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Ozua v. Sutton

United States District Court, S.D. California

March 28, 2017

KENNETH OZUA, Petitioner,
v.
JOHN SUTTON, Warden, Respondent.

          1) ORDER GRANTING RESPONDENT'S MOTION FOR LEAVE TO ASSERT PROCEDURAL DEFAULTS IN THE ANSWER [DKT. NO. 11]; AND 2) REPORT AND RECOMMENDATION FOR ORDER DENYING THE PETITION FOR A WRIT OF HABEAS CORPUS [DKT. NO. 1].

          HON. NITA L. STORMES, UNITED STATES MAGISTRATE JUDGE

         Petitioner Kenneth Ozua is a state prisoner proceeding pro se and in forma pauperis with a Petition for a Writ of Habeas Corpus filed pursuant to 28 U.S.C. § 2254. (ECF No. 1.) Petitioner challenges the sentence imposed following his San Diego Superior Court conviction, obtained as a result of a guilty plea, for second degree attempted murder with an enhancement for the personal use of a firearm causing great bodily injury. (Pet. at 1-2.) He received a stipulated sentence of 7 years-to-life on the attempted murder count and a consecutive term of 25 years-to-life for the enhancement. (Id.) He claims that because the gang involvement element of the enhancement was not pled or proved, his plea was not knowing and voluntary, and therefore the 25 years-to-life term: (a) violates the plea agreement; (b) arose from constitutionally ineffective assistance of counsel; (c) violates his equal protection rights; and (d) violates his right to be free from cruel and unusual punishment. (Id. at 6-6b [ECF No. 1 at 6-8].)

         Respondent has filed an Answer and lodged portions of the state court record. (ECF Nos. 10, 12.) Respondent argues that habeas relief is unavailable because the sole claim in the Petition is procedurally defaulted, and is not cognizable as it relies on pre-plea constitutional violations. (Memorandum of Points and Authorities in Support of Answer [“Ans. Mem.”] at 3-8 [ECF No. 10-1 at 9-14].) Respondent alternately contends that if the Court reaches the merits of the claim, relief is unavailable because the state court adjudication of the claim, on the basis that the enhancement contains no gang involvement element, is neither contrary to, nor involves an unreasonable application of, clearly established federal law. (Id. at 8-11 [ECF No. 10-1 at 14-17].)

         Respondent has also filed a Motion for Leave to Assert Procedural Defaults in the Answer, requesting permission to raise the procedural default defense in an answer rather than in a motion to dismiss. (ECF No. 11.) Respondent reads this Court's November 14, 2016 Order directing a response to the Petition as requiring that any procedural default defense be raised in a motion to dismiss rather than an answer, and seeks to be relieved of that requirement because the Petition raises a single claim which was denied in state court on procedural grounds and the merits. (Id. at 1-2.) Petitioner has not filed a Traverse.

         For the following reasons, the Court finds that Respondent may assert a procedural default defense in the Answer and recommends granting Respondent's Motion. The Court also finds that the interests of judicial economy counsel in favor of reaching the merits of Petitioner's claim rather than determining whether it is procedurally defaulted, and that federal habeas relief is unavailable because Petitioner has failed to show that the state court adjudication of the claim is contrary to, or involves an unreasonable application of, clearly established federal law, or that it is based on an unreasonable determination of the facts. The Court therefore recommends the Petition be denied.

         I. PROCEDURAL BACKGROUND

         In a five-count amended information filed in the San Diego County Superior Court on April 27, 2015, Petitioner was charged with attempted murder in violation of California Penal Code § 187(a) and 664 (count one), assault with a firearm in violation of Penal Code § 245(a)(2) (count two), attempted robbery in violation of Penal Code §§ 211 and 644 (count three), possession of a firearm by a felon in violation of Penal Code § 29800(a)(1) (count four), and possession of ammunition by a person prohibited from possessing ammunition in violation of Penal Code § 30305(a)(1) (count five). (Lodgment No. 2 at 1-3 [ECF No. 12-2 at 1-3].) With respect to counts one and three, it was alleged that Petitioner personally discharged a semi-automatic handgun and proximately caused great bodily injury to the victim within the meaning of Penal Code § 12022.53(d), that he intentionally discharged a firearm within the meaning of Penal Code § 12022.53(c), and that he personally inflicted great bodily injury upon the victim within the meaning of Penal Code § 12022.7(a). (Id. at 2-3.) With respect to count two, the information alleged that Petitioner personally used a handgun within the meaning of Penal Code § 12022.5(a), and personally inflicted great bodily injury on the victim within the meaning of Penal Code § 12022.7(a). (Id. at 2.)

         Petitioner entered a guilty plea to count one and admitted the truth of the Penal Code § 12022.53(d) enhancement as to that count.[1] (Lodgment No. 3.) The plea agreement included a stipulated sentence of 32 years-to-life in state prison. (Id. at 1 [ECF No. 12-3 at 1].) Petitioner initialed the boxes on the change of plea form acknowledging and waiving his constitutional rights. (Id. at 1-3 [ECF No. 12-3 at 1-3].) The trial judge confirmed with Petitioner on the record that he understood those rights and freely waived them in order to plead guilty. (Lodgment No. 5, Reporter's Tr. [“RT”] at 4-5 [ECF No. 12-5 at 5-6].) As relevant here, immediately after Petitioner pled guilty, he answered “yes” when asked by the judge: “And do you admit that it is true under 12022.53 that you intentionally discharged a firearm and this caused great bodily injury to the person that you shot at; do you admit that's true?” (RT at 5 [ECF No. 12-5 at 6].) On June 5, 2015, Petitioner was sentenced to 7 years-to-life on the attempted murder count, and received a consecutive term of 25 years-to-life on the firearm use enhancement. (Lodgment No. 6 at 3 [ECF No. 12-6 at 3].) He did not appeal.

         On December 15, 2015, Petitioner filed a pro se habeas petition in the state superior court claiming that the trial court failed to properly advise him of his right to counsel, his privilege against self-incrimination, his right to confront witnesses, his right to a jury trial, and the direct consequences of his guilty plea, that defense counsel was ineffective, and that the gang involvement element of the enhancement was not pled or proved. (Lodgment No. 7.) The superior court denied the petition after finding that the record clearly showed that Petitioner had been properly advised of his rights and had personally waived them on the record, but did not address the gang involvement or ineffective assistance aspects of the claim. (Lodgment No. 8.) On March 8, 2016, Petitioner filed a pro se habeas petition in the appellate court raising the same claims. (Lodgment No. 9.) The appellate court denied relief on the basis that Petitioner could have raised his failure to be advised of his rights claim on direct appeal if he had obtained a certificate of probable cause, but did not do so, and was not permitted to avoid that requirement through habeas. (Lodgment No. 10.) The court alternatively held that the claim was frivolous because the transcript of the plea hearing clearly showed Petitioner “received the advisements regarding his trial rights and the consequences of a guilty plea and then made the waivers, as required for a valid guilty plea.” (Id. at 1-2 [ECF No. 12-10 at 1-2].) The court did not address the gang element and ineffective assistance of counsel aspects of the claim. (Id.)

         Rather than proceed to the state supreme court, Petitioner began a new round of state habeas by filing a second pro se habeas petition in the superior court on March 25, 2016, claiming his 25 years-to-life sentence was illegal because the enhancement required a gang involvement element which was neither charged nor proved, and again sought to withdraw his guilty plea because he had not been informed of his constitutional rights. (Lodgment No. 11.) The court denied relief because the firearm use enhancement did not contain a gang involvement element, and the claim of not having been informed of his constitutional rights had been raised and rejected in his prior petition. (Lodgment No. 12.)

         On June 6, 2016, Petitioner filed a pro se habeas petition in the appellate court claiming that the firearm use allegation contained a gang involvement element which had not been pled or proved. (Lodgment No. 13.) The court denied relief because the claim could have been but was not raised on direct appeal, and could have been but was not raised in the first state habeas petition. (Lodgment No. 14.) The court alternately held that even if the claim was not procedurally barred it was without merit because the firearm use enhancement did not contain a gang involvement element. (Id.)

         On July 8, 2016, Petitioner filed a pro se habeas petition in the state supreme court in which he presented the same claim raised here, and argued that any state procedural bar should be excused. (Lodgment No. 15.) That court denied the petition in an order which stated: “The petition for writ of habeas corpus is denied.” (Lodgment No. 16.)

         II. UNDERLYING FACTS

         The following description of the crime is taken from the probation officer's report, which in turn relied on the preliminary hearing transcript and a police report:

On 06/12/14 at approximately 1330 hours, police responded to a radio call of a shooting that occurred in the east alley at 4000 Ohio Street. When officers arrived on scene, they found the 62 year [old] victim, Yong Smith, lying on the ground in the alley. She suffered a gunshot wound to her right shoulder.
Through investigation, police learned the victim went to her mother's house to pick her up and take her to the dentist. She parked in the alley, went inside to get her mother and then returned to her vehicle. After she placed her mother in the back seat of her car, she walked around the rear of the vehicle to the trunk to get her mother's dental records. At that time, a male and a female pulled up next to the victim's vehicle in a 2004 Trailblazer. The male, later identified as the defendant, asked the victim for directions to a coffee shop in the area. The victim was not familiar with the coffee shop but gave the defendant directions to the nearest intersection where the coffee shop was located. After the victim gave the defendant the directions, she turned back toward her vehicle, assuming their conversation had ended. The defendant then exited his vehicle, approached the victim and whispered in her ear, “give me your freaking purse.” The victim looked down and saw the defendant holding what she believed to be a fake gun or taser gun. The victim ran northbound toward a trashcan when she heard the gunshot and felt immediate pain to her right shoulder. The victim fell to the ground screaming in pain while the defendant got into his vehicle and drove away. Paramedics responded and transported the victim to the hospital. Doctors informed police the bullet entered the victim's right shoulder, went through her humerus bone and out the front of her shoulder. The injury required surgery.
Various individuals in the neighborhood heard the gunshot. A few witnesses saw the defendant's vehicle leave the area. One witness was able to provide police with the first three characters of the defendant's license plate. On 06/16/14, police received information from an anonymous source who named the defendant as the shooter and reported he fled to Mexico after the crime. The anonymous person provided police with the defendant's vehicle information. That same day, the victim identified the defendant as the shooter during a photo line-up. She also identified the female passenger as Mariela Ozua, the defendant's wife. Later that day, police detained the defendant at the Otay Mesa point of entry as he entered into the United States from Mexico with his brother.
Following admonishment, the defendant told police he took his wife to Mercy Hospital that day and only had $4. When they left the hospital, the defendant had to pay $2 for parking. He said his wife was upset because she had no idea how they were going to feed their children with no money. He saw the victim who drove a nice vehicle. He decided to stop and ask the victim for directions then snatch her purse. When he exited his vehicle and confronted the victim, she ran in an attempt to get away and he “pulled the trigger.” He claimed he had the firearm pointing down and tried to fire the weapon into the ground. He knew he injured the victim because he heard her ...

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