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Santos Ignacio Lopez v. Tim Virga

October 29, 2012



Petitioner, a state prisoner, proceeds pro se with a petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. At issue is the sentence imposed with respect to a judgment of conviction entered against petitioner on August 26, 2008 in the Sacramento County Superior Court on charges of bringing heroin into a state prison and possession of heroin in a state prison. Petitioner seeks federal habeas relief on grounds that, first, the trial court abused its discretion in refusing to dismiss one or both of the prior serious felony conviction enhancement allegations brought against him; and second, the indeterminate life sentence imposed in his case was disproportionate to the offenses of which he was convicted. After careful consideration of the record and the applicable law, the undersigned will recommend that petitioner's application for habeas corpus relief be denied.


On August 26, 2008, a Sacramento County Superior Court jury found petitioner guilty of bringing heroin into California State Prison-Sacramento (CSP-Sacramento) and possession of heroin in CSP-Sacramento. (1 Clerk's Transcript on Appeal ("CT") at 121.*fn1 ) In a bifurcated bench trial, the trial court also determined petitioner had previously incurred two prior "strike" convictions within the meaning of California Penal Code §§ 667(b)-(I) and 1170.12. (2CT at 326-27.) Pursuant to the decision in People v. Superior Court (Romero), 13 Cal.4th 497 (1996), petitioner moved the state trial court to exercise its discretion and strike his prior strike convictions. (1CT at 147-56.) The trial court denied that motion and sentenced petitioner to an indeterminate term of twenty-five years to life in state prison in accordance with California's Three Strikes Sentencing Law. (2CT at 388-89.)

On appeal in state court, petitioner presented the same two issues that he has presented to this court on collateral review. (Resp't's Lod. Doc. 1) On August 17, 2010, the California Court of Appeal for the Third Appellate District affirmed the judgment his conviction on appeal. (Resp't's Lod. Docs. 3) On October 20, 2010, the California Supreme Court denied a petition for review filed on petitioner's behalf. (Resp't's Lod. Doc. 5.) On August 25, 2011, the pending federal habeas petition raising the same two claims was docketed in this court. Accordingly, the parties agree that petitioner has exhausted the two claims presented in his federal petition by fairly presenting them to the highest state court in California.


The California Court of Appeal for the Third Appellate District summarized the facts underlying petitioner's offenses in an unpublished memorandum and opinion on direct appeal as follows:

In January 2006, defendant, an inmate at the California State Prison in Sacramento, was visited by his father and sister in the prison's visiting area. Correctional Officer Pamela Montez was working in the visiting room control booth that day, surveying the room by video monitor. Montez noticed that defendant was watching the officer's desk and not interacting much with his visitors. Montez saw defendant place something in his mouth and then gulp his drink down without chewing. She also thought she saw him place something into his rectum. Montez relayed the information to Correctional Officer Steven Williamson, who was working the visiting room desk.

Williamson summoned defendant to the search area. However, defendant turned and walked away from Williamson, taking things from his pockets and throwing them on the ground as he walked. When defendant refused to heed Williamson's repeated commands to stop and get down, Williamson took defendant down to the ground and restrained him. Williamson directed another officer, William Brown, to the location of a balloon thrown by defendant. Brown collected the balloon which was later found to contain heroin. Brown also collected all of the items from the table where defendant and his visitors had been sitting and searched each item. Inside a warm ham and cheese sandwich, he found a latex glove containing four small balloons, each of which contained heroin. Defendant was taken to the "stripout" room and searched, then placed on contraband watch. Officers eventually collected five balloons from defendant's feces, each of which contained heroin. The heroin from all of the balloons recovered had a combined weight of 41.16 grams.

(Resp't's Lod. Doc. 3 (hereinafter Opinion) at 2-3.)


I. Standards of Review Applicable to Habeas Corpus Claims An application for a writ of habeas corpus by a person in custody under a judgment of a state court can be granted only for violations of the Constitution or laws of the United States. 28 U.S.C. § 2254(a). A federal writ is not available for alleged error in the interpretation or application of state law. See Wilson v. Corcoran, 131 S. Ct. 13, 16 (2010); Estelle v. McGuire, 502 U.S. 62, 67-68 (1991); Park v. California, 202 F.3d 1146, 1149 (9th Cir. 2000).

Title 28 U.S.C. § 2254(d) sets forth the following standards for granting federal habeas corpus relief:

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.

For purposes of applying § 2254(d)(1), "clearly established federal law" consists of holdings of the United States Supreme Court at the time of the state court decision. Stanley v. Cullen, 633 F.3d 852, 859 (9th Cir. 2011) (citing Williams v. Taylor, 529 U.S. 362, 405-06 (2000)). Nonetheless, "circuit court precedent may be persuasive in determining what law is clearly established and whether a state court applied that law unreasonably." Stanley, 633 F.3d at 859 (quoting Maxwell v. Roe, 606 F.3d 561, 567 (9th Cir. 2010)).

A state court decision is "contrary to" clearly established federal law if it applies a rule contradicting a holding of the Supreme Court or reaches a result different from Supreme Court precedent on "materially indistinguishable" facts. Price v. Vincent, 538 U.S. 634, 640 (2003). Under the "unreasonable application" clause of § 2254(d)(1), a federal habeas court may grant the writ if the state court identifies the correct governing legal principle from the Supreme Court's decisions, but unreasonably applies that principle to the facts of the prisoner's case.*fn2

Lockyer v. Andrade, 538 U.S. 63, 75 (2003); Williams, 529 U.S. at 413; Chia v. Cambra, 360 F.3d 997, 1002 (9th Cir. 2004). In this regard, 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. Rather, that application must also be unreasonable." Williams, 529 U.S. at 412. See also Schriro v. Landrigan, 550 U.S. 465, 473 (2007); Lockyer, 538 U.S. at 75 (it is "not enough that a federal habeas court, in its independent review of the legal question, is left with a 'firm conviction' that the state court was 'erroneous.'"). "A state court's determination that a claim lacks merit precludes federal habeas relief so long as 'fairminded jurists could disagree' on the correctness of the state court's decision." Harrington v. Richter,131 S. Ct. 770, 786 (2011) (quoting Yarborough v. Alvarado, 541 U.S. 652, 664 (2004)). Accordingly, "[a]s a condition for obtaining habeas corpus from a federal court, a state prisoner ...

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