Ct. 357');">123 S. Ct. 357, 360 (2002). "A federal habeas court may not issue the writ simply because that court concludes in its independent judgment that the relevant state court decision applied clearly established federal law erroneously or incorrectly." Lockyer, 123 S. Ct. at 1175 (citations omitted). "Rather, that application must be objectively unreasonable." Id. (citations omitted). In regard to the "unreasonable application" prong, the Court specified that "[a] state-court decision that correctly identifies the governing legal rule but applies it unreasonably to the facts of a particular prisoner's case certainly would qualify as a decision 'involv[ing] an unreasonable application of ... clearly established Federal law.' " Williams, 120 S. Ct. 1495 (alteration in original). The "'unreasonable application' clause requires the state-court decision to be more than incorrect or erroneous." Lockyer, 538 U.S. at 75; Williams, 529 U.S. at 410.

Both the Supreme Court and the Ninth Circuit Court of Appeals have recently explained that a habeas petition must be reviewed through the deferential lens of the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"), 28 U.S.C. § 2254. In Sessoms v. Runnels, Ninth Circuit noted that even if some claims raise a close question as to how the habeas court may have ruled were it was reviewing a conviction without AEDPA deference, the petitioner must "'show that the state court's ruling on the claim being presented in federal court was so lacking in justification that there was an error well understood and comprehended in existing law beyond any possibility for fairminded disagreement.'" Sessoms, 650 F.3d 1276, 1277-78 (9th Cir. 2011)(quoting Harrington v. Richter, 131 S. Ct. 770, 786--87 (2011).

2. Procedural Background*fn1

In a four-count Information filed in the San Diego County Superior Court on December 31, 2003, Petitioner was charged with possession of 0.21 grams of methamphetamine in violation of Cal. Health and Safety Code section 11377(a) (felony) (count 1), driving under the influence of a controlled substance in violation of Cal. Vehicle Code section 23152(a) (misdemeanor) (count 2), being under the influence of a controlled substance in violation of Cal. Health and Safety Code section 11550(a) (misdemeanor) (count 3), and unauthorized possession of a hypodermic needle in violation of Cal. Business and Professions code section 4140 (misdemeanor) (count 4). [Lodgment 1 at 1-5.] It was also alleged that Petitioner had previously been convicted of three felonies, making him eligible for sentencing under California's Three Strikes Law (Cal. Penal Code sections 667(b) thru (i) and 1170.12). Finally, the information alleged that Petitioner had been convicted of two in-prison offenses for possession of a controlled substance. [Lodgment 1 at 3, 4.]

On April 20, 2004, Petitioner pled guilty to count 2 (driving under the influence of a controlled substance) and count 3 (being under the influence of a controlled substance). [Lodgment 1 at 21-26] Petitioner also waived his right to a jury trial on the alleged sentence enhancements and admitted three prior "strike" offenses within the meaning of Cal. Penal Code section 667(d)(1) and two in-prison drug offenses. [Lodgment 2, Vol. 2 at 33-37.]

On May 23, 2003, a jury found Petitioner guilty of count 1 (possession of methamphetamine) and count 4 (unauthorized possession of a hypodermic needle). [Lodgment 1 at 91-92, 150; Lodgment 2, Vol. 5 at 277-78.]

On December 9, 2004, Petitioner appeared before the state trial court for a probation hearing and sentencing. [Lodgment 1 at 159; Lodgment 2 at 600-610.] First, the trial court (Hon. Raymond Edwards, Jr.), addressed the Petitioner's motion to dismiss prior convictions alleged under three strikes law in furtherance of justice pursuant to Cal. Penal Code section 1385. The Court denied Petitioner's motion and, after reviewing the pertinent case law, stated as follows:

So it is in light of these cases that the court examines the request by counsel to exercise leniency and strike the strikes pursuant to 1385. As Mr. Provencio has here noted, he spent some 15 years in prison. The matter which brings him before the court sets out that he has in the case before the court SCS180860, two prison priors. So prison has not had the desired effect, which is convincing the defendant to conform his behavior to the requirements of the law.

Counsel and the defendant here today say that defendant has a sickness, which is his chemical dependency. This is something that the defendant has known for the period of time that he has been involved with the taking of drugs. Yet, no positive action has been taken to deal with this issue. And the record before the court, if you look at the probation officer's report, beginning at page 3 where it lays out the defendant's criminal history at page 4, 5 and 6, the criminal conduct of the defendant basically has gone unabated for 20 years. And because of this 20-year history -- as the court pointed out in 1980, these recidivist statutes, which is the three strikes law, have harsher sentences because they deal with people who by repeated criminal acts have shown that they are incapable of conforming to the norms of society.

And Mr. Provencio, in looking at this history and the efforts at rehabilitation that have been made in the past -- you were a ward of the court, and there were, through the 1980's, efforts to deal with you in the juvenile justice system. In the late 80's, you came into the adult court, and after being in adult court, efforts were made at probation, and probation having not been successful. And then the continued criminal activity, including the first degree burglary, led to a prison commitment. And the fact that these prison commitments, following this long effort at local rehabilitation, have failed, still has not had the desired effect.

So in light of the nature of the offense, which is the repetitive nature of your criminal conduct -- although the particular offense is not, by any stretch of the imagination, the most serious of offenses that we see coming before the court, it is the inability to conform your conduct to the requirements of the law that causes the court to deny the motion to strike the strikes pursuant to 1385. So that motion is denied for the reasons stated, based upon the citations cited. [Lodgment 2, Vol. 6 at 606-608.]

The trial judge then sentenced Petitioner to a term of twenty-five years to life for count one (possession of methamphetamine), plus an additional two years for the two prison priors. [Lodgment 1 at 159; Lodgment 2, Vol. 6 at 608-610.] On the remaining counts, the court sentenced Petitioner to 180 days to be served concurrently with his punishment under Count 1 and also gave him credit for time served. [Id.]

Petitioner filed a direct appeal, contending that his sentence of twenty-five years to life was cruel and unusual punishment, in violation of the United States and California Constitutions. [Lodgment 7 at 27-47.] Petitioner also argued that his Sixth and Fourteenth Amendment right to effective assistance of counsel had been violated because: his trial counsel failed to object to unqualified witness testimony regarding the lack of fingerprinting that usurped the jury's fact-finding role on the question of appellant's guilt or innocence; allowed the witness to bolster his own testimony; and failed to obtain essential evidence that deprived appellant of a crucial aspect of his defense (hereinafter the "previous" Sixth Amendment claim). [Lodgment 7 at 4-26.]*fn2 On January 5, 2006, the California appellate court rejected his appeal. [Lodgment 4 -- People v. Provencio, No. D045641, slip op. (Jan. 5, 2006).] On February 6, 2006, Petitioner filed a Petition for Review with the California Supreme Court. [Lodgment 5]. On March 15, 2006, the California Supreme Court summarily denied Petitioner's petition for review. [Lodgment 9.]

On April 24, 2007, Petitioner filed a Petition for Writ of Habeas Corpus containing Petitioner's current Sixth Amendment claim to the San Diego County Superior Court. [Doc. No. 10.] On August 8, 2007, the Superior Court denied the petition. [Lodgment 14.] On February 28, 2008, Petitioner filed a Petition for Writ of Habeas Corpus containing Petitioner's current Sixth Amendment claim in the California Court of Appeal. [Lodgment 15.] On June 30, 2008, the Court of Appeal denied the petition. [Lodgment 16.] On July 18, 2008, Petitioner filed a Petition for Writ of Habeas Corpus containing Petitioner's current Sixth Amendment claim in the California Supreme Court. [Lodgment 17.] On February 18, 2009, the California Supreme Court denied Petitioner's state habeas corpus petition. [Doc. No. 40; Lodgment 18.]

3. Factual Background

This Court gives deference to state court findings of fact and presumes them to be correct. 28 U.S.C. ยง 2254(e)(1); see also Parke v. Raley, 506 U.S. 20, 35-36 (1992) (holding findings of historical fact, including inferences properly drawn from these facts, are entitled to statutory presumption of correctness). Petitioner does not object to the statement of facts provided ...

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