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Ruiz v. Frauenheim

United States District Court, C.D. California

March 28, 2017

RANDAL RUIZ, Petitioner,
v.
SCOTT FRAUENHEIM, [1] Warden, Respondent.

          FINAL REPORT AND RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE

          ROZELLA A. OLIVER UNITED STATES MAGISTRATE JUDGE

         This Final Report and Recommendation is submitted to the Honorable Percy Anderson, United States District Judge, pursuant to 28 U.S.C. § 636 and General Order 05-07 of the United States District Court for the Central District of California.[2]

         I. INTRODUCTION

         In 2012, a jury in the Los Angeles County Superior Court convicted Randal Ruiz (“Petitioner”) of first degree burglary and second degree burglary. (Clerk's Transcript (“CT”) 1069-70.) After determining that Petitioner had served two prior prison terms and had seven prior “strikes” under California's Three Strikes law, the trial court sentenced him to two concurrent 35 years-to-life terms in prison. (CT 1105-07, 1261-65.)

         Petitioner appealed to the California Court of Appeal, and his appointed counsel filed a brief pursuant to People v. Wende, 25 Cal.3d 436 (1979), informing the court that there were no non-frivolous issues to raise and requesting that the appellate court independently review the record for arguable issues. (See Lodg. No. 3 at 2.) After being informed by the Court of Appeal that he could, on his own, submit any claims he wished the court to consider, Petitioner filed two letter briefs, but both were untimely. (Lodg. Nos. 4-5.) Thereafter, the California Court of Appeal issued an Order stating that it had reviewed the record, pursuant to People v. Wende, and was satisfied that no arguable issues existed and affirmed the judgment. (Lodg. No. 3 at 7-9.) The appellate court also noted that even if it had considered the “multitude of contentions” raised in Petitioner's untimely letter briefs, it would not have resulted in reversal of his conviction. (Lodg. No. 3 at 7.)

         Petitioner did not file a petition for review in the California Supreme Court. Instead, he filed a habeas corpus petition in the California Court of Appeal, which was denied both on procedural grounds and on the merits. (See Lodg. Nos. 6-7.) Thereafter, he filed a habeas corpus petition in the California Supreme Court, which was denied summarily in February 2014. (Lodg. Nos. 10-11.) A second habeas petition filed in the California Supreme Court was also denied without comment in January 2015. (Lodg. Nos. 8-9.)

         On November 10, 2014, Petitioner, proceeding pro se, filed a Petition for Writ of Habeas Corpus by a Person in State Custody (“Petition”), pursuant to 28 U.S.C. § 2254. On April 7, 2015, Respondent filed a Motion to Dismiss. Petitioner filed a traverse in response to the motion on June 3, 2015, and a supplement to the traverse on August 10, 2015. The Court denied the Motion to Dismiss on February 2, 2016, and directed Respondent to file an answer. Thereafter, on May 12, 2016, Respondent filed an Answer to the Petition and a supporting memorandum (“Answer”). Respondent also lodged the relevant state records. Petitioner filed a Traverse on September 28, 2016.

         II. PETITIONER'S CLAIMS

         The Petition raises five grounds for relief, as follows:

1. The Petition should be stayed and abeyed until the California Supreme Court rules on his pending state petition in case no. S222172.
2. The trial court violated his constitutional rights by forcing him, while acting in pro per, to “forfeit his right to listen and participate in sidebars.”
3. The California Court of Appeal's ambiguous order denying his habeas petition in case no. B256211 does not constitute an adequate and independent procedural bar.
4. Trial counsel was ineffective for failing to challenge the validity of his prior “strike” convictions.
5. Appellate counsel was ineffective for failing to raise on appeal the issue of trial counsel's ineffectiveness in not contesting the validity of Petitioner's prior “strike' convictions.

(Petition at 5-7.)

         III. FACTUAL SUMMARY[3]

         On October 23, 2009, Stephen Biskup was staying in a guesthouse located behind the main house in Pasadena. There was a storage shed behind the guesthouse. That morning, between 7:00 and 8:00 a.m., Biskup “looked out on the porch to the backyard” and noticed that the gate to the yard, which had been closed the night before, was “slightly open.” Biskup went out to the gate and saw a man with a backpack on a bicycle. Biskup did not know the man, who said “Hi” and then “took off on the bike.” Biskup told a Sheriff's deputy what he had witnessed.

         Mary Ann Shemdin owned two homes on a lot in Pasadena. Each of the homes had a two car garage with a carport, and there was a storage shed at the back of the lot. Shemdin lived in one of the homes and a male lived in the second one.

         On the morning of October 23, 2009, the man who lived in the second house contacted Shemdin about something that had occurred in the storage shed at the back of the lot. Afterwards, Shemdin inspected the storage shed and found the door, which was always locked, and a window open. The shed, which had been full of furniture, Christmas decorations, files, and boxes containing her daughter's possessions, had been “ransacked.” Shemdin could see that “things [in the shed] had been gone through, ” and several items in the shed had been moved or altered.

         Shemdin called the Sheriff's Department to file a police report. While she was giving the report, a City of Pasadena police officer arrived and asked Shemdin if she knew a Marie St. Claire. When Shemdin told the officer that St. Claire was her daughter who had moved out of state, the officer asked her if she would recognize her computer. A few days later, Shemdin went to the Pasadena Police Department and identified her daughter's computer, which had been in the storage shed along with her daughter's other possessions.

         On October 23, 2009, Angele Ajamian resided in Pasadena. Her neighbor, Mary Ann Shemdin, lived next door. That morning between 7:00 and 8:00 a.m., Ajamian was in her family room watching the news. From her window, she saw a man with a backpack going toward a rental house in the back of the property. The man left a bicycle and stood behind a big tree. Ajamian opened the door and asked, “Can I help you?” The man replied, “I'm looking for Hector.” Ajamian said, “There is no Hector here, ” and the man “took his bike and left.” A few days later, police officers showed Ajamian a photo lineup and she identified Petitioner's photograph as the man she saw in her backyard. Ajamian also identified Petitioner in court as the man she saw on October 23rd.

         On the morning of October 23, 2009, Frank Greer was working in his home office at his residence in Pasadena. His office was adjacent to the laundry room in his garage and connected to the laundry room by a door. The laundry room could also be accessed through the garage by another door. At approximately 9:30 a.m., Greer heard a noise in the laundry room and looked up, but did not see anything. When he heard another noise from the laundry room, he looked up again and saw the silhouette of a man through the sheer white curtain on the door to the laundry room. Greer, who was expecting his wife, not a man, saw the male silhouette touch the door knob and heard the knob “kind of turn a little bit.” Greer then said, “Hello, ” which caused the man to “sort of [freeze]” and then leave. Greer went to investigate and when he got outside, he saw Petitioner, wearing a bandana and a backpack, trying to free a bicycle that was entangled in some mesh netting in a tomato garden. After Petitioner freed the bicycle and moved it into the driveway, he said, “I was just looking for Hector.” Petitioner then mounted his bicycle and rode away.

         Greer called 911 and provided a description of the intruder. When a police officer responded, he told Greer that the police had found someone who matched the description Greer had provided to the 911 operator. The officer transported Greer to the location where a suspect had been detained and Greer was able to positively identify the man as the person he had seen at his house that morning. Greer also identified Petitioner in court as the man with the bicycle that he saw in his driveway.

         On October 23, 2009, City of Pasadena Police Officer Roxanne Bevel was working patrol with her partner Officer Burchett. Shortly after 9:30 a.m., she received a radio broadcast regarding a burglary. While responding to the scene of the burglary, the officers observed a male on a bicycle “who had a light gray covering over his head, [that] later was identified as a long-sleeved shirt.” The man generally fit the description of the burglary suspect that the officers were provided in the dispatch broadcast. Officer Bevel identified Petitioner in court as the man they observed that morning.

         When the officers approached Petitioner, Officer Bevel noticed that he had a backpack on his back and was carrying a green bag. The officers recovered a “Radio Shack golf scope” and screwdriver from his rear pockets and black and purple gloves from his front pants pocket. Petitioner had a screwdriver, allen wrenches, bolt cutters, and various tools, along with a couple of watches and other items, inside his backpack. Inside the green bag, Officer Burchett recovered a blue and silver laptop and other items. Petitioner was also carrying jewelry, including six rings, hoop earrings, three bracelets, a pendant, and a chain, as well as a bicycle repair kit.

         After arresting Petitioner, Officer Burchett assisted Officer Bevel in searching Petitioner and inventorying all the items that the officers recovered from him. When Officer Burchett powered on the laptop computer Petitioner had in his green bag, he found a resume with a name, Marie St. Claire, and a Pasadena address that matched Mary Ann Shemdin's address.

         City of Pasadena Detective Richard Pippin investigated the burglary of the storage shed on Shemdin's property. As part of the investigation, he spoke to Shemdin and showed her items that were booked into evidence as a result of Petitioner's arrest. Shemdin identified the computer as belonging to her daughter, but none of the other items. Detective Pippin also showed Ajamian a six-pack photo lineup. Ajamian identified the photograph of Petitioner in that lineup.

         In his defense, Petitioner called an eyewitness identification expert to testify about various issues with the reliability of eyewitness identifications.

         IV. STAND ...


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