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Nieto v. Swarthout

United States District Court, E.D. California

December 24, 2014

SANTOS GARCIA NIETO, Petitioner,
v.
GARY SWARTHOUT, Warden, Respondent.

FINDINGS AND RECOMMENDATION REGARDING PETITION FOR WRIT OF HABEAS CORPUS

STANLEY A. BOONE, 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. (Pet., ECF No. 1). Respondent is the Warden of California State Prison, Solano. He is represented in this action by Lewis Martinez, Esq., of the California Attorney General's Office.

I.

BACKGROUND

Petitioner is currently in the custody of the California Department of Corrections and Rehabilitation pursuant to a judgment of the Superior Court of California, Kings County, following his plea of nolo contendere and conviction on the following charges: one count of gross vehicular manslaughter while intoxicated (Cal Pen. Code § 191.5(a); Veh. Code § 23578); driving under the influence of alcohol and/or drugs with a blood-alcohol content of.15 percent or higher and causing great bodily injury or death (Cal Pen. Code § 12022.7(a); Veh. Code § 23153(a), § 23558, § 23578); one count of driving under the influence of alcohol and/or drugs with a blood-alcohol content equal to or greater than.08 percent and causing great bodily injury or death (Cal Pen. Code § 12022.7(a); Veh. Code § 23153(b), § 23558, § 23578); and one count of driving on the wrong side of the roadway (Cal Veh. Code § 21650). (Pet., Ex. A.) On September 26, 2011, he was sentenced to serve a total term of 16 years 8 months in prison. (Id.)

Petitioner timely filed a notice of appeal. Petitioner's appeal was denied on January 14, 2013. (LD[1] 11). On July 17, 2013, Petitioner filed a petition for writ of habeas corpus in the Kings County Superior Court. (LD 12). The petition was denied on September 12, 2013. (LD 13). On October 8, 2013, Petitioner filed a petition for writ of habeas corpus in the California Court of Appeal, which was denied on November 21, 2013. (LDs 14 and 15). On December 6, 2013, Petitioner filed a petition for writ of habeas corpus in the California Supreme Court. (LD 16). The petition was denied on February 19, 2014. (LD 17).

Petitioner filed the instant federal petition for writ of habeas corpus on April 4, 2014. (ECF No. 1). Respondent filed an answer to the petition on July 9, 2014. (ECF No. 19). Petitioner filed a traverse on August 13, 2014. (ECF No. 21).

II.

STATEMENT OF FACTS[2]

On the afternoon of April 24, 2010, Kings County Deputy Sheriff Samuel Weimer responded to the scene of a fatal vehicular accident near Highway 269 and Interstate Freeway 5. A white Chevrolet Avalanche and a Ford Cobra Coupe were involved in the accident. Deputy Weimer and other officers determined that appellant was driving the Avalanche southbound on Highway 269 and Jack Bolding was driving the Cobra northbound on the same roadway. Appellant veered on the roadway on the west side and caused the Avalanche to straddle the raised asphalt. He attempted to steer his vehicle back onto the roadway and over steered in an attempt to get the Avalanche over the raised curb. Because of the over steering, the Avalanche went into an uncontrolled skid and traveled into oncoming northbound traffic. The Avalanche struck Bolding's Cobra head-on in the northbound lane.
American Ambulance personnel found appellant face down on the ground behind the Avalanche. He was transported to Fresno Regional Community Medical Center by helicopter. Weimer noticed open beer cans in the back of the Avalanche and a few more open cans on the roadway and in the dirt next to the roadway. Officers found Bolding deceased in the front driver's seat of the Cobra. His body had sustained multiple injuries and was slumped over toward the passenger side of the front seat. Officials later determined that Bolding died from blunt force trauma.
Weimer contacted a second victim, Ramon Fuerte, who was a passenger in the Avalanche. Fuerte emitted a strong odor of alcohol, had bloodshot, watery eyes, and appeared to be intoxicated. Fuerte said he was asleep at the time of the collision and did not know what had happened. Fuerte said he and defendant were returning from Kettleman City. In response to questioning by Weimer, Fuerte said appellant had been drinking constantly since the preceding day. Fuerte had a small laceration on the right side of his face directly behind his eye. He also had a laceration on his left forearm but declined medical attention.
Emergency medical technician J. Mazzaserro arrived at the scene with her partner, J. Price, shortly after the collision occurred. Upon arrival, she provided assistance to the occupants of the Cobra. Mazzaserro declared Bolding deceased at 4:01 p.m. Price checked on the passengers of both vehicles and determined that Jamee Bolding, the passenger in the Cobra, needed more medical attention than the others. According to Mazzaserro, Jamee Lynn Bolding was not breathing, but she did have a pulse when paramedics arrived. Mazzaserro performed several life support and first aid procedures on Jamee Bolding, who was eventually airlifted to Fresno Community Regional Medical Center.
At 6:32 p.m., Weimer contacted appellant at the hospital. An attending physician advised Weimer that appellant has sustained a broken left arm and some minor scrapes on his chest and stomach area. Hospital staff also informed Weimer that appellant was still intoxicated. When Weimer finally spoke with appellant, he could smell a strong odor of alcohol. Appellant's eyes were bloodshot and watery, and his speech was slurred. Appellant initially said he could not remember anything about the collision. He eventually said that Jack Bolding pulled into his lane, and he could not miss him. When Weimer asked about his alcohol consumption before the collision, appellant said he had consumed about three beers but could not remember any other details. Hospital personnel took a blood sample from appellant at about 7:19 p.m. and it yielded a blood-alcohol content of 0.25 percent.
On the morning of April 27, 2010, Deputy Sheriff Perla Trejo contacted appellant at the medical center. Appellant reported that he was traveling southbound on Highway 269 at 3:00 p.m. on the day of the collision. Appellant said he and Fuerte were on their way home from picking onions in the Huron area. Appellant said he had one or two beers around noon but did not have anything to eat. Appellant claimed he could not drink heavily because he suffered from diabetes and leukemia. Appellant said he was traveling 55 miles per hour when he saw a car move into his lane at a much faster speed. Appellant said he swerved to the left to avoid a head-on collision. Appellant told Trejo, "If I didn't move, he would've hit me.'" Appellant said everything happened so fast that he did not remember any details about the other car. According to appellant, the damage to his vehicle was on the front passenger side because he turned to the left to avoid the collision.
Appellant said he was ejected from his vehicle and believed the injury to his shoulder occurred when his shoulder hit the steering wheel at the time of ejection. Upon further questioning by Trejo, appellant said he was wearing his seatbelt but removed it when he got out of the vehicle. Appellant said he was very weak and unable to stand up at the time he got out of the vehicle. He claimed that he has a clear mind and had not consumed anything to impair his driving. Appellant admitted there was some alcohol in his system but maintained it was not enough to impair him. Appellant also said that he and Fuerte were collecting cans and that is why there were beer cans in his vehicle.
The following day, Trejo contacted Fuerte at his residence. Fuerte said appellant stopped by his home on the morning of April 24, 2010, and invited him to join him on a trip to Huron to pick up his paycheck. Fuerte said he had a beer before appellant picked him up but claimed that appellant was not intoxicated and that he, Fuerte, felt safe enough to get into appellant's vehicle. Contrary to his earlier statements to Weimer, Fuerte said appellant may have consumed one beer before arriving at Fuerte's home. After the pair picked up the paycheck, they went to the Huron home of appellant's cousin and appellant drank a 12-ounce can of Coors Light beer. Appellant and Fuerte spent about one hour in Huron, and then they drove back home. On their way home, Fuerte fell in and out of sleep. At one point, Fuerte heard appellant say, "A car keeps crossing into our lane.'" Shortly after the collision occurred, Fuerte confirmed that he was wearing his seatbelt but did not know whether appellant was wearing his. Fuerte did not believe that appellant was under the influence at the time of the collision. Trejo sought clarification of Fuerte's statement about appellant drinking "constantly." Fuerte explained that appellant was known to drink daily and to consume a beer and drive home after visiting with Fuerte. Trejo said appellant's drinking had become a problem with friends to the point where some friends would not invite him over any longer.
On March 24, 2011, Weimer contact Ellen Bolding, the mother of Jamee Lynn Bolding. Ellen reported that her daughter suffered two skull fractures, a crushed left cheekbone, a broken left jaw, damage to two front teeth, a broken collarbone, the removal of her left kidney, an injury to lower back vertebrae which required Jamee to wear a back brace for 45 days, two broken arms, two broken legs, and double vision.

III.

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