United States District Court, N.D. California
ORDER DENYING PETITION FOR WRIT OF HABEAS CORPUS; DENYING CERTIFICATE OF APPEALABILITY
EDWARD J. DAVILA, District Judge.
Petitioner has filed a pro se petition for a writ of habeas corpus under 28 U.S.C. § 2254 challenging his state conviction. The Court ordered Respondent to show cause as to why the petition should not be granted. Respondent filed an answer, and Petitioner did not file a traverse although given an opportunity to do so. For the reasons set forth below, the Petition for a Writ of Habeas Corpus is DENIED.
Petitioner and codefendant Norman Hansen entered a plea agreement in Santa Clara County Superior Court for multiple counts arising from their fraudulent operation of three travel agencies. On November 10, 2010, the California Court of Appeal affirmed Petitioner's judgment, (Ans. Ex. 8), and on December 13, 2010, denied a petition for rehearing, (Id., Ex. 10). The California Supreme Court denied a petition for review on March 16, 2011. (Id., Exs. 11-13.)
Petitioner filed the instant federal habeas petition on March 5, 2012.
The California Court of Appeal set forth the following facts:
On April 25, 2008, defendants were charged by information with embezzlement by trustees ([Pen. Code] § 506, count 1); nine counts of failure to provide travel services or make refunds (Bus. & Prof. Code, § 17550.14, subd. (a)(1), counts 2, 4, 5, 6, 8, 11, 12, 13, 14); three counts of theft or embezzlement from an elder or dependent adult (§ 368, subd. (d), counts 3, 7, 9); writing a check with insufficient funds (§ 476a, count 10); unlawful encumbrance of a trust account by a "seller of travel" (Bus. & Prof. Code, § 17550.15, subd. (c), count 15); two counts of money laundering of more than $5, 000 (§ 186.10, subd. (a), counts 16, 17), and thefts of funds received as insurance premium (Ins. Code, § 1733, count 18). Hansen was additionally charged with presenting a false insurance claim (§ 550, subd. (a)(1), count 19).
The information further alleged that Hansen had suffered a strike prior conviction. (§§ 667, subds. (b)-(c), 1170.12.) As to the embezzlement count, the information alleged that defendants took property with a value exceeding $1 million (§ 12022.6, subd. (a)(3)), and with respect to the nine counts of failure to provide travel services or refunds that each defendant obtained $1, 000 or more within a consecutive 12 month period from all persons, and $400 or more from one person in a 12 month period (Bus. & Prof. Code, § 17550.19, subd. (b)). The information also alleged an aggravated white collar crime enhancement (§ 186.11, subd. (a)(1), (2)) on the basis that the crimes involved a pattern of felony conduct resulting in the taking of more than $500, 000.
On May 6, 2008, defendants pleaded guilty to counts 1, 2, 4, 5, 6, 8, and 10 through 16. They also admitted the allegations pursuant to section 12022.6, subdivision (a)(3) and Business and Professions Code section 17550.19, subdivision (b). Hansen admitted having a felony strike prior conviction. All remaining counts and enhancements were dismissed. Maloof was advised that he could be sentenced to a maximum term of 14 years. Hansen was advised that he faced a maximum term of 28 years in prison unless [h]is Romero  motion was granted, in which case his maximum sentence would be 14 years.
Hansen's Romero motion was granted, and on December 10, 2008, defendants were each sentenced to a total prison term of 13 years.
Maloof and Hansen owned and operated, were employed by, and/or purchased three related travel agencies: JM Travel Selections (TS), based in Santa Clara County; ITS International Tours (ITS), based in Louisiana; and International Grand Tours (IGT), based in Santa Clara County. From 2003 through 2005, defendants received payment[s] from a number of victims totaling in excess of $1.2 million for travel services, mostly involving group travel for schoolchildren and religious pilgrimages. The defendants failed to provide the arranged and paid for travel services, and failed to refund the monies paid.
During the course of their operations, the defendants repeatedly used funds received from clients to meet other unrelated financial obligations, and would attempt to delay the purchase of travel services until a later group of victims could submit payment for an unrelated travel service. The funds deposited by victims were transferred out of the travel agencies' accounts for numerous reasons, including but not limited to the following: paying outstanding debts to other creditors; deposits into the defendants' personal accounts; purchasing and paying off the debt on personal vehicles, such as Toyota Celica purchased by Maloof's daughter; purchasing meals and day-to-day necessities; and purchasing travel services for defendants' family, friends and associates, such as a cruise for Hansen's wife and a number of TS employees. Defendants also laundered funds from one company to another, using personal accounts and numerous banks to transfer the funds. They also charged some of their victims for travel insurance, but failed to purchase any such insurance. Because the defendants had "a fiduciary responsibility with respect to all sums received for transportation or travel services" under Business and Professions Code section 17550.15, subdivision (g), their use of the victims' funds for unrelated expenses and outstanding debts constituted embezzlement.
As the amount of money defendants owed grew, their scheme broke down, as they no longer had enough money on hand to purchase the travel services for which they had received payment. At that point, defendants began adding fraudulent surcharges to their bills in an attempt to increase their cash flow. These surcharges included extra fees for "currency fluctuations, " despite there being no such fluctuations, as well as "air taxes" and "fuel surcharges" supposedly imposed by the airlines, even though no airline tickets were purchased.
In all, more than 600 individual victims were harmed by defendants' actions. Defendants failed to provide travel services paid for, failed to honor requests for refunds or provide refunds within the time provided by law after cancelling trips or allowing scheduled departure dates to lapse. On numerous occasions, defendants would send refund checks to victims, knowing that there were insufficient funds to cover the checks, which would subsequently bounce.
During the investigation into defendants' actions, Hansen left the country for approximately 15 months, without informing his wife and three young children of his whereabouts. Hansen claimed that he was on "sabbatical, " and that he "sail[ed] around the Mediterranean Sea in a sailboat he owns." When the probation officer asked how Hansen managed to do this considering he had declared bankruptcy and had lost all of his investments, Hansen replied that he had purchased the 27-foot sailboat for $10, 000 and "slept and cooked on the boat, so the cost for the trip was minimal."
In his interview with the probation department, Maloof submitted a lengthy written statement in which he blamed Hansen, who he ...