Flores v. Hickman

533 F.Supp.2d 1068

Manuel FLORES, aka Manuel Gutierrez Flores, Petitioner, v. Roderick HICKMAN, et al., Respondents.

No. CV 06-4299-RSWL(RC).

United States District Court, C.D. California.

January 25, 2008.

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Manuel Flores, Imperial, CA, Pro se.

Verna Wefald, Verna Wefald Law Offices, Pasadena, CA, for Petitioner.

Corey J. Robins, Office of Attorney General of California, Los Angeles, CA, for Respondents.

ORDER ADOPTING AMENDED REPORT AND RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE

RONALD S.W. LEW, Senior District Judge.

Pursuant to 28 U.S.C. Section 636, the Court has reviewed the Petition and other papers along with the attached Amended Report and Recommendation of United States Magistrate Judge Rosalyn M. Chapman, as well as petitioner's objections, and has made a de novo determination.

IT IS ORDERED that (1) the Amended Report and Recommendation is approved and adopted; (2) the Amended Report and Recommendation is adopted as the findings of fact and conclusions of law herein; and (3) Judgment shall be entered denying the petition and dismissing the action with prejudice:

IT IS FURTHER ORDERED that the Clerk shall serve copies of this Order, the Magistrate Judge's Amended Report and Recommendation and Judgment by the United States mail on the parties.

JUDGMENT

IT IS ADJUDGED that the petition for writ of habeas corpus is denied and the action is dismissed with prejudice.

AMENDED REPORT AND RECOMMENDATION OF A UNITED STATES MAGISTRATE JUDGE

ROSALYN M. CHAPMAN, United States Magistrate Judge.

This Amended Report and Recommendation¹ is submitted to the Honorable Ronald S.W. Lew, Senior United States District Judge, by Magistrate Judge Rosalyn M. Chapman, pursuant to the provisions of 28 U.S.C. § 636 and General Order 05-07 of the United States District Court for the Central District of California.

BACKGROUND

I

On November 17, 2003, in Los Angeles County Superior Court case no. BA249759, a jury convicted petitioner Manuel Flores, aka Manuel Gutierrez Flores, of one count of possession of a controlled substance in violation of California Health and Safety Code ("H.S.C.") § 11350(a) (count 4); however, the jury could not reach a unanimous verdict on the other charges against petitioner for attempted murder in violation of California Penal Code ("P.C.") §§ 664/187(a) (count 1), assault with a firearm in violation of P.C. § 245(a)(2) (count 2), carrying a loaded firearm in violation of P.C. § 12031(a)(2)(f) (count 3), and destroying evidence in violation of P.C. § 135 (count 5), and the trial court declared a mistrial as to those counts. Clerk's Transcript ("CT") 45-48, 164-68. On February 27; 2004, after a second trial, a jury convicted petitioner of counts 2 and 3, and as to count 2, the jury found petitioner personally inflicted great bodily injury upon Tameka Jackson within the meaning of P.C. § 12022.7(a) and petitioner personally used a firearm within the meaning of P.C. § 12022.5(a); however, once again, the jury could not reach a verdict on count 1.² CT 278-84.

On March 11, 2004, petitioner was sentenced on count 2 to the upper term of 4 years, plus 3 years under P.C. § 12022.7(a) and 10 years under P.C. § 12022.5(a), and on counts 3 and 4 to the upper term of 3 years on each count, to run concurrently, for the total term of 17 years in state prison. CT 285-89. In addition, the court ordered petitioner to make restitution to Tameka Jackson under P.C. § 1202.4(f) in the amount of $10,000.00. CT 286.

The petitioner appealed his convictions and sentence to the California Court of Appeal, which affirmed the judgment in an unpublished opinion filed June 8, 2005. Lodgments B-D. The petitioner then filed a petition for review in the California Supreme Court, which, on August 17, 2005, denied review "without prejudice to any relief to which [petitioner] might be entitled upon the finality of People v. Black (2005) 35 Cal.4th 1238, 29 Cal.Rptr.3d 740, 113 P.3d 534 regarding the effect of Blakely v. Washington (2004) 542 U.S. [296], 124 S.Ct. 2531, and United States v. Booker (2005) 543 U.S. [220], 125 S.Ct. 738, on California law." Lodgments E-F.

II

The California Court of Appeal, in affirming petitioner's convictions and sentence, made the following underlying factual findings:³ Sometime after 6:00 a.m. on June 16, 2003, in Los Angeles, petitioner and a friend of Tameka Jackson's were fighting. The petitioner jumped at Jackson as if he were going to hit her, and another friend intervened. The parties subsequently dispersed.

Later, petitioner rode a bicycle to Jackson's location, pulled a gun from his waistband, and shot her in the face. About that time, Los Angeles Police Officer Joe Galindo was at the Greyhound Bus terminal in downtown Los Angeles when he heard a shot, looked in the direction of the sound, and saw several people pointing toward petitioner and indicating he had just shot someone. The petitioner was wearing a Pendleton jacket.

Galindo saw petitioner put a gun in his waistband, and Galindo pursued him. A man in a blue van drove Galindo during part of the pursuit. A man carrying a pipe in his hand, and a woman, also chased petitioner. The man carrying the pipe later told Galindo that petitioner was next to a trailer, and Galindo saw petitioner, still wearing the jacket, crouched behind a trailer. Galindo told petitioner to come out with his hands up, but petitioner fled into a warehouse and escaped. The warehouse was about two and a half blocks from the bus terminal.

About 6:00 a.m. on the above date, Jaime Pena was working at the warehouse when petitioner, wearing the Pendleton jacket, entered and asked if there were an exit in the back. Pena and others told petitioner to leave. Petitioner went, upstairs, returned, and put on Pena's nearby jacket. The Pendleton jacket was later found in the warehouse.

About 6:00 a.m. on the above date, Melvin Carter called 911 from a telephone on Seventh Street and said that a young Mexican male had just shot a Black girl between Mills and Alameda "in front of the Greyhound." The dispatcher asked what the shooter was wearing, and Carter stated "[a] white — a ... with a shirt with a stripes and black pants. He was riding a bike, but we ... got the bike." Carter also said the shooter ran between trucks, and that Galindo was following in a turquoise van. Carter helped direct emergency vehicles to the scene.

On June 19, 2003, petitioner was in a tent near Santa Fe and Fourth Street. The petitioner left and began riding a bicycle. However, when petitioner saw police officers, he fled on foot, discarded cocaine base, and was arrested.

III

On July 7, 2006, petitioner, proceeding pro se, filed the pending, petition for writ of habeas corpus under 28 U.S.C. § 2254, and on August 30, 2006, respondent filed an answer. On September 15, 2006, petitioner filed a reply or traverse.

The petitioner raises the following claims in his habeas corpus petition:

Ground One — "The imposition of an upper term sentence violated Blakely v. Washington and U.S. Constitution 6th Amend. (Right to jury) and 14th Amend. (Due Process)." (Petition at 6).⁴

Ground Two — The trial court's "[e]rroneous admission of hearsay testimony violated the confrontation clause of the 6th Amend. to the U.S. Constitution." (Id.)

Ground Three — "Restitution Fine violates the Due Process Clause of the 14th Amend. of the U.S. Constitution." (Petition at 7).

DISCUSSION

IV

The Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA") "circumscribes a federal habeas court's review of a state court decision." Lockyer v. Andrade, 538 U.S. 63, 70, 123 S.Ct. 1166, 1172, 155 L.Ed.2d 144 (2003); Wiggins v. Smith, 539 U.S. 510, 520, 123 S.Ct. 2527, 2534, 156 L.Ed.2d 471 (2003). As amended by AEPA, 28 U.S.C. § 2254(d) provides:

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). Further, under AEDPA, a federal court shall presume a state court's determination of factual issues is correct, and petitioner has the burden of rebutting this presumption by clear and convincing evidence. 28 U.S.C. § 2254(e)(1).

The California Supreme Court reached the merits of petitioner's claims when it denied his petition for review without comment or citation to authority. Gaston v. Palmer, 417 F.3d 1030, 1038 (9th Cir.2005), amended by, 447 F.3d 1165 (9th Cir.2006), cert. denied, ___ U.S. ___, 127 S.Ct. 979, 166 L.Ed.2d 742 (2007); Hunter v. Aispuro, 982 F.2d 344, 348 (9th Cir. 1992), cert. denied, 510 U.S. 887, 114 S.Ct. 240, 126 L.Ed.2d 194 (1993). "Where there has been one reasoned judgment rejecting a federal claim, later unexplained orders upholding that judgment or rejecting the same claim rest upon the same ground." Ylst v. Nunnemaker, 501 U.S. 797, 803, 111 S.Ct. 2590, 2594, 115 L.Ed.2d 706 (1991); Medley v. Runnels, 506 F.3d 857, 862 (9th Cir.2007) (en banc). Thus, in addressing petitioner's claims, this Court will consider the reasoning of the California Court of Appeal, which issued a written decision addressing them. Parle v. Runnels, 505 F.3d 922, 926 (9th Cir.2007); Edwards v. Lamarque, 475 F.3d 1121, 1126 (9th Cir.2007) (en banc), cert. denied, ___ U.S. ___, 128 S.Ct. 532, 169 L.Ed.2d 371 (2007).

V

In Ground One, petitioner claims the trial court violated Blakely v. Washington, 542 U.S. 296, 124 S.Ct. 2531, 159 L.Ed.2d 403 (2004), and petitioner's Sixth and ...