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Batton v. Lizarraya

United States District Court, E.D. California

July 15, 2019

MARIO BATTON, Petitioner,
v.
JOE LIZARRAYA,[1] Respondent.

          FINDINGS AND RECOMMENDATIONS

          DENNIS M. COTA UNITED STATES MAGISTRATE JUDGE

         Petitioner, a state prisoner proceeding pro se, brings this petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. Pending before the court is respondent's motion to dismiss (ECF No. 14). Also before the court is petitioner's motion for resentencing (ECF No. 11).

         I. BACKGROUND

         A. State Court Proceedings

         Petitioner was convicted on August 2, 2012, in the Sacramento County Superior Court and sentenced on September 14, 2012, to a term of 18 years in state prison. See ECF No. 1, pg. 2. The California Court of Appeal affirmed the conviction and sentence on November 20, 2015. See id. at 9. The California Supreme Court declined direct review on January 29, 2016. See id. Petitioner filed a single state post-conviction action in the Sacramento County Superior Court on September 24, 2018, see ECF No. 15-5, which was denied on November 29, 2018, see ECF No. 15-6. Citing Alexander v. Louisiana, 405 U.S. 625, 633 (1972), the state court rejected petitioner's claim that his conviction was void because the lack of a grand jury indictment deprived the trial court of jurisdiction. See ECF No. 15-6. The court concluded the grand jury indictment requirement does not apply to the states. See id.

         B. Prior Federal Habeas Corpus Action

         Petitioner filed a prior habeas corpus action in this court challenging the same conviction and sentence, Batton v. Paramo, E. Dist. Cal. No. 16-CV-0762-JKS (Batton I). See id. at 10. In Batton I, petitioner argued: (1) the trial court abused its discretion and violated his Fifth Amendment rights against self-incrimination by overruling his objection to the prosecutor's cross-examination and by allowing collateral rebuttal testimony; (2) the trial court abused its discretion and deprived him of due process and a fair trial by admitting his two prior convictions for residential burglary; (3) the prosecutor committed misconduct by asking questions and making arguments that went to propensity and bad character; and (4) the cumulative effect of the various errors warrants reversal. See ECF No. 28 in Batton I. The petition was denied on the merits on March 8, 2018. See id. Petitioner did not appeal.

         C. Current Federal Habeas Corpus Action

         Petitioner filed the instant action on January 2, 2019, also challenging the 2012 conviction and sentence. See ECF No. 1. Petitioner raises two grounds for relief:

         Ground 1 The Municipal Metropolitan Corporation and its agents, without subject matter jurisdiction, applied its colorable, statutes, laws, and codes to fraudulently operate upon petitioner, in violation of the United States Constitution, Articles IV and VI and United States Constitution, Amendments 5th and 14th by holding petitioner against his will and without his consent, to answer for a capital or otherwise infamous crime without a presentment or indictment handed down by a grand jury.

         Ground 2 Petitioner is unlawfully suffering involuntary servitude/slavery without having been duly convicted on charges brought on a presentment or indictment handed down by a grand jury, in violation of petitioner's privileges and immunities and rights guarantee by the United States Constitution secured by the IV and VI articles and 5th, 13thand 14th amendments.

         Id. at 3, 8.

         Petitioner asserts these grounds for relief were “not raised by counsel on appeal due to ineffectiveness. . . .” Id. at 9.

         II. ...


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