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Javier Frausto v. M.D. Biter

June 20, 2012

JAVIER FRAUSTO, PETITIONER,
v.
M.D. BITER, WARDEN, RESPONDENT.



The opinion of the court was delivered by: Charles F. Eick United States Magistrate Judge

REPORT AND RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE

This Report and Recommendation is submitted to the Honorable Stephen V. Wilson, United States District Judge, pursuant to 28 U.S.C. section 636 and General Order 05-07 of the United States District Court for the Central District of California.

PROCEEDINGS

Petitioner filed a "Petition for Writ of Habeas Corpus By a Person in State Custody" on January 24, 2012. Respondent filed an Answer on April 18, 2012. Petitioner filed a Reply on May 21, 2012. On June 8, 2012, Petitioner filed "Petitioner's Request for the Court to Take Judicial Notice of Facts and Laws, etc."*fn1

BACKGROUND

A jury found Petitioner guilty of the premeditated first degree murder of Lynette Lucero and the premeditated attempted murders of Jimmy Sigala and Julio Castro (Reporter's Transcript ["R.T."] 3002-06; Clerk's Transcript ["C.T."] 401-06). The jury found true the allegations that, with respect to all of the offenses, Petitioner personally and intentionally discharged a firearm, a handgun, which proximately caused great bodily injury and death within the meaning of California Penal Code section 12022.53(d), and personally and intentionally discharged a firearm, a handgun, within the meaning of California Penal Code section 12022.53(c) (R.T. 3002-06; C.T. 401-06). Petitioner received a sentence of 214 years to life plus three five-year enhancements (3312-13; C.T. 417-20.).

The Court of Appeal modified the sentence to include only one five-year enhancement and to recalculate custody credit, but otherwise affirmed the judgment (Respondent's Lodgment 5; see People v. Frausto, 180 Cal. App. 4th 890, 103 Cal. Rptr. 3d 231 (2009)). The California Supreme Court denied Petitioner's petition for review (Respondent's Lodgment 7).

Petitioner filed habeas corpus petitions in the Los Angeles County Superior Court, the California Court of Appeal and the California Supreme Court, all of which were denied summarily (see Respondent's Lodgments 8, 9, 10, 11, 12, 13).

SUMMARY OF TRIAL EVIDENCE

The following summary is taken from the opinion of the California Court of Appeal in People v. Frausto, 180 Cal. App. 4th 890, 103 Cal. Rptr. 3d 231 (2009). See Slovik v. Yates, 556 F.3d 747, 749 n.1 (9th Cir. 2009) (taking factual summary from state appellate decision).

[I]n July 2007, victims Lucero and Sigala were next door neighbors on Alice Street in the Cypress Park area of Los Angeles; victim Castro was Sigala's daughter's boyfriend; Castro's brother, Ernesto, lived around the corner. [Petitioner] lived about five blocks away.

On the night of July 4, 2007, Castro, Sigala, and Lucero were in front of Sigala's home watching fireworks. At about 1:00 a.m., Jim Guzman was walking through the alley behind Lucero's home toward a party when he saw [Petitioner] coming in his direction and carrying a gun wrapped in a T-shirt. Guzman knew [Petitioner], primarily through one of [Petitioner's] brothers. Shortly thereafter, Lucero was fatally shot, and Sigala and Castro were wounded. Guzman was still at the party a little while later and unaware of the shooting when he saw [Petitioner] arrive.

Two Los Angeles Police Department officers who were first on the scene of the shooting saw three gunshot victims: a male with a neck wound was seated in the front yard (Castro); another male with a stomach wound was lying in a fetal position in the yard of Sigala's house (Sigala); and a female was lying in the driveway (Lucero). Castro's brother, Ernesto, told one of the officers that Castro said the victims were "chitchatting" when [Petitioner] "started tripping" and "shooting."

At trial, Castro testified he never saw the shooter who approached from behind; Castro only remembered being shot, passing out and then waking up in the hospital emergency room. But prior to trial, Castro had told his two brothers and one of the prosecutors that [Petitioner] was the assailant.

Castro's other brother, Miguel, testified that his brother, Ernesto, told him that Castro had been shot by someone named "Frausto or something like that." Castro told Miguel that Sigala was shot first; Lucero, second; and Castro, last.

(Respondent's Lodgment 5, at pp. 3-4; see People v. Frausto, 180 Cal. App. 4th at 894-95).

PETITIONER'S CONTENTIONS

Petitioner contends that his appellate counsel rendered ineffective assistance, assertedly by:

(1) failing to challenge the trial court's denial of Petitioner's request to dismiss ...


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