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Solorzano v. Holland

United States District Court, S.D. California

July 16, 2019

JESUS SOLORZANO, Plaintiff,
v.
KIMBERLY HOLLAND, Warden, Defendant.

          ORDER: (1) ADOPTING THE REPORT AND RECOMMENDATION (DOC. NO. 25), AND (2) DISMISSING PETITIONER'S WRIT OF HABEAS CORPUS (DOC. NO. 1)

          HON. ANTHONY J. BATTAGLIA, UNITED STATES DISTRICT JUDGE

         Before the Court is Petitioner Jesus Solorzano's petition for Writ of Habeas Corpus. (Doc. No. 1.) In the Report and Recommendation (“R&R”), the Magistrate Judge recommended denying Solorzano's federal petition for writ of habeas corpus brought under 28 U.S.C. § 2254. (Doc. No. 25.) For the reasons stated herein, the Court ADOPTS the R&R and DENIES Solorzano's writ of habeas corpus.

         I. PROCEDURAL BACKGROUND

         On September 20, 2013, a jury found petitioner guilty of various crimes. (Doc. No. 1 at 2.) Petitioner was sentenced to an aggregate term of 114 years in state prison, where he is currently incarcerated. (Id.)

         Petitioner timely appealed the judgment of conviction to the California Court of Appeal arguing the trial court erred in failing to instruct on lesser included offenses (“LIO”). (Doc. No. 17-27.) The court affirmed petitioner's conviction finding, even though the charged crimes did include the LIOs, the record lacked the substantial evidence that would give rise to a sua sponte duty to give instructions on the LIOs and the failure of the trial court to give LIO instructions did not prejudice defendant. (Doc. No. 17-30 at 12, 17- 18.) Petitioner filed a Petition for Rehearing with the California Court of Appeal, (Doc. No. 17-31), which was denied, (Doc. No. 17-32).

         Petitioner further appealed the judgment of conviction to the California Supreme Court arguing the trial court's error in failing to instruct on lesser included offenses was prejudicial and the instructional error denied petitioner due process. (Doc. No. 1, at 4; see also Doc. No. 17-33.) Petitioner's Petition for Review was summarily denied without discussion. (Doc. No. 17-34.)

         Petitioner filed a Petition for Writ of Habeas Corpus with the California Supreme Court. (Doc. No. 17-35.) Petitioner also filed the operative Petition for Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254 challenging his state conviction, (Doc. No. 1), and applied for a stay and abeyance of federal court proceedings pending resolution of the state habeas petition before the California Supreme Court, (Doc. No. 2). Before Petitioner's application for stay and abeyance could be considered, the California Supreme Court denied Petitioner's state habeas petition. (Doc. No. 12 at 1-2.) Accordingly, Judge Sabraw denied as moot petitioner's application for stay and abeyance of the federal habeas petition. (Doc. No. 12.)

         Magistrate Judge Crawford submitted the operative R&R directing judgment be denied against Solorzano. (Doc. No. 25.) Solorzano objected. (Doc. No. 29.) At all relevant times, petitioner was represented by counsel. (See Doc. No. 1 at 14.)

         As stated in the R&R, “Petitioner's operative federal habeas Petition contains one unexhausted claim that, ‘[p]etitioner was denied his Sixth Amendment right to counsel when his trial attorney misdirected the trial court on the law and his trial was unfair and violated Due Process and the 14th Amendment.'[Citation.]” (Doc. No. 25 at 5-6; see also Doc. No. 1 at 6.)

         II. FACTUAL BACKGROUND

         The factual background of the underlying conviction, as summarized in the unpublished California Court of Appeal opinion in petitioner's direct appeal of the judgment of conviction, is quoted in Magistrate Judge Crawford's R&R. (Doc. No. 25 at 2-4.) The Court fully incorporates by reference that factual background section of the R&R into this Order.

         In addition, to support his state habeas petition, petitioner submitted a declaration from his trial counsel, C. Bradley Patton, where Mr. Patton stated he “was unaware the non-forcible offenses were lesser included offenses[, ]” and not just lesser related offenses, and that his “failure to discover the fact that the non-forcible offenses were included offenses was merely the product of inadvertence and not by design nor undisclosed intention.” (Doc. No. 17-35 at 64, 66.) Petitioner now seeks federal habeas relief on the ground that he was denied ineffective assistance of counsel evidenced by the alleged error by his counsel in violation of the Sixth Amendment.

         III. LEGAL STANDARDS

         A. Scope of Review of the Report and Recommendation

         The duties of the district court with respect to a magistrate judge's R&R are set out in Federal Rule of Civil Procedure 72(b) and 28 U.S.C. § 636(b)(1). The district court must “make a de novo determination of those portions of the report . . . to which objection is made” and “may accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate judge.” 28 U.S.C. § 636(b)(1); see ...


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