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Duran v. Beard

United States District Court, S.D. California

April 21, 2015

JOSEPH ALFONSO DURAN, Petitioner,
v.
JEFFERY BEARD, Secretary of the California Department of Corrections and Rehabilitation, Respondent.

ORDER

WILLIAM Q. HAYES, District Judge.

The matter before the Court is the review of the Report and Recommendation (ECF No. 118) issued by United States Magistrate Judge Ruben B. Brooks, denying Petitioner Joseph Alfonso Duran's request for an evidentiary hearing (ECF No. 43) and recommending that this Court deny Petitioner's Amended Petition for Writ of Habeas Corpus (ECF No. 15).

BACKGROUND

In 2004, Petitioner was charged in San Diego County Superior Court with carjacking, robbery, the unlawful taking and driving of a vehicle, and buying, receiving, concealing, selling, or withholding a stolen vehicle. During the pendency of his case, Petitioner sought to represent himself. At a hearing on October 28, 2004, the trial court asked Petitioner to fill out an "Acknowledgment Concerning Right to Self-Representation" form pursuant to People v. Lopez, 71 Cal.App.3d 568 (1977).[1] (Lodgment No. 1 at 19). Paragraph two of the form identifies "[t]he maximum punishment(s) that can be imposed upon conviction for the offense(s)." Id. The first figure that appeared in paragraph two of the form was "9y." Id. The "9y" was crossed out and replaced with "18 years." Id. The "18" was crossed out and replaced with "20." Id. The final version, which Petitioner and the trial court signed, stated "20 years." Id.

On January 13, 2005, the prosecutor filed an amended information. On January 14, 2005, Petitioner was arraigned on the amended information. The prosecutor stated that he "discovered that Mr. Duran is not a second striker but a third striker." (Lodgment No. 24 at 2). The prosecutor also stated that Petitioner facing "perhaps 25 years to life on this case." Id. at 6.

Petitioner represented himself at trial. On February 4, 2005, the jury convicted Duran of carjacking, robbery, and the unlawful taking and driving of a vehicle. The jury found him not guilty of buying, receiving, concealing, selling, or withholding a stolen vehicle.

Petitioner admitted to convictions for assault with a deadly weapon on May 26, 1999, and theft of a firearm on March 1, 1991. Petitioner admitted to two strikes and two prison priors, including one violent prison prior. The trial court sentenced Petitioner to thirty-five years to life in state prison.

Petitioner appealed his conviction to the California Court of Appeal. On January 16, 2007, the Court of Appeal affirmed Petitioner's conviction. Petitioner filed a petition for review in the California Supreme Court. On March 30, 2007, the California Supreme Court summarily denied his petition.

On February 26, 2008, Petitioner filed a petition for writ of habeas corpus in the California Supreme Court. On October 16, 2008, the petition was summarily denied.

On March 6, 2008, Petitioner filed a Petition for Writ of Habeas Corpus in this Court pursuant to 28 U.S.C. section 2254. (ECF No. 1).

On December 9, 2008, Petitioner filed the First Amended Petition. (ECF No. 15). Petitioner asserts four grounds for relief. In ground one, Petitioner contended the prosecutor failed to disclose material, exculpatory evidence in violation of his discovery obligations, and the trial judge abused his discretion by denying Petitioner's motion for a new trial. In ground two, Petitioner contended that (a) the trial judge abused his discretion by failing to order a competency hearing or otherwise evaluate Petitioner's competency, and (b) Petitioner's waiver of the assistance of counsel was not knowing and voluntary because he was not informed of the maximum penalties he faced. In ground three, Petitioner contended that he received ineffective assistance of counsel prior to, and after, his self-representation, and that the trial court erred by failing to address his claim of ineffective assistance of counsel raised in his motion for a new trial. In ground four, Petitioner contended that the trial court improperly admitted evidence regarding the use of a firearm, after that allegation had previously been dismissed from counts one and two.

On March 25, 2009, Respondent filed an Answer. (ECF No. 24). On November 24, 2009, Petitioner filed a Traverse. (ECF No. 43). In the Traverse, Petitioner requested an evidentiary hearing.

On October 22, 2010, the Magistrate Judge issued a Report and Recommendation. (ECF No. 48). The Magistrate Judge recommended that (1) the First Amended Petition should be granted as to the claim that Petitioner did not knowingly and voluntarily waive his right to counsel under Faretta v. California, 422 U.S. 806 (1975); (2) the First Amended Petition should be denied as to all other claims; and (3) Petitioner's request for an evidentiary hearing should be denied.

On March 9, 2011, this Court adopted the Report and Recommendation (ECF No. 48) in its entirety. (ECF No. 53).

On April 4, 2011, Respondent Matthew Cate filed an appeal in the Court of Appeals for the Ninth Circuit. (ECF No. 55). On November 29, 2012, the Ninth Circuit issued an order vacating this Court's Order granting habeas relief and remanding the case for reconsideration of Petitioner's amended petition in light of arguments presented by Respondent for the first time at oral argument. (ECF No. 75). Specifically, the Ninth Circuit directed the Court to:

(1) consider "the state's new position that the state trial judge correctly advised Duran of his maximum punishment (20 years) at the time of the October 28, 2008 Faretta waiver";
(2) review "state court records regarding Duran's January 14, 2005 arraignment on the amended information";
(3) "make factual findings on the full extent of the advice that the state trial judge gave Duran regarding his rights during the January 14, 2005 arraignment, including (1)... the maximum punishment he faced upon conviction and (2) whether Duran was advised of his Sixth Amendment right to counsel"; and
(4) "issue a ruling on all of the claims in Duran's amended habeas petition, including Duran's Faretta claim."

Id.

On January 22, 2013, Respondent and Petitioner filed supplemental briefs. (ECF Nos. 76, 77).

On March 27, 2013, Respondent submitted a Second Supplemental Lodgment (ECF No. 86). On September 9, 2013, Petitioner filed Briefing in Response to Supplemental Lodging and Respondent's Brief re Further Proceedings. (ECF No. 99). On October 18, 2013, Respondent filed a Response Brief to Second Supplemental Lodgment and Further Proceedings. (ECF No. 103). On January 27, 2014, Petitioner filed a Reply to Respondent's Brief. (ECF No. 110). On February 10, 2014, the Court requested additional breifing from Respondent addressing the merits of the ineffective assistance of counsel claim raised by Petitioner (ECF No. 112). On February 25, 2014, Respondent Beard filed a response. (ECF No. 113). On March 8, 2014, Petitioner filed a reply. (ECF No. 116).

On October 29, 2014, United States Magistrate Judge Ruben B. Brooks, issued a Report and Recommendation. (ECF No. 118). The Magistrate Judge made factual findings that (1) Petitioner was informed at the January 14, 2005 arraignment that a second strike had been alleged and that he was facing at least twenty-five years to life in prison; (2) the state judge did not re-advise Petitioner of his right to counsel at the January 14, 2005 arraignment; and (3) the state trial judge urged Petitioner on multiple occasions to speak to his defense counsel in another criminal case and consider the cumulative effects of the choices he was making. The Magistrate Judge recommends that the Court deny Petitioner's first ground for habeas relief because there ...


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