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Victor Gudino v. K. Allison

March 27, 2013

VICTOR GUDINO, PETITIONER,
v.
K. ALLISON, WARDEN, RESPONDENT.



The opinion of the court was delivered by: Jennifer L. Thurston United States Magistrate Judge

FINDINGS AND RECOMMENDATIONS TO DENY PETITION FOR WRIT OF HABEAS CORPUS (Doc. 1) ORDER DIRECTING THAT OBJECTIONS BE FILED WITHIN TWENTY DAYS

Petitioner is a state prisoner proceeding pro se with a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254.

PROCEDURAL HISTORY

Petitioner is in custody of the California Department of Corrections and Rehabilitation ("CDCR") serving an indeterminate sentence of 25 years-to-life pursuant to a judgment of the Superior Court of California, County of Kings (the "Superior Court"). On December 19, 2007, Petitioner was convicted by jury trial of possessing a sharp instrument while confined in a penal institution. (Cal. Pen. Code § 4502(a)). (Clerk's Transcript on Appeal ("CT"), p. 194). The jury also found that Petitioner had suffered two prior "serious" or "violent" felonies that qualified as strikes under California's "Three Strikes" law (Cal. Pen. Code §§ 667(d) & (e)). (CT 194).] Petitioner was sentenced to an indeterminate term of 25 years-to-life, to be served consecutive to the term he was already serving for an unrelated conviction. (Doc. 11, Lodged Documents ("LD") 4, p. 2).

Petitioner subsequently filed a direct appeal in the California Court of Appeals, Fifth Appellate District (the "5th DCA"). On September 26, 2008, the 5th DCA, in an unpublished decision, affirmed 3 Petitioner's conviction. (LD 4). On December 10, 2008, the state Supreme Court denied Petitioner's 4 petition for review. (LD 5, 6). 5

On September 23, 2009, Petitioner filed a state habeas corpus petition in the Kings County Superior Court, which was denied on November 24, 2009. (LD 7, 8). On March 5, 2010, Petitioner 7 filed a state habeas petition in the 5th DCA, which denied the petition on March 18, 2010. (LD 9, 10). 8

On April 1, 2010, Petitioner filed a Petition for Review in the California Supreme Court, which was 9 denied on June 17, 2010. (LD 11, 12).

On July 22, 2010, Petitioner filed the instant petition, raising eight grounds for relief. (Doc. 1). Respondent filed an answer on October 6, 2010. (Doc. 10). On November 8, 2010, Petitioner filed his Traverse. (Doc. 14). Respondent concedes that the all grounds for relief in the petition have been fully exhausted. (Doc. 10, p. 3).

FACTUAL BACKGROUND

The Court adopts the Statement of Facts in the 5th DCA's unpublished decision:

At 5:50 a.m. on September 15, 2006, correctional officer Enrique Chavez of Corcoran State Prison was in his office when he heard a door banging and someone calling for an officer. Chavez could tell the noise came from B section and followed the sound to cell 34. Through a small side window, Chavez saw Jaime Cuevas and Gudino standing next to their bunks. Cuevas was distressed, breathing heavily and seemed frightened.

Cuevas told Chavez there was a misunderstanding and everything was fine. Gudino appeared calm. Chavez did not notice any injuries. Cuevas told Chavez that he needed to come out of the cell. As Chavez went downstairs to retrieve a key from the key booth operator, he heard a commotion and banging like two inmates fighting and ran back to the cell.

When Chavez looked back into the same cell, the lights were off and he could not see anything. Chavez pulled out a flashlight and saw Cuevas and Gudino facing each other throwing punches to their faces, upper torsos, and chests. Chavez ordered them to stop fighting before spraying both inmates with pepper spray.

Chavez did not initially see any weapons. After Gudino turned on the lights, Chavez could see that Cuevas had red marks on his face and chest and a laceration on his chest down to his stomach. Cuevas had a lot of blood on his chest and shoulder. Gudino and Cuevas were then placed in handcuffs. The laceration on Cuevas's chest was between 20 and 24 inches long. Cuevas was taken to a prison hospital.

Cuevas had convictions for assault, carjacking, and second degree robbery. Gudino was Cuevas's cellmate at Corcoran. The morning of the attack, Cuevas was awakened by a bad burning pain in his back. When Cuevas awoke, he saw Gudino who started swinging at Cuevas. Gudino was holding a sock full of soap and a blade. The blade was the kind used for shaving and Cuevas remembered it had a handle.

Cuevas began calling and screaming for help. Cuevas was bleeding from his stomach. Cuevas told the correctional officer that he had to get out of the cell. The correctional officer left for a few minutes before returning. Cuevas argued with Gudino, who rushed Cuevas attempting to 6 cut him up more. Cuevas was trying to get away from Gudino who still had the blade. The correctional officer pepper sprayed Cuevas and Gudino when he returned. Cuevas had seen the blade before under his own mattress but denied that it belonged to him. Cuevas acknowledged 7 8 he did not initially tell authorities that he saw a blade because he was scared.

In September 2006, Cuevas was taking medication for psychological problems. Cuevas was going to the psychiatric facility in Corcoran after the incident. Cuevas said he had never been found incompetent to stand trial. Cuevas wanted to change cells because Gudino would boss him around and made Cuevas feel disrespected. Gudino would whisper into Cuevas's ear. Before the incident, Cuevas had a feeling something was going to happen.

Cuevas was cut on his shoulders, back, stomach, and chest. Cuevas received 10 to 20 stitches on his back and about 20 stitches on his stomach. Cuevas saw Gudino flush the blade down the toilet.

Matthew H. Bejarano, Jr., is a correctional officer with the prison's Investigative Services Unit and is responsible for investigating crimes within the prison. Bejarano watched Cuevas being removed by gurney after the attack. Bejarano took photographs of Gudino and then of the cell area. The photographs depicted blood stains on the wall, showing a possible struggle. There were blood stains on a shirt, above Gudino's bunk, on Cuevas's bed sheets, and at the foot of Cuevas's bed.

Robert Adame, another investigating officer, collected a white sock containing a bar of soap from the cell. Medical Technical Assistant Rolando Pobleto, LVN, examined Cuevas's injuries. Cuevas was bleeding profusely so Pobleto called an ambulance. Pobleto believed the injuries were caused by a sharp object. Pobleto also examined Gudino that day. Gudino had superficial scratches and a cut lip.

David Ruiz, a correctional lieutenant, inspected Gudino's hands and saw cut marks on the inside of his hands consistent with having a blade used to slash or stab. Because inmate weapons do not have stops, when they are used the inmate's hand will slip up the blade and the inmate will cut himself. When Ruiz observed Cuevas's injuries, it was clear, given the length of the wound, that Cuevas had suffered deliberate slashing. There were multiple slashes made over and over again in one area. Ruiz described the attack as "real violent."

Gudino had packaged up his personal property in preparation for a cell search. A bloody sheet had been folded. Based on his observations of the cell and the inmates, Ruiz identified Gudino as the suspect and Cuevas as the victim. Gudino could have suffered injuries to his hands if he was holding a weapon to defend himself or to be aggressive.

Ruiz believed Gudino initially attacked Cuevas by slashing his back. Ruiz explained that there was a sock found in the cell that was tied up in a knot and state-issued soap caked up together.

Soap placed in the sock can be used as a sling with which an inmate can hit others. Ruiz testified that soap in the sock could be used as a weapon, a sling or a slungshot. The slungshot is usually made with hardened pieces of soap inside a sock. This type of weapon causes serious bruising and injury. Gudino did not have any bruising on his body. The jury was shown 6 photographs taken of Gudino after the fight. Ruiz explained that an injury on Gudino's cheek was likely made by a fist.

The day before the fight, Gudino told Correctional Officer Baer that he had no problems with his cellmate. Baer talked to Cuevas who said he had no safety concerns. The two convinced 9 Baer there were no problems, though Cuevas preferred to be moved into a section with some "homies."

Gudino testified that he shared a cell with Cuevas for 10 or 11 days prior to the fight. The two agreed to be cellmates. Gudino, however, described Cuevas as "fucked up." Casual conversation upset Cuevas. Cuevas accused Gudino of whispering into his ear. Gudino asked Cuevas what was wrong with him. Gudino asked Cuevas if he needed medication and told him to take his medication because Cuevas was under the impression he could not take it.

On the morning of September 15, 2006, Gudino woke up, washed up, and put his things away. Gudino told Cuevas to go ahead, meaning he could use the facilities. Gudino said that Cuevas jumped out of bed and attacked him, hitting him several times using the sock later found on the cell floor. The two men exchanged blows. Cuevas threw Gudino's television at Gudino. It was then that the correctional officer came to the cell door.

Gudino was trying to wash his face after the correctional officer initially left. Cuevas was digging in his bed. The two struggled, ending up by the door. Gudino grabbed Cuevas and then saw a small blade in Cuevas's hand. Cuevas dropped the blade and Gudino picked it up. Cuevas quickly grabbed Gudino. Cuevas still had a hold on Gudino. Gudino reached up and cut Cuevas who was still fighting. As soon as he was free of Cuevas, Gudino threw the blade down. The two men continued to fight until the officer returned and pepper sprayed them. During cross-examination, Gudino said he picked up the blade because he was in fear of his life. Gudino further admitted he cut Cuevas with the blade. Gudino asserted that he just threw the blade to the ground. Gudino denied flushing the blade down the toilet.

(LD 4, pp. 2-6).

DISCUSSION

I. Jurisdiction

Relief by way of a petition for writ of habeas corpus extends to a person in custody pursuant to 3 4 the judgment of a state court if the custody is in violation of the Constitution, laws, or treaties of the 5 United States. 28 U.S.C. § 2254(a); 28 U.S.C. § 2241(c)(3); Williams v. Taylor, 529 U.S. 362, 375 n. 6 7 (2000). Petitioner asserts that he suffered violations of his rights as guaranteed by the United States 7 Constitution. The challenged conviction arises out of the Kings County Superior Court, which is 8 located within the jurisdiction of this court. 28 U.S.C. § 2254(a); 28 U.S.C.§ 2241(d). 9

On April 24, 1996, Congress enacted the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"), which applies to all petitions for writ of habeas corpus filed after its enactment. Lindh v. Murphy, 521 U.S. 320 (1997), cert. denied, 522 U.S. 1008, 118 S.Ct. 586 (1997); Jeffries v. Wood, 114 F.3d 1484, 1500 (9th Cir. 1997), cert. denied, 520 U.S. 1107 (1997), overruled on other grounds by Lindh v. Murphy, 521 U.S. 320 (holding the AEDPA only applicable to cases filed after statute's enactment). The instant petition was filed after the enactment of the AEDPA and is therefore governed by its provisions.

II. Legal Standard of Review

A petition for writ of habeas corpus under 28 U.S.C. § 2254(d) will not be granted unless he can show that the state court's adjudication of his 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 ...


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