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Orozco v. Harrington

United States District Court, Ninth Circuit

May 31, 2013

VALDO C. OROZCO, Petitioner,
v.
KELLY HARRINGTON, Warden, Respondent.

ORDER DENYING PETITION FOR WRIT OF HABEAS CORPUS AND DECLINING TO ISSUE CERTIFICATE OF APPEALABILITY (Doc.26)

MICHAEL J. SENG, Magistrate Judge.

Petitioner is a state prisoner proceeding pro se with a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254. Respondent is represented by David Eldridge of the office of the California Attorney General. Both parties have consented to Magistrate Judge jurisdiction under 28 U.S.C. § 636(c). (ECF Nos. 5, 11.)

I. PROCEDURAL BACKGROUND

Petitioner is currently in the custody of the California Department of Corrections pursuant to a judgment of the Superior Court of California, County of Kings, following his conviction by jury trial on July 7, 2008, of transportation and possession of heroin. (Lodged Doc. 1.) The trial court also found true enhancements and sentenced Petitioner to serve a determinate term of twelve (12) years. (Id.)

Petitioner filed a direct appeal with the California Court of Appeal, Fifth Appellate District, which was denied on July 22, 2009. (Lodged Doc. 2.) On August 31, 2009, Petitioner filed a petition for review with the California Supreme Court. (Lodged Doc. 3.) The petition was summarily denied on October 14, 2009. (Lodged Doc. 4.)

Petitioner filed the instant federal habeas petition on September 3, 2010. (Pet., ECF No. 1.) He subsequently filed a first and second amended petition. The second amended petition then is the operative petition, and it raises the following three claims for relief:

1.) There was insufficient evidence to support Petitioners guilty plea;

2.) In violation of federal law, Petitioner received no benefit from taking the plea offer; and

3.) Plaintiffs counsel was Ineffective (based on counsels inadequate investigation and allowing Petitioner to plead guilty).

(Pet. at 13-24.)

Respondent filed an answer to the petition on December 19, 2011, and Petitioner filed a traverse on February 8, 2012. (Answer & Traverse, ECF Nos. 26, 31.)

II. STATEMENT OF THE FACTS[1]

On April 11, 2008, at approximately 10:30 a.m., Officer Herlinda Rodriguez turned on her overhead lights to stop a car driven by appellant, Valdo Cantu Orozco, Jr., for failing to stop at a stop sign. The car did not stop and Rodriguez activated her siren. The car continued until it turned into a residential driveway and stopped. Codefendant, Ramon Gloria, got out of the car, looked at Rodriguez, and ran to the backyard. Gloria soon came out of the backyard, and he and Orozco began asking Rodriguez why she stopped them.
After a backup unit arrived, Rodriguez went to the backyard where Gloria had gone and found a plastic container with a syringe inside. Officer Pedro Castro searched Orozco's car and found several syringes, a small plastic bag containing a brown powdery substance, several cotton swabs, a spoon, and a lighter. Orozco and Gloria exhibited signs of being under the influence of heroin and refused to provide a urine sample at the jail.
On April 29, 2008, the court denied Orozco's Marsden motion.
On May 12, 2008, the district attorney filed an information charging Orozco and codefendant Gloria with transportation of heroin (count 1/Health & Saf. Code, § 11352, subd. (a)), possession of heroin (count 2/Health & Saf. Code, § 11350, subd. (a)), resisting arrest (count 3/Pen. Code, § 148, subd. (a)(1)), and possession of drug paraphernalia (count 4/Health & Saf. Code, § 11364). The information also charged Orozco with evading a police officer (count 5/Veh. Code, § 2800.1, subd. (a)), driving while his driving privilege was suspended (count 6/Veh. Code, § 14601.2, subd. (a)), two prior prison term enhancements (Pen. Code, § 667.5, subd. (b)) and two prior convictions within the meaning of the three strikes law.
On July 7, 2008, the prosecutor dismissed one of the alleged prior strike convictions and Orozco pled guilty to all counts and admitted the prior prison term enhancements and the remaining three strikes law allegation. After Orozco waived a probation report, the court sentenced him to a 12-year term, the aggravated term of five years on his transportation of heroin conviction, doubled to ten years because of Orozco's prior strike conviction, two one-year prior prison term enhancements, and stayed or concurrent terms on the remaining counts.

People v. Orozco, 2009 Cal.App. Unpub. LEXIS 5997, 1-3, 2009 WL 2181755 (Cal. App., July 22, 2009).

II. DISCUSSION

A. Jurisdiction

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

B. Legal Standard of Review

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, 326 (1997); Jeffries v. Wood , 114 F.3d 1484, 1499 (9th Cir. 1997). The instant petition was filed after the enactment of the AEDPA; thus, it is governed by its provisions.

Under AEDPA, an application for a writ of habeas corpus by a person in custody under a judgment of a state court may be granted only for violations of the Constitution or laws of the United States. 28 U.S.C. § 2254(a); Williams v. Taylor , 529 U.S. at 375 n. 7 (2000). Federal habeas corpus relief is available for any claim decided on the merits in state court proceedings if the state court's 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.

28 U.S.C. § 2254(d).

1. Contrary to or an Unreasonable Application of Federal Law

A state court decision is "contrary to" federal law if it "applies a rule that contradicts governing law set forth in [Supreme Court] cases" or "confronts a set of facts that are materially indistinguishable from" a Supreme Court case, yet reaches a different result." Brown v. Payton , 544 U.S. 133, 141 (2005) citing Williams , 529 U.S. at 405-06. "AEDPA does not require state and federal courts to wait for some nearly identical factual pattern before a legal rule must be applied.... The statue recognizes... that even a general standard may be applied in an unreasonable manner" Panetti v. Quarterman , 551 U.S. 930, 953 (2007) (citations and quotation marks omitted). The "clearly established Federal law" requirement "does not demand more than a 2017principle' or 2017general standard.'" Musladin v. Lamarque , 555 F.3d 830, 839 (2009). For a state decision to be an unreasonable application of clearly established federal law under § 2254(d)(1), the Supreme Court's prior decisions must provide a governing legal principle (or principles) to the issue before the state court. Lockyer v. Andrade , 538 U.S. 63, 70-71 (2003). A state court decision will involve an "unreasonable application of" federal law only if it is "objectively unreasonable." Id. at 75-76, quoting Williams , 529 U.S. at 409-10; Woodford v. Visciotti , 537 U.S. 19, 24-25 (2002). In Harrington v. Richter , the Court further stresses that "an unreasonable application of federal law is different from an incorrect application of federal law." 131 S.Ct. 770, 785 (2011), (citing Williams , 529 U.S. at 410) (emphasis in original). "A state court's determination that a claim lacks merit precludes federal habeas relief so long as 2017fairminded jurists could disagree' on the correctness of the state court's decision." Id. at 786 (citing Yarborough v. Alvarado , 541 U.S. ...


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