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Armando Samuel Cordova v. Domingo Uribe

March 20, 2013

ARMANDO SAMUEL CORDOVA,
PLAINTIFF,
v.
DOMINGO URIBE, JR., WARDEN, ET AL., DEFENDANT.



The opinion of the court was delivered by: Honorable Larry Alan Burns United States District Judge

ORDER DENYING PETITION FOR WRIT OF HABEAS CORPUS;

AND

ORDER DENYING AS MOOT MOTIONS TO EXPEDITE AND TO APPOINT COUNSEL

Petitioner Armondo Samuel Cordova was convicted in California state court of two counts of second degree murder, one count of attempted voluntary manslaughter, and two counts of assault with a firearm, and he was sentenced to 107 years to life, plus ten years in state prison. After denial of his direct appeals in state court, Cordova filed his petition in this Court. The petition was referred to Magistrate Judge Anthony Battaglia for report and recommendation pursuant to 28 U.S.C. § 636. Judge Battaglia, based on the parties' answer, traverse, and response to the petition, issued his report and recommendation (the "R&R," Docket no. 20), recommending denial of the petition. Cordova filed objections to the R&R.

I. Legal Standards

A district court has jurisdiction to review a Magistrate Judge's report and recommendation on dispositive matters. Fed. R. Civ. P. 72(b). "The district judge must determine de novo any part of the magistrate judge's disposition that has been properly objected to." Id. "A judge of the court 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). The Court reviews de novo those portions of the R&R to which specific written objection is made. United States v. Reyna-Tapia, 328 F.3d 1114, 1121 (9th Cir. 2003) (en banc). "The statute makes it clear that the district judge must review the magistrate judge's findings and recommendations de novo if objection is made, but not otherwise." Id.

Under 42 U.S.C. § 2254, state courts are intended to be the principal forum for litigating constitutional challenges to state convictions. Harrington v. Richter, 131 S.Ct. 770, 787 (2011). "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." Id. at 778 (quoting Yarborough v. Alvarado, 541 U.S. 652, 664 (2004)). Federal habeas review is a " 'guard against extreme malfunctions in the state criminal justice systems,' not a substitute for ordinary error correction through appeal." Id. at 786 (quoting Jackson v. Virginia, 443 U.S. 307, 332 n. 5 (1979) (Stevens, J., concurring in judgment)).

A federal writ of habeas corpus is not available to correct errors of state law. Swarthout v. Cooke, 131 S.Ct. 859, 861 (2011). And an error of state law is not a denial of due process. Id. at 863 (citation omitted).

II. Discussion

Cordova agrees that the R&R's recitation of facts and procedural history is correct. (Obj. to R&R, 1:25--28.) He instead focuses on legal arguments, reiterating arguments he raised in state court and in his petition. The Court therefore ADOPTS the R&R's factual and procedural recitations and does not repeat them here except as needed when referring to them.

The bone of contention is a corrected instruction the trial court gave jurors after they were already deliberating. Cordova argues, as he did in state court, that the original instruction was correct and that the new instruction misstated state law, and allowed jurors to convict him of second degree murder even if there was reasonable doubt about whether he was unconscious because he was in an alcoholic blackout.

A. When the Jury Convicted Cordova

Cordova argues that the jury acquitted him of first degree murder but convicted him of second degree murder for the killing of Kristopher Ebbert. (Obj. to R&R at 3:1--4.) His objections say that the conviction took place on March 12, implying that the trial court, after hearing the verdict, decided to reinstruct the jury. Cordova has misread the record, however. The jury did not convict him March 12, but on March 14, after being reinstructed.

Cordova cites a verdict form dated March 12, 2007 but recorded on March 14, 2007. (Lodgment 2 at 289.) The jury apparently finished deliberating on that count on March 12, the foreperson completed the form on that date, and the jury went on to deliberate on other counts. But the record is clear that all verdicts including the one Cordova now points out were ...


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