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Romero v. Kernan

United States District Court, S.D. California

May 30, 2018

WILLIAM VINCENT ROMERO, Petitioner,
v.
SCOTT KERNAN, Secretary of the California Department of Corrections and Rehabilitation, et al., Respondent.

          REPORT AND RECOMMENDATION FOR ORDER DENYING PETITION FOR WRIT OF HABEAS CORPUS [ECF NO. 65]

          HON. BARBARA L. MAJOR, UNITED STATES MAGISTRATE JUDGE

         This Report and Recommendation is submitted to United States District Court Judge Gonzalo P. Curiel pursuant to 28 U.S.C. § 636(b) and Civil Local Rules 72.1(d) and HC.2 of the United States District Court for the Southern District of California. On May 20, 2014, Petitioner William Vincent Romero, a state prisoner who is proceeding pro se and in forma pauperis, commenced these habeas corpus proceedings pursuant to 28. U.S.C. § 2254. ECF No. 1 ("Pet"). On October 4, 2017, Mr. Romero filed a First Amended Petition for Writ of Habeas Corpus. ECF No. 65 ("FAP"). Petitioner challenges his convictions for second degree murder, gross vehicular manslaughter, driving under the influence causing injury, driving with a .08 blood alcohol level or higher causing injury, and hit and run with death or permanent serious injury. FAP at 2; see also ECF No. 71-1 ("Answer") at 9 and Lodgment 34. Respondent answered the FAP on January 29, 2018. ECF No. 71. Petitioner filed a traverse on February 11, 2018. ECF No. 76.

         This Court has considered the FAP, Answer, Traverse, and all supporting documents filed by the parties. For the reasons set forth below, this Court RECOMMENDS that Petitioner's Petition for Writ of Habeas Corpus be DENIED.

         FACTUAL AND PROCEDURAL BACKGROUND

         The following facts are taken from the California Court of Appeal's opinion in People v. Romero, 2013 WL 1808701 (Cal.Ct.App. April 30, 2013):

On Easter day in 2010, Romero went to a party at the home of his ex-wife, Christina Gold. When Romero arrived at Gold's home between 2:00 and 3:00 p.m., he was already intoxicated. Romero had tequila and some beer while at the party. He made a comment to Gold that if he drove, someone was going to die that night. After Romero became loud and belligerent, Gold told him to "crash on the couch." Romero vomited several times.
Romero's daughter, Victoria Shacreaw, left the party around 5:00 p.m. and returned two hours later. Romero was asleep while Shacreaw was gone. Around 7:30 p.m., Romero stated to Shacreaw, "If I drive right now either I'm gonna die or some innocent's gonna die." At 8:40 p.m., neighbors came to the house and said they were going to have Romero's car towed because it was in their driveway. Shacreaw asked Romero for his keys in order to move the car, but Romero pushed her and the neighbors out of the way and took off. As Romero was running down the stairs, Shacreaw told him to give her the keys because he was too drunk to drive.
Romero's son, Nicholas, was also at the party that day. Nicholas left the party in the afternoon and returned to the home that he shared with his father. Around 9:00 p.m. that night, Nicholas heard Romero's Camaro pull into the driveway. When Nicholas went outside to Romero's car, Romero was sitting in the driver's seat talking on the phone. Romero drove away around 10:00 p.m.
Shortly before midnight, Robert Houston was driving southbound on Interstate 5 near San Onofre when he looked in his rearview mirror and saw a sports car approaching him very fast. The sports car was traveling at approximately 100 miles per hour and recklessly changing lanes. Other witnesses also observed a dark Camaro traveling at a high rate of speed and recklessly moving across lanes of traffic. The Camaro then hit the rear end of a Ford Explorer, causing the Explorer to spin and hit the guardrail.
Lopez, Sr., and his son, Oscar Lopez, Jr., were thrown out of the Explorer. Lopez, Sr. died from his injuries and Lopez, Jr., who was found lying on the northbound side of the freeway, suffered a laceration on his head that required staples to repair. Two other passengers did not sustain any injuries requiring treatment.
When Officer Mark Keyes and his partner arrived at the site of the accident, they received information that the driver of the Camaro had fled the scene. The officers spotted Romero walking along a frontage road next to the freeway. Romero darted down a trail towards the beach. Border Patrol agents found Romero lying in the brush. Although agents did not mention the crash, Romero immediately stated that he was not the driver of the vehicle. He claimed the driver was a man named "Ted, " who he met at Lucky John's bar in Fullerton that night. Romero told officers that he was drinking beers with Ted at the bar and later, in a nearby park.
Romero's blood was drawn at a hospital. His DNA matched DNA from blood samples taken from the driver's side airbag in the Camaro and a metal guardrail. When Romero's blood was drawn at 2:05 a.m., his blood alcohol level was .10 percent. Jorge Pena, a criminalist with the San Diego County Sheriffs Crime Laboratory, testified that based on a normal rate of elimination, Romero's blood alcohol level at the time of the crash was between .125 and .145 percent. Pena explained that because of the "Mellanby effect, " a person feels the effects of alcohol more during intake than during the time the body is eliminating alcohol from the system.

         Lodgment 5 at 2-4.[1]

         On September 6, 2011, the People of the State of California filed an amended information charging Petitioner with murder, gross vehicular manslaughter while intoxicated, vehicular manslaughter - non alcohol-gross negligence - unlawful manner, driving under the influence causing injury, driving with a measurable blood alcohol causing injury, and hit and run with death or permanent serious injury. Lodgment 34 at 7-10. Following a trial, the jury found Petitioner guilty of second degree murder, gross vehicular manslaughter while intoxicated, driving under the influence causing injury, driving with a .08 blood alcohol level or higher causing injury, and hit and run with death or permanent serious injury. Id., at 214-218. The jury also found true that Petitioner fled the scene of the crime and personally inflicted great bodily injury upon a person. Id. The trial court found that Petitioner had a prior conviction and one prison prior. Id. at 378. Petitioner was sentenced to fifteen years to life plus one year. Id. at 334, 381; see also Lodgment 11.

         Petitioner appealed his conviction, arguing that (1) the record lacked sufficient evidence to sustain a conviction for implied malice murder and (2) his convictions for driving under the influence and causing injury and driving with a .08 blood alcohol level or higher and causing injury had to be reversed as they were lesser included offenses of vehicular manslaughter. Lodgment 3. On April 30, 2013, the California Court of Appeals filed an opinion affirming the judgment of the trial court as modified.[2] Lodgment 5. Petitioner filed a petition for rehearing on May 21, 2013 which was denied on May 22, 2013. Lodgments 6 and 7. Petitioner filed a petition for review with the California Supreme Court on June 4, 2013 which was denied on July 10, 2013. Lodgments 8 and 9.

         On September 19, 2013, Petitioner filed a petition for writ of habeas corpus in the Superior Court of California, County of San Diego arguing that he was (1) convicted on an invalid information, (2) the recipient of ineffective assistance of counsel (3) a victim of prosecutorial misconduct, and (4) the victim of abuse of discretion when his motion to reduce the degree of his offense to manslaughter was denied. Lodgment 10. On December 5, 2013, the court denied three of Petitioner's claims and issued an order to show cause why the petition should not be granted as to Petitioner's ineffective assistance of counsel claim. Lodgment 11.

         On March 24, 2014, Petitioner filed a First Amended Petition for Writ of Habeas Corpus in the Superior Court of California, County of San Diego in which he alleged the same four claims as his previous petition. Lodgment 14. On May 29, 2014, the court found that the primary argument being raised in the Amended Petition was Petitioner's claim that his right to Due Process was violated when the People failed to file the information within fifteen days of his preliminary examination and denied the Amended Petition noting that Petitioner's claim was waived. Lodgment 16.

         On May 20, 2014, Petitioner filed a petition for writ of habeas corpus in this Court. ECF No. 1. On June 14, 2014, Petitioner filed a Motion to Stay and Abey the federal proceedings while he exhausted his new claims in state court. ECF No. 11. The Court issued a Report and Recommendation for order denying Petitioner's motion to stay and motion to amend on February 27, 2015. ECF No. 38. On March 3, 2015, Petitioner filed a request to extend time to object to the Court's Report and Recommendation because he had an evidentiary hearing scheduled for March 20, 2015 in his habeas case that was still proceeding in state court. ECF No. 40. As part of the request, Petitioner provided the Court with an order from Judge Elias of the Superior Court for the County of San Diego setting the evidentiary hearing and summarizing the pending ineffective assistance of counsel claims. Id., at 5-6. This order was not provided to the Court by either party as part of the original lodgments and attachments to the original pleadings. See Docket; see also ECF No. 41. In light of the new information, the Court withdrew its February 2017 Report and Recommendation and filed an Amended Report and Recommendation on March 26, 2015. ECF No. 41. On August 5, 2015, District Judge Gonzalo P. Curiel issued an Order Adopting in Part the Court's Amended Report and Recommendation, Denying Petitioner's Motion for Stay and Abeyance Pursuant to Rhjnes, Granting Petitioner a Stay Pursuant to Kelly, and Denying Petitioner's Motion to Amend the Petition. ECF No. 45.

         On January 27, 2015, Petitioner filed another petition for writ of habeas corpus in the Superior Court of California, County of San Diego alleging three counts of ineffective assistance of counsel and actual innocence. Lodgment 18. The court denied the petition on April 9, 2015 noting that a hearing was already scheduled with respect to the ineffective assistance of counsel claims and that the court had previously rejected some of the other arguments Petitioner was making. Lodgment 19. The court further noted that if Petitioner could not justify the filing of numerous habeas petitions, it could summarily deny Petitioner's claims, and that successive petitions are not permitted. Id.

         On May 1, 2015, Petitioner filed a petition for writ of habeas corpus in the California Court of Appeal, Fourth Appellate District alleging (1) ineffective assistance of trial counsel, (2) ineffective assistance of appellate counsel, and (3) actual innocence. Lodgment 20. On June 18, 2015, the court denied Petitioner's petition due to procedural defects including a lack of sufficient evidentiary support to establish a prima facie claim for relief due to ineffective assistance of trial or appellate counsel. Lodgment 21.

         On October 16, 2015, the Superior Court of California, County of San Diego issued an order denying Petitioner's writ of habeas corpus [see Lodgment 10]. Lodgment 36. Following the December 5, 2013 order to show cause, the court held an evidentiary hearing regarding Petitioner's claims of ineffective assistance of trial counsel. Id. The court found that the decision of Petitioner's counsel, Ms. Kathleen Cannon, to rely on the investigation performed by an investigator for the Public Defender's office with respect to Petitioner's claim of visiting an AM/PM before the accident did "not fall[] below the standards of a competent attorney." Id. at 4. The court also found that Ms. Cannon's failure to conduct an investigation regarding Petitioner's claim that he visited a McDonald's before the accident did "demonstrate a deficiency in performance by trial counsel, " but that Petitioner did not establish prejudice that the trial would have been different but for Ms. Cannon's failure to investigate. Id.

         On January 18, 2016, Petitioner filed a petition for writ of habeas corpus in the California Court of Appeal, Fourth Appellate District arguing that (1) he was entitled to a "recall of sentence, " (2) his previous conviction was not a violent or serious felony pursuant to Penal Code § 667.5 or § 1192.7, and (3) in accordance with Proposition 47, Petitioner should be given a more appropriate sentence. Lodgment 22. The court summarily denied the petition on February 3, 2016. Lodgment 23.

         On February 18, 2016, Petitioner filed a petition for writ of habeas corpus in the Supreme Court of California alleging the same three claims from his January 18, 2016 petition. Lodgment 24. The court summarily denied the petition on April 27, 2016. Lodgment 25.

         On May 12, 2016, Petitioner filed a petition for writ of habeas corpus in the California Court of Appeal, Fourth Appellate District arguing that (1) he received ineffective assistance of trial counsel when his counsel failed to properly investigate his defense and when she failed to inform Petitioner of his right to testify at trial, (2) the judge erred when he improperly handled the information and complaint and continued the preliminary hearing by twenty-six days without Petitioner's waiver or consent, (3) the District Attorney erred when he failed to file the information within fifteen days of the holding order issued at the preliminary hearing, and (4) he has made a colorable showing of actual innocence. Lodgment 26. On June 13, 2016, the court denied most of the claims with a quote from In re Clark (1993) 5 Cal.4th 750, 767 that "[i]t has long been the rule that absent a change in the applicable law or the facts, the court will not consider repeated applications for habeas corpus presenting claims previously rejected" and found that Petitioner did "not demonstrate any prejudice under an objective standard of reasonable probability of an adverse effect on the outcome" with respect to his ineffective assistance of counsel claim. Lodgment 27.

         On June 8, 2016, Petitioner filed a petition for writ of habeas corpus in the Superior Court of California, County of San Diego alleging that he was convicted under an unconstitutionally vague statue. Lodgment 28. On July 27, 2016, the court denied the petition noting that Petitioner failed to raise the issue on appeal or in his previous petitions and that he failed to make a prima facie showing of specific facts entitling him to habeas corpus relief under existing law. Lodgment 29.

         On June 19, 2016, Petitioner filed a petition for writ of habeas corpus in the California Supreme Court arguing that (1) he received ineffective assistance of trial counsel, (2) the judge erred when he improperly handled the information and complaint and continued the preliminary hearing by twenty-six days without Petitioner's waiver or consent, (3) the District Attorney erred when he failed to file the information within fifteen days of the holding order issued at the preliminary hearing, and (4) he has made a colorable showing of actual innocence. Lodgment 30. The California Supreme Court summarily denied the petition on August 10, 2016. Lodgment 31.

         On September 13, 2016, Petitioner filed a petition for writ of habeas corpus in the California Court of Appeal, Fourth Appellate District arguing that he was convicted under an unconstitutionally vague statue. Lodgment 32. The court denied the petition on September 21, 2016. Lodgment 33.

         Petitioner filed the instant FAP on October 14, 2017. FAP. Respondent filed an Answer and Memorandum of Points and Authorities on January 29, 2018. ECF No. 71. Respondent also submitted Lodgments on January 29, 2018. ECF No. 72. On February 11, 2018, Petitioner filed a Traverse. ECF No. 76.

         SCOPE OF REVIEW

         Title 28, United States Code, § 2254(a), sets forth the following scope of review for federal habeas corpus claims:

The Supreme Court, a Justice thereof, a circuit judge, or a district court shall entertain an application for a writ of habeas corpus in behalf of a person in custody pursuant to the judgment of a State court only on the ground that he is in custody in violation of the Constitution or laws or treaties of the United States.

28 U.S.C. § 2254(a) (West 2012).

         The FAP was filed after enactment of the Anti-terrorism and Effective Death Penalty Act of 1996 ("AEDPA"), Pub. L. No. 104-132, 110 Stat. 1214. Under 28 U.S.C. § 2254(d), as amended by AEDPA:

(d) An application for a writ of habeas corpus on behalf of a person in custody pursuant to the judgment of a State court shall not be granted with respect to any claim that was adjudicated on the merits in State court proceedings unless the 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 Supreme Court of the United States; or
(2) resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding.

28 U.S.C. § 2254(d) (West 2012). In making this determination, a court may consider a lower court's analysis. Ylst v. Nunnemaker, 501 U.S. 797, 803-04 (1991) (authorizing a reviewing court to look through to the last reasoned state court decision). Summary denials are presumed to constitute adjudications on the merits unless "there is reason to think some other explanation for the state court's decision is more likely." Harrington v. Richter, 562 U.S. 86, 98-101 (2011).

         A state court's decision is "contrary to" clearly established federal law if the state court: (1) "applies a rule that contradicts the governing law set forth in [Supreme Court] cases"; or (2) "confronts a set of facts that are materially indistinguishable from a decision of [the Supreme] Court and nevertheless arrives at a result different from [Supreme Court] precedent." Williams v. Taylor, 529 U.S. 362, 405-06 (2000).

         A state court's decision is an "unreasonable application" of clearly established federal law where the state court '"identifies the correct governing legal principle from [the Supreme] Court's decisions but unreasonably applies that principle to the facts of the prisoner's case.'" Lockyer v. Andrade, 538 U.S. 63, 75 (2003) (quoting Williams, 529 U.S. at 413). "[A] federal habeas court may not issue [a] writ simply because that court concludes in its independent judgment that the relevant state-court decision applied clearly established federal law erroneously or incorrectly. Rather, that application must be objectively unreasonable." Id. at 75-76 (citations and internal quotation marks omitted). Clearly established federal law "refers to the holdings, as opposed to the dicta, of [the Supreme] Court's decisions as of the time of the relevant state-court decision." Williams, 529 U.S. at 412.

         If the state court provided no explanation of its reasoning, "a habeas court must determine what arguments or theories supported or. . . could have supported, the state court's decision; and then it must ask whether it is possible fairminded jurists could disagree that those arguments or theories are inconsistent with the holding in a prior decision of [the Supreme Court]." Harrington, 562 U.S. at 102. In other words, a federal court may not grant habeas relief if any fairminded jurist could find the state court's ruling consistent with relevant Supreme Court precedent. Id.

         Habeas relief also is available if the state court's adjudication of a claim "resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the state court proceeding." 28 U.S.C. § 2254(d)(2) (West 2012); Wood v. Allen, 558 U.S. 290, 293 (2010). A state court's decision will not be overturned on factual grounds unless this Court finds that the state court's factual determinations were objectively unreasonable in light of the evidence presented in state court. See Miller-El, 537 U.S. at 340; see also Rice v. Collins, 546 U.S. 333, 341-42 (2006) (the fact that "[Reasonable minds reviewing the record might disagree" does not render a decision objectively unreasonable). This Court will presume that the state court's factual findings are correct, and Petitioner may overcome that presumption only by clear and convincing evidence. See 28 U.S.C. § 2254(e)(1); Schriro v. Landriaan, 550 U.S. 465, 473-474 (2007).

         The exhaustion of available state judicial remedies is a prerequisite to a federal court's consideration of claims presented in habeas corpus proceedings. 28 U.S.C. § 2254(b)(1)(A); see Rose v. Lundy, 455 U.S. 509, 522 (1982); McOueary v. Blodaett, 924 F.2d 829, 833 (9th Cir. 1991). Exhaustion of a habeas petitioner's federal claims requires that they have been "fairly presented" in each appropriate state court, including a state supreme court with powers of discretionary review. Baldwin v. Reese, 541 U.S. 27, 29 (2004). However, claims are not exhausted by mere presentation to the state appellate system. A petitioner also must "alert[] [the state] court to the federal nature of the claim." Id. at 29. A petitioner may indicate a federal claim by citing the source of federal law upon which he relies, or by merely labeling the claim as "federal." Id. at 32.

         DISCUSSION

         Petitioner presents six grounds for habeas relief. FAP. Petitioner claims that (1) there was insufficient evidence to support the implied malice element required for second degree murder in violation of his Fourteenth Amendment rights, (2) trial counsel provided ineffective assistance of counsel by failing to investigate the evidence that she presented to the jury in violation of his Sixth and Fourteenth Amendment rights, (3) his Sixth Amendment right to a speedy trial was violated, (4) the District Attorney failed to file the information within fifteen days in violation of Petitioner's Fourteenth Amendment rights, (5) his trial counsel provided ineffective assistance of counsel when she failed to inform Petitioner of his right to testify at his trial in violation of his Sixth and Fourteenth Amendment rights, and (6) the facts make a colorable showing of actual innocence. Id. at 6-61.

         Respondent argues that the state court's rejection of Petitioner's insufficiency of the evidence claim was reasonable and that claims two through six should be rejected as untimely. Answer at 10, 13. Respondent alternatively argues that the state court's rejection of claims two through six was reasonable. Id. at 7, 13-24.

         A. Insufficient Evidence

         Petitioner alleges that there was insufficient evidence of implied malice as required for second degree murder in violation of his Fourteenth Amendment rights. FAP at 6.

         Petitioner presented his first claim to the California Court of Appeal. Lodgment 3. The court of appeal affirmed the findings of the trial court in a reasoned opinion. Lodgment 5. The court stated:

Romero argues there was insufficient evidence to support his second degree murder conviction. Specifically, he contends the record does not support a finding of implied malice because the facts show he waited six hours after his last drink before attempting to drive from Fullerton to San Diego. We reject this argument.
When a defendant challenges the sufficiency of the evidence to support his conviction, we examine the entire record in the light most favorable to the judgment to determine whether it contains substantial evidence from which the jury could find the defendant guilty beyond a reasonable doubt. (People v. Johnson (1980) 26 Cal.3d 557, 576, 578.) We must presume in support of the judgment the existence of every fact the trier of fact could reasonably deduce from the evidence. (People v. Kraft(2000) 23 Cal.4th 978, 1053.) Unless it is clearly shown that "on no hypothesis whatever is there sufficient substantial evidence to support the verdict, " we will not reverse. (People v. Hicks(l982) 128 Cal.App.3d 423, 429.) If the circumstances, plus all the logical inferences the jury might have drawn from them, reasonably justify the jury's ...

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