United States District Court, E.D. California
FINDINGS AND RECOMMENDATIONS
GREGORY G. HOLLOWS, Magistrate Judge.
INTRODUCTION AND SUMMARY
Petitioner is a state prisoner proceeding pro se with a petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. A jury found petitioner guilty of second degree robbery and found true the sentencing enhancement of personal use of a firearm. Petitioner was sentenced to state prison for a term of 13 years. He originally challenged his conviction on the following grounds: 1) denial of counsel on direct appeal; 2) ineffective assistance of counsel on direct appeal; 3) insufficient evidence; 4) denial of counsel during a new trial motion; 5) double jeopardy; and 6) ineffective assistance of counsel for failure investigate and challenge the prosecution's claim that evidence submitted in petitioner's second trial was "new."
Respondent moved to dismiss the petition because claims two through five were unexhausted. ECF No. 13. The court subsequently ordered petitioner to either file a motion to stay the petition to exhaust his claims or file an amended petition containing only the exhausted claim, warning petitioner that failure to respond may result in a recommendation that the unexhausted claims be dismissed. ECF No. 17. Petitioner failed to respond to the court's order and the court dismissed petitioner's unexhausted claims, claims two through five. ECF No. 21. As such, the undersigned addresses only claim one below.
Upon careful consideration of the record and the applicable law, the undersigned recommends that petitioner's application for habeas corpus relief be denied.
In its unpublished memorandum and opinion affirming petitioner's judgment of conviction on appeal, the California Court of Appeal for the Third Appellate District provided the following factual summary:
On December 19, 2008, Kathy Groth and Priscilla Dixon were working at a JoAnne's store in Woodland when a man walked in and asked directions on how to get on the freeway. The man later returned to the store, picked up a roll of wrapping paper, and told Groth he wanted to buy it.
Dixon waited on the man at her cash register. After she rang up the purchase, the man said, "this is a robbery." Dixon told the man he must be kidding; he told her that he was not, pulled a gun out of his left coat pocket, and showed it to her. After Dixon complied with defendant's demand, defendant ran out of the store. About $150 was taken that night.
Numerous latent fingerprints were found on the wrapping paper roll. Ten of the prints belonged to defendant Anthony Urbano.
Dixon identified defendant as the perpetrator at a photographic lineup but Groth was not able to identify a perpetrator in the lineup. At trial, both Groth and Dixon identified defendant as the robber.
Defendant had a player's card at Cache Creek Casino which recorded his financial transactions and playing times there. On December 19, 2008, defendant used the card from 5:06 p.m. to 5:34 p.m., and had $.03 at the end of the session. His card was used again between 9:34 p.m. and 10:36 p.m., and he had $100 on the card at the start of the session.
Defendant was charged with second degree robbery (Pen.Code, §§ 211/212.5)... with an enhancement for personal use of a firearm (§ 12022.53, subd. (b)). Defendant's first jury trial ended in a hung jury. Defendant discharged counsel and represented himself at the second trial. Following the second jury trial, defendant was convicted of second degree robbery and the personal use of a firearm enhancement. The trial court denied defendant's motion for a new trial and sentenced defendant to a 13-year prison term, imposed various fines and fees, and awarded 461 days of presentence credit, consisting of 401 days' custody and 60 days' conduct credit.
We appointed counsel to represent defendant on appeal. Counsel filed an opening brief that sets forth the facts of the case and requests this court to review the record and determine whether there are any arguable issues on appeal. ( People v. Wende (1979) 25 Cal.3d 436.) Defendant was advised by counsel of the right to file a supplemental brief within 30 days of the date of filing of the opening brief.
Defendant filed a supplemental brief requesting we conduct an independent review of the case as well as raising several issues of his own.
People v. Urbano, 2012 WL 2019710, at *1 (Cal.App. 3 Dist. June 5, 2012).
Petitioner did not seek review with the California Supreme Court. He did file a series of state habeas corpus petitions to the Yolo County Superior Court (Resp't's Lod. Doc. 19), the Third District Court of Appeal (Resp't's Lod. Doc. 23) and the California Supreme Court (Resp't's Lod. Doc. 25) in which he raised his denial of counsel claim. All state petitions were summarily denied. See Resp't's Lod. Docs. 20, 24, 26.
I. AEDPA Standards
The statutory limitations of federal courts' power to issue habeas corpus relief for persons in state custody is provided by 28 U.S.C. § 2254, as amended by the Antiterrorism and Effective Death ...