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Jose A. Naranjo v. Timothy Busby

November 29, 2012

JOSE A. NARANJO,
PETITIONER,
v.
TIMOTHY BUSBY, WARDEN, RESPONDENT.



The opinion of the court was delivered by: Hayes, Judge:

ORDER

The matter before the Court is the Report and Recommendation (ECF No. 15) of United States Magistrate Judge Peter C. Lewis, filed on June 6, 2012.

BACKGROUND

On February 11, 2009, in California Superior Court, County of San Diego, Petitioner Jose A. Naranjo entered a plea of guilty to: (1) forcible rape in violation of Cal. Penal Code § 261(a)(2); (2) sodomy by use of force in violation of Cal. Penal Code § 286(c)(2); (3) assault in violation of Cal. Penal Code § 245(a)(1) with an enhancement for personal infliction of great bodily injury pursuant to Cal. Penal Code § 12022.7(a); and (4) making criminal threats in violation of Cal. Penal Code § 422. (Lodgment 3; Lodgment 11). Pursuant to a plea agreement, Petitioner agreed to serve a prison term of eighteen years and eight months. Id. The judge did not advise Petitioner of any appeal rights that he was waiving or preserving under the plea agreement.

On March 12, 2009, Petitioner filed an ex parte motion to withdraw his guilty plea.

(Lodgment 1 at 38-41). The motion requested that his attorney, Mel Epley, be dismissed from the case. Id.

On March 13, 2009, the state court dismissed Epley and appointed the Office of the Alternate Public Defenders to represent Petitioner. (Lodgment 1 at 37).

On March 17, 2009, Albert Bradley, Petitioner's new attorney, filed a motion to withdraw Petitioner's guilty plea which stated: "[Petitioner] alleges that counsel failed to adequately communicate with him, failed to provide him with copies of the discovery, and that the Public Defender simply did not have the time to adequately represent him. Under the circumstances, the [Petitioner] did not receive adequate representation in such a serious matter. He should be allowed to withdraw his plea." (Lodgment 1 at 35-36).

On June 3, 2009, the California Superior Court, County of San Diego held an evidentiary hearing to consider Petitioner's motion to withdraw his plea. The Court denied the motion and sentenced him pursuant to his plea agreement. Petitioner was not advised of any appeal rights at the time of sentencing. Neither Petitioner nor his counsel filed a direct appeal.

On June 3, 2010, Petitioner filed a habeas corpus petition in California Superior Court, County of San Diego. (Lodgment 4). On July 20, 2010, the court denied the petition. (Lodgment 5).

On September 16, 2010, Petitioner filed a habeas corpus petition in the California Court of Appeal. (Lodgment 6). On November 2, 2010, the court denied the petition. (Lodgment 7).

On December 13, 2010, Petitioner filed a habeas corpus petition in the Supreme Court of California. (Lodgment 8). On June 8, 2011, the court summarily denied the petition. (Lodgment 9).

On July 1, 2011, Petitioner filed a Petition for Writ of Habeas Corpus ("Petition") pursuant to 28 U.S.C. § 2254 in this Court, challenging his conviction on the grounds that (1) he was unduly influenced by counsel to plead guilty; (2) he did not understand the charges to which he was pleading guilty; (3) the trial court erred in denying his Motion to Withdraw Guilty Plea; and (4) he received ineffective assistance of counsel because his attorney failed to file a notice of appeal. (ECF No. 1).

On November 30, 2011, Respondent filed an Answer contending that the state courts reasonably and properly denied each of Petitioner's claims. (ECF No. 12). On December 5, 2011, Petitioner filed a Traverse. (ECF No. 14).

On June 6, 2012, the Magistrate Judge issued a Report and Recommendation recommending that the Petition be denied. (ECF No. 15).

On July 13, 2012, Petitioner filed objections to the Report and Recommendation. (ECF No. 19). Petitioner objects to the Report and Recommendation on the grounds that: (1) "[t]he Magistrate erroneously reject[ed] Petitioner's claim that it was undue pressure from trial counsel that induced Petitioner to plead guilty and sign a stack of waivers ..." ; (2) "[t]he Magistrate err[ed] in speculating that [P]petitioner was fully able to comprehend exactly what he was intimidated into pleading to by Counsel, or just what the interpreter was actually saying to Petitioner"; (3) the Magistrate Judge failed to consider "a clause contained in the plea agreement/contract" that should have permitted Petitioner to change his plea; and, (4) the "Magistrate mistakenly [found] that Petitioner's trial Counsel had no duty to file a notice of Appeal on [Petitioner's] behalf." (ECF No. 19).

STANDARD OF REVIEW

The duties of the district court in connection with a Report and Recommendation of a Magistrate Judge are set forth in Federal Rule of Civil Procedure 72(b) and 28 U.S.C. § 636(b)(1). When a party objects to a Report and Recommendation, "[a] judge of the [district] court shall make a de novo determination of those portions of the [Report and Recommendation] to which objection is made." 28 U.S.C. § 636(b)(1). A district court may "accept, reject, or modify, in whole or in ...


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