Melchor v. Johnson

          ORDER DENYING PETITION FOR WRIT OF HABEAS CORPUS AND DECLINING TO ISSUE CERTIFICATE OF APPEALABILITY

          MICHAEL J. SENG UNITED STATES 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, warden of Central California Women’s Facility, Chowchilla, is represented by Julie A. Hokans 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. 7-8.)

         I. PROCEDURAL BACKGROUND

         Petitioner is currently incarcerated pursuant to a judgment of the Superior Court of California, County of Tulare, following her no contest pleas on October 13, 2011 to first degree robbery, grand theft with use of a firearm, elder abuse, second degree commercial burglary, and an enhancement for a prior conviction. (Clerk's Tr. at 306-07.) On December 14, 2011, the trial court sentenced Petitioner to a determinate term of eight (8) years in state prison. Id.

         Petitioner filed a direct appeal with the California Court of Appeal, Fifth Appellate District. (Lodged Doc. 1.) On February 4, 2013, the court affirmed the judgment. (Lodged Doc. 4.) Petitioner filed a petition for review with the California Supreme Court on March 18, 2013. (Lodged Doc. 7.) The Supreme Court summarily denied the petition on May 15, 2013. (Lodged Doc. 8.) Petitioner did not seek collateral review of her convictions in the state courts.

         Petitioner filed the instant federal habeas petition on July 3, 2014. (Pet., ECF No. 1.) In the amended petition, Petitioner presents a single claim, namely, that she was forced to testify against her co-defendants in violation of her Fifth Amendment rights. (Pet.)

         Respondent filed an answer to the petition on November 5, 2014, and Petitioner filed a traverse to the answer on December 10, 2014. (Answer and Traverse, ECF Nos. 13, 15.) Accordingly, the matter stands fully briefed and ready for adjudication.

         II. STATEMENT OF THE FACTS^[1], ^[2]

On May 9, 2010, 81-year-old Israel Reyna was inside his home when three females came to the door and asked about buying some plants from him. Reyna went outside to show the women the plants, at which point he was grabbed from behind by a male and forced to the ground. The man held a gun to Reyna's head and demanded his money. The man removed Reyna's wallet from his pants and took about $140. The man then removed Reyna's belt and used it to tie Reyna's hands in front of him. After awhile, when he felt it was safe to do so, Reyna got up and went inside the house where he noticed a cell phone and two rifles were missing.

Detective Kevin Kroeze spoke with Alexis Solis about the incident. Solis said that she was a passenger in a truck along with Melchor and Tiffany Robinson; Julian Alderete was driving the truck. On the way back from a trip to a casino, Alderete drove the truck to a home outside Goshen, where he told the three females to contact the "old man" at the residence to distract him and that Alderete was going to hide in the bushes. After the women made contact with the man in the residence, Solis saw Alderete "put up his finger across his mouth as if to say be quiet or not say anything." Solis became scared and returned to the truck. At one point, she looked back and saw Alderete put a gun to the man's head and force him to the ground. Solis stayed near the truck with Robinson. A few minutes later, Melchor returned to the truck. On redirect examination, Detective Kroeze testified that he believed that Solis had said Melchor returned to the truck with a cell phone and wallet.

Detective Kroeze spoke with Melchor on June 7, 2011, following her arrest on a warrant in Kings County. Melchor was advised of and waived her Miranda[fn3] rights. She first claimed that when she arrived at the house, she did not know what was going on, but she later admitted that Alderete knew the man and did not want the man to recognize him. Melchor told Detective Kroeze she had taken a box with jewelry from the house.

FN3: Miranda v. Arizona (1966) 384 U.S. 436.

         PROCEDURAL HISTORY

On May 12, 2011, a criminal complaint filed in Tulare County charged Melchor and Alderete jointly with various counts stemming from the robbery and burglary that took place on May 9, 2010. Alderete was also charged with additional crimes not involving Melchor. The preliminary hearing was scheduled for both defendants on July 5, 2011, but Melchor was not able to be transported as originally planned because she had pending matters in Kings County.

While Melchor was awaiting her preliminary hearing, the prosecution went to trial against Alderete and filed a motion on July 25, 2011, to compel Melchor to testify in Alderete's case, offering use immunity under section 1324. At a hearing on August 2, 2011, Melchor objected, asserting that her Fifth Amendment right could only be protected by a grant of transactional immunity. The trial court granted use immunity and ordered Melchor to testify because it believed she was adequately protected.[fn4]

FN4: On our own motion, we take judicial notice of the order, which is contained in Julian Alderete's appellate file. (Evid. Code, § 452, subd. (d).)

At Alderete's trial, Melchor answered the prosecution's questions, including that she knew Robinson and Solis; that she had known Alderete for 40 years; and that she had spoken to Detective Kroeze. When she was asked if she had gone to a house in Goshen on May 9, 2010, with Alderete, Melchor pled the Fifth Amendment and was directed by the trial court to answer additional questions. After the trial court assured her that none of her testimony could be used against her, Melchor acknowledged that she had gone to the house in Goshen with Alderete, Solis and Robinson and that everyone had gotten out of the car. Melchor testified that all of the women, including herself, met with the old man and that Alderete was behind them. When Melchor was asked if she had seen Alderete do anything, she said "no, " and refused to answer any more questions. The trial court then found her in contempt.

The following day at trial, Melchor continued to assert her Fifth Amendment right, with her own attorney further arguing for her right to transactional immunity. After Melchor's counsel informed Melchor that she needed to answer the questions if she did not wish to be held in contempt, Melchor stated that she would, but neither the prosecution nor the defense made any further inquiries of her.

Melchor's preliminary hearing was then held on August 15, 2011; she was held to answer. An information was filed August 25, 2011, charging Melchor with the same crimes she was earlier charged with, this time individually.

On August 29, 2011, Melchor pleaded not guilty to the charges and denied the allegations. That same day, Melchor filed a motion to dismiss the information pursuant to section 1099, which was heard and denied on September 15, 2011.

On October 13, 2011, Melchor withdrew her not guilty plea and pleaded no contest to the counts in the information and admitted the prior conviction allegations associated with one count. The trial court gave an indicated sentence of eight years in state prison. At sentencing on December 14, 2011, the trial court struck Melchor's prior strike conviction and sentenced her to a total of eight years in state prison.

Melchor requested and was granted a certificate of probable cause.

People v. Melchor, 2013 Cal.App. Unpub. LEXIS 896, 1-6 (Feb. 4, 2013).

         III. GOVERNING LAW

         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 Tulare 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 ...