(HC) Garcia v. Burton

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8 UNITED STATES DISTRICT COURT

9 FOR THE EASTERN DISTRICT OF CALIFORNIA

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11 EDWARD VALASQUEZ GARCIA, No. 2:19-cv-0296 WBS KJN P

12 Petitioner,

13 v. FINDINGS AND RECOMMENDATIONS

14 ROBERT BURTON,

15 Respondent.

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17 I. Introduction

18 Petitioner is a state prisoner, proceeding in forma pauperis and without counsel. Petitioner

19 filed a petition for writ of habeas corpus under 28 U.S.C. § 2254, raising two claims for relief.

20 First, petitioner claims that the trial court abused its discretion in refusing to strike his prior

21 conviction under People v. Romero, 13 Cal.4th 497 (1996) (“Romero”). Second, petitioner

22 alleges that the trial court’s restitution order was not supported by sufficient evidence.

23 Respondent moves to dismiss the petition on the grounds that petitioner did not exhaust his state

24 court remedies as to claim one, but also fails to state a valid claim for federal habeas relief as to

25 both claims one and two. Petitioner filed an opposition and moves to stay this action to return to

26 state court to exhaust claim one. Respondent filed a reply, and opposes the stay.

27 As set forth below, the undersigned recommends that the motion to dismiss be granted,

28 the motion for stay be denied, and the petition be dismissed.

1 II. Procedural Background

2 On October 15, 2015, in the Placer County Superior Court, a jury convicted petitioner of

3 two counts of assault with a deadly weapon in violation of California Penal Code Section

4 245(a)(1), and a number of sentencing enhancement allegations were found true. (ECF No. 10-1

5 at 1.) Petitioner was sentenced to a determinate state prison term of fifteen years on April 20,

6 2016. (Id.)

7 Petitioner filed a timely appeal, and the California Court of Appeal affirmed the judgment

8 on September 25, 2017. (ECF No. 10-2.) Petitioner filed a petition for review in the California

9 Supreme Court, which was denied on November 29, 2017, without comment. (ECF Nos. 10-3,

10 10-4.)1

11 Petitioner filed the instant petition on February 15, 2019. (ECF No. 1.)

12 III. Facts

13 In its unpublished memorandum and opinion affirming petitioner’s judgment of

14 conviction on appeal, the California Court of Appeal for the Third Appellate District provided the

15 following factual summary:

16 During a street brawl, [petitioner] stabbed two victims a total of nine

times. Much of the incident was captured on video.

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The Stabbings

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In early 2013, [petitioner] and three friends went to a bar in Roseville.

19 There, defendant drank a rum and Coke -- his only drink that night;

he was not drunk.

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In the bar, some of [petitioner’s] friends got in a scuffle with a group

21 of African-Americans. A few punches were exchanged. Bar security

told the group of African-Americans to leave.

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Sometime later, [petitioner’s] group decided to leave the bar.

23 Outside, they came across the group they had quarreled with, along

with others. One of [petitioner’s] friends was punched by a man in a

24 blue shirt.

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1 Petitioner filed no post-conviction collateral challenges to the pertinent 2016 judgment in the

27 California Supreme Court. Respondent did not lodge copies of two petitions for writ of habeas

corpus filed in the Placer County Superior Court because they were not required to address the

28 motion to dismiss. (ECF No. 8 at 2 n.1.)

1 Another of [petitioner’s] friends started fighting the man in the blue

shirt. [Petitioner’s] friend had managed to get the better of the man

2 (he was pummeling him from atop), when the two victims came out

of the bar.

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The two victims had each consumed about six beers. One of the

4 victims was quite tall. The shorter of the two victims heard the man

in the blue shirt call for help. The victim pushed (or “pried”)

5 [petitioner’s] friend off the man. After he did, one of [petitioner’s]

friends punched the shorter victim in the face. The shorter victim and

6 that friend began fighting.

7 [Petitioner] involved himself in the fight. At one point, the taller

victim grabbed [petitioner] by the jacket and flung him away from

8 the shorter victim who was still fighting [petitioner’s] friend.

9 The fight between the shorter victim and [petitioner’s] friend moved

to the opposite sidewalk. The victim punched [petitioner’s] friend,

10 while the taller victim stood behind him.

11 [Petitioner] ran up and, using a small box cutter knife, stabbed both

victims from behind, in rapid succession. He stabbed the taller victim

12 once in the lower back and the shorter victim three times in the side.

Then he grabbed his friend and left.

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[Petitioner] apparently had also stabbed both victims at an earlier

14 point in the brawl. The shorter victim was stabbed a total of seven

times, and the taller victim was stabbed twice. Both victims suffered

15 a collapsed lung. And neither victim ever struck [petitioner] during

the brawl.

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[Petitioner] and his friends were apprehended, in a car, about a mile

17 and a half from the bar. At trial, [petitioner] did not recall what

happened to the knife. He testified he had the knife when he got into

18 the car, after leaving the brawl, but did not have the knife after his

arrest when he was taken to jail.

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Verdict, Sentencing, and the Romero Motion

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A jury convicted [petitioner] of two counts of assault with a deadly

21 weapon and as to each found he had inflicted great bodily injury.

[Petitioner] admitted to a 1995 strike conviction for discharging a

22 firearm. (Pen. Code, § 246.3.)[FN2]

23 Prior to sentencing, [petitioner] moved to strike his prior strike. The

trial court denied the motion. It noted the strike occurred when

24 [petitioner] was 18; while angry and intoxicated, [petitioner] shot a

gun into the air.

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The court further noted, in 1998, [petitioner] was arrested for driving

26 under the influence (DUI) and placed on probation. The next year,

he was arrested for a second DUI and sentenced to 10 days in jail and

27 placed on probation. While on probation, he committed another

felony, possessing methamphetamine for sale. He was denied

28 probation and sentenced to prison for 32 months. [Petitioner],

1 however, had a nine-year period of being a good father (as reflected

in the numerous letters in support) and a productive member of

2 society (raising three children, coaching soccer, & giving to charity).

3 As to the current offense, the court noted the nature of the offense,

the multiple stabbing, the disposal of the weapon, and [petitioner’s]

4 leaving the scene while those left behind were seriously injured. It

concluded, given his history and age, [petitioner] fell within the spirit

5 of the three strikes law. The court imposed a 15-year aggregate term.

6 At sentencing the prosecutor informed the court the state had paid

$19,510.69 for the victims’ medical expenses. It added: “There’s

7 been no stipulation. I’m asking, if there’s no stipulation, [can we]

reserve and set a hearing for that.”

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The court clarified, “are you requesting the Court to order a certain

9 amount of restitution or order it reserved?” The prosecutor

responded: “I’m requesting the Court order $19,510.69 payable to

10 the Victim’s Compensation and Government Claims Board to

reimburse the amount they’ve paid out.” He added: “I sent some

11 information to the defense by way of e-mail.”

12 Defense counsel responded: “. . . I acknowledge the fact that

[petitioner’s] going to be obligated to pay back the victims

13 [compensation board] . . . . I would have question as to the legitimacy

of the lost wages, and I would suggest that that be set for a hearing .

14 . . .”

15 The trial court ordered defendant to pay $19,510.69 to the California

Victim Compensation and Government Claims Board (the board).

16 And it ordered restitution to the victims in an amount to be

determined in a future restitution hearing.

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FN2: Undesignated statutory references are to the Penal Code.

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19 (People v. Garcia, C082134 (3rd Dist. Cal.) (Sept. 25, 2017) (ECF No. 10-2 at 2-4.)

20 IV. Motion to Dismiss

21 Rule 4 of the Rules Governing Section 2254 Cases allows a district court to dismiss a

22 petition if it “plainly appears from the face of the petition and any exhibits annexed to it that the

23 petitioner is not entitled to relief in the district court. . . .” Id. The Court of Appeals for the Ninth

24 Circuit has referred to a respondent’s motion to dismiss as a request for the court to dismiss under

25 Rule 4 of the Rules Governing § 2254 Cases. See, e.g., O’Bremski v. Maass, 915 F.2d 418, 420

26 (1991). Accordingly, the court reviews respondent’s motion to dismiss pursuant to its authority

27 under Rule 4.

28 ////

1 A. First Claim

2 In his first claim, petitioner alleges that the trial court abused its discretion in refusing to

3 strike his prior conviction under People v. Romero, 13 Cal.4th 497 (1996) (“Romero”).

4 1. Is the Claim Exhausted?

5 Respondent argues that such claim was not presented to the California Supreme Court and

6 therefore is not exhausted. As noted above, petitioner seeks to stay this action and return to state

7 court to exhaust this claim, thus conceding that this claim is not exhausted.

8 The exhaustion of state court remedies is a prerequisite to the granting of a petition for

9 writ of habeas corpus. 28 U.S.C. § 2254(b)(1).

10 As noted by the parties, petitioner’s first claim was not presented to the California

11 Supreme Court, and there is no allegation that state court remedies are no longer available to

12 petitioner. Thus, petitioner’s first claim is not exhausted. Nevertheless, a petition may be denied

13 on the merits without exhaustion of state court remedies. 28 U.S.C. § 2254(b)(2).

14 2. Is the Claim Cognizable?

15 In addition to claiming that the trial court abused its discretion in refusing to strike

16 petitioner’s prior conviction, petitioner alleges the decision violated his due process rights. (ECF

17 No. 1 at 5.) Petitioner appended the opening statement filed by appellate counsel on direct

18 appeal, in which appellate counsel relied solely on California state law. (ECF No. 1 at 27-33.) In

19 his opposition, petitioner also claims that the denial of his Romero motion violated the Fourth,

20 Sixth and Eighth Amendments, but without any explanation or legal authority. (ECF No. 14 at 2-

21 3.) Respondent argues that petitioner’s first claim fails to raise a federal question, and should be

22 dismissed.

23 a. State Court’s Last Reasoned Decision

24 The state court of appeal denied petitioner’s Romero claim on direct appeal:

25 The Trial Court Properly Denied the Romero Motion

26 On appeal, [petitioner] contends the trial court abused its discretion

in denying his Romero motion. He argues his prior strike is

27 “ancient,” occurring in 1994, when he was 18, drunk, angry, and

suicidal. To his current offense, he avers it was unplanned, it

28 occurred in a chaotic situation, and he mistakenly believed force was

1 necessary to prevent serious injury to his friends.

2 He adds, he came from a troubled childhood: his stepfather regularly

beat him. His past offenses were mostly sustained as a juvenile. He

3 has only one parole violation. He was married and has three children.

He has a good work history, and he received 41 letters in support

4 from family and friends. He concludes this places him outside the

three strikes law. We disagree.

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The three strikes sentencing scheme applies where the defendant has

6 at least one qualifying strike, unless the trial court concludes an

exception should be made. (People v. Carmony (2004) 33 Cal.4th

7 367, 377 (Carmony).) A trial court properly exercises its discretion

in striking a strike only if it finds “in light of the nature and

8 circumstances of his present felonies and prior serious and/or violent

felony convictions, and the particulars of his background, character,

9 and prospects,” the defendant falls outside three strikes’s spirit and

should be treated as though he had not committed the prior strike.

10 (People v. Williams (1998) 17 Cal.4th 148, 161.)

11 When a trial court declines to strike a strike, we review that decision

for abuse of discretion. (Carmony, supra, 33 Cal.4th at pp. 374-375.)

12 We will not reverse “unless its decision is so irrational or arbitrary

that no reasonable person could agree with it.” (Id. at p. 377.) Where

13 the court, aware of its discretion, “‘balanced the relevant facts and

reached an impartial decision in conformity with the spirit of the law,

14 we shall affirm the . . . ruling, even if we might have ruled differently

. . . .’” (Id. at p. 378.)

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Here, the trial court properly exercised its discretion in denying the

16 Romero motion. The court considered the nature of [petitioner’s]

present felony, his prior convictions, and his background and

17 prospects. While [petitioner] had nine years of being a good father

and productive member of society, the violent nature of his current

18 offense along with his other offenses support the trial court's exercise

of discretion.[FN3]

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FN3: [Petitioner], nevertheless, maintains remand is required

20 because the trial court “never stated that one of its considerations was

that the prior ‘strike’ weighed little due to its remoteness.” Not so.

21 The court acknowledged the prior strike occurred “back in 1995.”

Moreover, the court need not articulate every factor. (See In re Coley

22 (2012) 55 Cal.4th 524, 560 [“although a trial court is required to state

on the record its reasons for striking a prior conviction . . ., there is

23 no similar statutory requirement of an on-the-record statement of

reasons when a court declines to strike a prior”].)

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25 People v. Garcia, ECF No. 10-2 at 4-6.

26 b. Governing Standards

27 Federal habeas corpus relief may be granted “only on the ground that [petitioner] is in

28 custody in violation of the Constitution or laws or treaties of the United States.” 28 U.S.C.

1 § 2254(a). Mere errors in the application of state law are not cognizable on federal habeas

2 review. Estelle v. McGuire, 502 U.S. 62, 67-68 (1991); see also Wilson v. Corcoran, 562 U.S. 1,

3 5 (2010) (per curiam) (“it is only noncompliance with federal law that renders a State’s criminal

4 judgment susceptible to collateral attack in the federal courts”); Hendricks v. Vasquez, 974 F.2d

5 1099, 1105 (9th Cir. 1992) (“Federal habeas will not lie for errors of state law”). Petitioner may

6 not “transform a state law issue into a federal one merely by asserting a violation of due process.”

7 Langford v. Day, 110 F.3d 1380, 1389 (9th Cir.), cert. denied, 522 U.S. 881 (1997).

8 c. Discussion

9 Petitioner’s federal habeas challenge to the trial court’s denial of his motion under

10 Romero essentially involves an interpretation of state sentencing law. “It is not the province of a

11 federal habeas court to reexamine state court determinations on state law questions.” Wilson, 562

12 U.S. at 5 (quoting Estelle, 502 U.S. at 67). More specifically, a trial court’s refusal to strike a

13 prior conviction under Romero does not give rise to any cognizable claim for federal habeas

14 relief. Brown v. Mayle, 283 F.3d 1019, 1040 (9th Cir. 2002), vacated on other grounds, 538 U.S.

15 901 (2003). “The district court correctly concluded that this state law claim is not cognizable on

16 federal habeas review.” Brown, 283 F.3d at 1040; see also Rascon v. Valenzuela, 2017 WL

17 5484066, at *4 (E.D. Cal. Nov. 15, 2017) (“Whether or not the trial court correctly used its

18 discretion in denying petitioner’s Romero motion is a matter of state, not federal, law”) (citation

19 omitted); Clements v. Rackley, 2017 WL 1129948, at *11 (C.D. Cal. Feb. 13, 2017), adopted,

20 2017 WL 1115149 (C.D. Cal. Mar. 24, 2017) (“A California state trial court’s refusal to grant a

21 Romero motion, or to strike a defendant’s prior conviction that will be used to enhance a

22 defendant’s sentence under California’s Three Strikes Law, does not present constitutional

23 violations that warrant federal habeas relief.”) (citations omitted).

24 Petitioner did not include an Eighth Amendment challenge in his petition, but argues that

25 the denial of the Romero motion also violated his Eighth Amendment rights. (ECF No. 14 at 3.)

26 To the extent petitioner argues that his sentence violates the Eighth Amendment because of the

27 application of the Three Strikes Law, such argument fails. The Supreme Court has held that state

28 recidivist statutes, including California’s Three Strikes Law, are constitutional, and do not violate

1 the Eighth Amendment’s prohibition on cruel and unusual punishment. Ewing v. California, 538

2 U.S. 11, 29-30 (California’s Three Strikes Law constitutional; upholding sentence of 25 years-to-

3 life for recidivist convicted of grand theft); see also Lockyer v. Andrade, 538 U.S. 63, 75 (2003)

4 (affirmed Three Strikes sentences of two consecutive 25 years-to-life imprisonment terms for two

5 convictions for petty theft of less than $200.00 worth of videotapes each, with prior conviction);

6 Rummel v. Estelle, 445 U.S. 263, 284-85 (1980) (upholding life sentence with possibility of

7 parole under Texas recidivist statute for recidivist convicted of fraudulent use of credit card for

8 $80.00, passing forged check for $28.36, and obtaining $120.75 under false pretenses).

9 In his opposition, petitioner also makes vague and unsupported references to violations of

10 the Fourth and Sixth Amendments, but fails to explain how he believes the trial court’s denial of

11 the Romero motion violated such constitutional rights or to provide any legal authority in support

12 of such theory. (ECF No. 14 at 2.) Such vague and conclusory references do not warrant relief,

13 particularly in light of the authorities discussed above. See, e.g., Langford, 110 F.3d at 1389.

14 Accordingly, respondent’s motion to dismiss petitioner’s first claim should be granted.

15 B. Second Claim

16 In his second claim, petitioner alleges that the order requiring payment of restitution to the

17 victim was not supported by sufficient evidence because the victim did not submit medical bills.

18 Respondent contends that petitioner’s claim is not cognizable on federal habeas and should be

19 dismissed. (ECF No. 8 at 5.)

20 The state Court of Appeals denied petitioner’s challenge to the restitution order, noting

21 that the record reflected that “the parties stipulated to the $19,510.69 amount.” People v. Garcia,

22 ECF No. 10-2 at 6. Moreover, even if the parties had not stipulated, the state Court of Appeals

23 found that petitioner’s challenge was “forfeited by defense counsel’s failure to challenge the

24 restitution order at sentencing.” Id., ECF No. 10-2 at 7.

25 The federal writ of habeas corpus is only available to persons “in custody” at the time the

26 petition is filed. 28 U.S.C. §§ 2241(c), 2254(a); Carafas v. LaVallee, 391 U.S. 234, 238 (1968).

27 This requirement is jurisdictional. Id. The Ninth Circuit has explicitly held that “an attack on a

28 restitution order is not an attack on the execution of a custodial sentence . . . [Thus,] § 2254(a)

1 does not confer jurisdiction over a challenge to a restitution order.” Bailey v. Hill, 599 F.3d 976,

2 983 (9th Cir. 2010) (citing United States v. Kramer, 195 F.3d 1129 (9th Cir. 1999)). “[T]he

3 remedy that [petitioner] seeks, the elimination or alteration of a money judgment, does not

4 directly impact -- and is not directed at the source of the restraint on -- his liberty.” Bailey, 599

5 F.3d at 981. A federal court, then, lacks jurisdiction to hear claims that challenge the money

6 portion of a state judgment, such as a restitution order, which does not affect the duration of

7 custody. Id.; see also Williamson v. Gregoire, 151 F.3d 1180, 1183 (9th Cir. 1998) (stating that

8 imposition of fine is “merely a collateral consequence of conviction” and, as such, is not

9 sufficient to establish federal habeas jurisdiction).

10 Because the petitioner’s second claim challenges only the restitution portion of

11 petitioner’s sentence, the “custody” requirement of Section 2254(a) is not satisfied and the court

12 does not have jurisdiction to entertain such claim.

13 C. Motion for Stay

14 Petitioner also filed a motion for stay under Rhines v. Weber, 544 U.S. 269 (2005).

15 Petitioner contends that his appointed appellate counsel failed to include petitioner’s Romero

16 claim in the petition for review and did not inform petitioner. (ECF No. 15 at 2.) Petitioner states

17 he was not aware of such omission until the respondent filed the instant motion to dismiss, and

18 therefore petitioner should be granted a stay so that he may return to state court and exhaust his

19 first claim for relief.

20 Respondent counters that petitioner fails to demonstrate that (1) he has good cause for the

21 stay under Rhines, (2) the unexhausted claim is potentially meritorious, or (3) petitioner has not

22 intentionally engaged in dilatory tactics. (ECF No. 16.) Moreover, despite discovering that such

23 claim was not included in the petition for review in respondent’s June 14, 2019 motion to dismiss,

24 respondent argues that petitioner still has not filed a petition for writ of habeas corpus in the

25 California Supreme Court. (ECF No. 16 at 4.)

26 Under Rhines, a district court may, in limited circumstances, stay a mixed petition

27 pending exhaustion of unexhausted claims if: (1) “the petitioner had good cause for his failure to

28 exhaust;” (2) “his unexhausted claims are potentially meritorious;” and (3) “there is no indication

1 that the petitioner engaged in intentionally dilatory litigation tactics.” Rhines, 544 U.S. at 278.

2 The Supreme Court has made clear that this option “should be available only in limited

3 circumstances.” Id. at 277. In order to be granted a stay under Rhines, petitioner must meet all

4 three Rhines prongs set forth above. Id. at 278.

5 1. No Good Cause

6 Plaintiff’s claim that he did not know appellate counsel failed to raise the Romero claim in

7 the petition for review does not demonstrate good cause under Rhines. In Wooten v. Kirkland,

8 540 F.3d 1019 (9th Cir. 2008), the Ninth Circuit ruled that petitioner did not show good cause by

9 arguing that he was “under the impression” that his counsel had raised all claims before the state

10 court of appeal. Wooten, 540 F.3d at 1024. The Ninth Circuit explained that finding good cause

11 in that argument “would render stay-and-abey orders routine” and “would run afoul of Rhines and

12 its instruction that district courts should only stay mixed petitions in ‘limited circumstances.’”

13 Wooten, 540 F.3d at 1024. Therefore, petitioner fails to demonstrate good cause for a stay under

14 Rhines.

15 2. Claim Lacks Merit

16 As discussed above, petitioner cannot demonstrate that his Romero claim has merit on

17 federal habeas review. A federal habeas petitioner must establish that at least one of his

18 unexhausted claims is not ‘plainly meritless’ in order to obtain a stay under Rhines.” Dixon v.

19 Baker, 847 F.3d 714, 722 (9th Cir. 2017), quoting Rhines, 544 U.S. at 277. A claim is “plainly

20 meritless” only if “it is perfectly clear that the petitioner has no hope of prevailing.” Cassett v.

21 Stewart, 406 F.3d 614, 624 (9th Cir. 2005). Because petitioner’s claim that the trial court abused

22 its discretion in denying the Romero motion is not cognizable on federal habeas review, petitioner

23 cannot demonstrate that such claim is potentially meritorious.

24 3. Delay

25 Because petitioner fails to demonstrate the first two prongs of Rhines, the undersigned

26 need not address the third prong of Rhines, and finds that petitioner’s motion for stay should be

27 denied.

28 ////

1 | V. Recommendations

2 Accordingly, IT IS HEREBY RECOMMENDED that:

3 1. Respondent’s motion to dismiss (ECF No. 8) be granted,

4 2. Petitioner’s motion for stay (ECF No. 15) be denied; and

5 3. This action be dismissed.

6 These findings and recommendations are submitted to the United States District Judge

7 | assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(1). Within fourteen days

8 || after being served with these findings and recommendations, any party may file written

9 | objections with the court and serve a copy on all parties. Such a document should be captioned

10 | “Objections to Magistrate Judge’s Findings and Recommendations.” If petitioner files objections,

11 | he shall also address whether a certificate of appealability should issue and, if so, why and as to

12 || which issues. A certificate of appealability may issue under 28 U.S.C. § 2253 “only if the

13 | applicant has made a substantial showing of the denial of a constitutional right.” 28 U.S.C.

14 | § 2253(c)(3). Any response to the objections shall be served and filed within fourteen days after

15 | service of the objections. The parties are advised that failure to file objections within the

16 || specified time may waive the right to appeal the District Court’s order. Martinez v. YIst, 951

17 | F.2d 1153 (9th Cir. 1991).

18 || Dated: November 18, 2019

i Fensbl A Abar

20 KENDALL J. NE

/ew/garc0296.mtd.he UNITED STATES MAGISTRATE JUDGE

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