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Juvenal Acevedo Lemos v. Connie Gipson

July 25, 2012

JUVENAL ACEVEDO LEMOS,
PETITIONER,
v.
CONNIE GIPSON, ACTING WARDEN,
RESPONDENT.



The opinion of the court was delivered by: Barbara A. McAuliffe United States Magistrate Judge

ORDER SUBSTITUTING ACTING WARDEN CONNIE GIPSON AS RESPONDENT ORDER DENYING THE PETITION FOR WRIT OF HABEAS CORPUS (DOC. 1) AND DIRECTING THE CLERK TO ENTER JUDGMENT FOR RESPONDENT ORDER DECLINING TO ISSUE A CERTIFICATE OF APPEALABILITY

Petitioner is a state prisoner proceeding pro se and in forma pauperis with a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254. Pursuant to 28 U.S.C. § 636(c)(1), the parties have consented to the jurisdiction of the United States Magistrate Judge to conduct all further proceedings in the case, including the entry of final judgment, by manifesting consent in signed writings filed by Petitioner on August 18, 2010 (doc. 5), and on behalf of Respondent on March 1, 2011 (doc. 10). Pending before the Court is the petition, which was filed on July 21, 2010. Respondent filed an answer on March 3, 2011. Petitioner filed a traverse on April 6, 2011.

I. Substitution of Respondent's Successor Fed. R. Civ. P. 25(d) provides that an action does not abate when a public officer who is a party in an official capacity dies, resigns, or otherwise ceases to hold office while the action is pending; rather, the officer's successor is automatically substituted as a party. The rule further provides that a court may at any time order substitution, but the absence of such an order does not affect the substitution.

Petitioner initially named as Respondent R. Lopez, Warden. Presently the official website of the California Department of Corrections and Rehabilitation (CDCR) *fn1 reflects that Connie Gipson is acting as warden of the California State Prison at Corcoran (CSP-COR), where the docket reflects that Petitioner is currently confined.

Accordingly, it will be ordered that Connie Gipson, Acting Warden, be substituted as Respondent.

II. Procedural Summary

In Kings County Superior Court case number 07CM7675, Petitioner was convicted of one count of child molestation and one count of rape pursuant to his guilty plea. (Ans., unnumbered exhibit, doc. 11, 10; CT 95.) *fn2 Petitioner was sentenced to eighteen years in prison. (Ans., doc. 11, 10.) Petitioner appealed the judgment to the Court of Appeal of the State of California, Fifth Appellate District (CCA), which affirmed the judgment in case number F055996 in an opinion filed on June 18, 2009. (Id.) Petitioner sought review of the CCA's decision in the California Supreme Court (CSC), which denied the petition for review on August 26, 2009, without a statement of reasoning or authority. (LD 7, 8.) *fn3

II. Standard of Decision and Scope of Review Because the petition was filed after April 24, 1996, the effective date of the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA), the AEDPA applies in this proceeding. Lindh v. Murphy, 521 U.S. 320, 327 (1997), cert. denied, 522 U.S. 1008 (1997); Furman v. Wood, 190 F.3d 1002, 1004 (9th Cir. 1999).

A district court may entertain a petition for a writ of habeas corpus by a person in custody pursuant to the judgment of a state court only on the ground that the custody is in violation of the Constitution, laws, or treaties of the United States. 28 U.S.C. §§ 2254(a), 2241(c)(3); Williams v. Taylor, 529 U.S. 362, 375 n.7 (2000); Wilson v. Corcoran, 562 U.S. --, -, 131 S.Ct. 13, 16 (2010) (per curiam).

Title 28 U.S.C. § 2254 provides in pertinent part:

(d) An application for a writ of habeas corpus on behalf of a person in custody pursuant to the judgment of a State court shall not be granted with respect to any claim that was adjudicated on the merits in State court proceedings unless the 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.

Clearly established federal law refers to the holdings, as opposed to the dicta, of the decisions of the Supreme Court as of the time of the relevant state court decision. Cullen v. Pinholster, - U.S. -, 131 S.Ct. 1388, 1399 (2011); Lockyer v. Andrade, 538 U.S. 63, 71 (2003); Williams v. Taylor, 529 U.S. 362, 412 (2000). A state court's decision contravenes clearly established Supreme Court precedent if it reaches a legal conclusion opposite to, or substantially different from, the Supreme Court's or concludes differently on a materially indistinguishable set of facts. Williams v. Taylor, 529 U.S. at 405-06. A state court unreasonably applies clearly established federal law if it either 1) correctly identifies the governing rule but then applies it to a new set of facts in a way that is objectively unreasonable, or 2) extends or fails to extend a clearly established legal principle to a new context in a way that is objectively unreasonable. Hernandez v. Small, 282 F.3d 1132, 1142 (9th Cir. 2002); see, Williams, 529 U.S. at 407. An application of clearly established federal law is unreasonable only if it is objectively unreasonable; an incorrect or inaccurate application is not necessarily unreasonable. Williams, 529 U.S. at 410.

A state court's determination that a claim lacks merit precludes federal habeas relief as long as it is possible that fairminded jurists could disagree on the correctness of the state court's decision. Harrington v. Richter, 562 U.S. -, 131 S.Ct. 770, 786 (2011).

III. The Trial Court's Failure to Consider Petitioner's

Statements as a Motion for Substitution of Counsel

Petitioner argues that the trial court violated his right to the assistance of counsel under the Sixth and Fourteenth Amendments when it failed to consider statements made by Petitioner to the court as a motion for substitution of his appointed counsel. Petitioner relies on People v. Marsden, 2 Cal.3d 118 (1970), in which the court held that the trial court abused it discretion by denying a defendant's motion for substitution of court-appointed counsel without giving the defendant an opportunity to state the reasons for the request; the court reasoned that a right to appointed counsel includes the right to discharge counsel or to a substitution of alternate counsel if it is shown that failure to do so would substantially impair or deny the right to the assistance of counsel.

A. The State Court Decision

The last reasoned state court decision on this issue was the decision of the CCA in Petitioner's direct appeal. *fn4

The presumption of § 2254(e)(1) that a state court determination of a factual issue is correct applies to a statement of facts drawn from a state appellate court's decision. Moses v. Payne, 555 F.3d 742, 746 n.1 (9th Cir. 2009). The following statement of facts and legal analysis is taken from the decision of the CCA in People v. Juvenile Acevedo Lemos, case number F055996:

On July 1, 2008,FN3 the Kings County District Attorney charged defendant with 23 counts related to ...


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