Olivera-Beritan v. Asuncion

JOSE OLIVERA-BERITAN, Petitioner, v. DEBRA ASUNCION, Warden, Respondent.

Case No. 16cv2646-CAB (PCL)

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF CALIFORNIA

July 24, 2017

REPORT AND RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE RE:

(1) DENYING MOTION FOR AN EVIDENTIARY HEARING AND FOR APPOINTMENT OF COUNSEL, and

(2) DENYING PETITION FOR A WRIT OF HABEAS CORPUS

Jose Olivera-Beritan ("Petitioner") is a state prisoner proceeding pro se with a Petition for a Writ of Habeas Corpus filed pursuant to 28 U.S.C. § 2254. (ECF No. 1.) He challenges his San Diego Superior Court convictions for three counts of first degree murder, two counts of kidnapping for ransom, one count of kidnapping, one count of attempted kidnapping, and one count of conspiracy to commit kidnapping for ransom. (Pet. at 1-3.)¹ The jury returned true findings on three murder special circumstances, as well as firearm use, bodily injury and gang enhancements, and Petitioner was sentenced to fiveconsecutive terms of life without the possibility of parole, plus consecutive terms of 25 years to life and 19 years. (Id.) He claims his federal constitutional rights were violated because there is insufficient evidence apart from uncorroborated accomplice testimony to support all but two of his convictions (claim one); he is not guilty of two murders under the post-conviction decision in People v. Chiu, 59 Cal.4th 155, 167 (2014) (holding that "a defendant cannot be convicted of first degree premeditated murder under the natural and probable consequences doctrine" of aider and abettor liability) (claim two); the admission of hearsay testimony of a statement by his co-defendant violated his right to confrontation (claim three); there was purposeful racial discrimination in jury selection which appellate counsel failed to raise on appeal (claim four); his role in the murders is not sufficiently major to support a sentence of life without the possibility of parole (claim five); he was prejudiced by the denial of his motions for dual juries and severance of his trial from his co-defendant, and he received ineffective assistance of counsel by trial counsel's failure to seek severance of the counts against him and appellate counsel's failure to raise those claims on appeal (claim six); the trial court erred in its evidentiary rulings and discovery orders regarding the gang enhancement evidence (claim seven); the trial court imposed a restitution fine without a determination of his ability to pay, and he received ineffective assistance of trial and appellate counsel by their failure to challenge the fine (claim eight); and his state court habeas petitions were denied on the pretext that he failed to present a prima facie case for relief (claim nine). (Id. at 9-70.)

Respondent has filed an Answer and lodged portions of the state court record. (ECF Nos. 10-11.) Respondent argues that claims one, three, six, seven, eight and nine do not present federal issues, and the state court adjudication of the other claims is not contrary to, and does not involve an unreasonable application of, clearly established federal law. (Memorandum of Points and Authorities in Support of Answer ["Ans. Mem."] at 36-59.)

Petitioner has filed a Traverse. (ECF No. 20.) He argues that: (a) each of his claims presents federal issues, (b) Respondent has lodged and relied on jury voir dire transcripts regarding claim four which were not before the state court, and this Court should eitherignore them, hold an evidentiary hearing, or hold the Petition in abeyance while he returns to state court with those transcripts, and (c) new evidence that a cooperating accomplice witness admitted he committed perjury at trial, which was disclosed by the prosecution after completion of his appeal and state post-conviction review, should be considered in support of his claims, or the Court should hold the Petition in abeyance while he returns to state court with the new evidence. (Traverse at 7-26.) He has also filed a Motion for an evidentiary hearing and for the appointment of counsel. (ECF No. 16.)

For the following reasons, the Court finds that the appointment of counsel, an evidentiary hearing, or a stay and abeyance are neither necessary nor warranted. The Court also finds that federal habeas relief is unavailable because the state court adjudication of Petitioner's claims is neither contrary to, nor involves an unreasonable application of, clearly established federal law, and is not based on an unreasonable determination of the facts. The Court recommends denial of the Motion for an evidentiary hearing and appointment of counsel, and denial of the Petition.

I. PROCEDURAL BACKGROUND

On August 6, 2009, a 22-count Indictment was filed in the San Diego County Superior Court naming 17 defendants, including Petitioner who was charged in 9 counts. (Lodgment No. 3, Clerk's Transcript ["CT"] at 1-36.) Eight defendants appeared in the superior court, with the others remaining at large. (Lodgment No. 1, Reporter's Tr. ["RT"] at 1-4.) Of those eight defendants, two (Guillermo Moreno-Garcia and his younger half-brother Carlos Pena) entered into cooperation agreements and testified at trial, the District Attorney anticipated seeking the death penalty against four (Jorge Rojas Lopez, Jesus Lopez Becaerra, Edgar Frausto-Lopez and Jorge Salvador Moreno), leaving Petitioner and David Valencia to be the first to go to trial, and they were tried together. (RT 285-86.) The counts were renumbered and Petitioner was charged with attempted kidnapping of Arturo Martinez-Barrera in violation of California Penal Code §§ 207(a) and 664 (count 1); robbery of Ivan Lozano, Jr. in violation of Penal Code § 211 (count 2); murder of Ivan Lozano, Jr. in violation of Penal Code § 187(a) (count 3); kidnap for ransom of Cesar Uribein violation of Penal Code § 209(a) (count 4); murder of Cesar Uribe in violation of Penal Code § 187(a) (count 5); kidnap for ransom of Marc Anthony Leon in violation of Penal Code § 209(a) (count 6); murder of Marc Anthony Leon in violation of Penal Code § 187(a) (count 7); conspiracy to kidnap for ransom Eduardo Gonzalez-Tostado in violation of Penal Code §§ 182(a) and 209(a) (count 8); and kidnap for ransom of Eduardo Gonzalez-Tostado in violation of Penal Code § 209(a) (count 9). (CT 626-49.) David Valencia pled guilty to counts 8-9 and was only charged in counts 4-7. (CT 626-49, 832-34.) Special circumstance allegations as to the Lozano murder alleged it was committed during the commission or attempted commission of a robbery, and as to all murders that they: (1) were committed during the commission or attempted commission of kidnapping, (2) involved the infliction of torture, (3) were committed while the defendants were active participants in a criminal street gang, and (4) involved more than one murder. (Id.) As to all other counts the Indictment alleged they were committed for the benefit of a criminal street gang within the meaning of Penal Code § 186.22(b)(1), alleged with respect to counts 1, 8 and 9 that at least one principal was armed with a firearm within the meaning of Penal Code § 12022.52(d)&(e)(1), and alleged with respect to counts 4, 6 and 9 that the victim suffered bodily harm within the meaning of Penal Code § 209(a). (Id.)

On May 16, 2012, a jury found Petitioner and Valencia not guilty of robbery of Lozano and not guilty of the lesser included offense of grand theft (count 2), not guilty of kidnapping Leon for ransom but guilty of the lesser included offense of kidnap of Leon (count 6), and guilty on all remaining counts. (CT 1509-56.) The jury returned not true findings on the special circumstances of torture and robbery, but returned true findings on all remaining allegations, including the special circumstances that the murders were committed during the course of a kidnapping, were carried out to further the activities of a criminal street gang, and involved more than one murder. (Id.) On September 28, 2012, Petitioner was sentenced to five consecutive terms of life without the possibility of parole, plus consecutive terms of 25 years to life and 19 years, along with the imposition of $714 in court fees and $2,467.71 in restitution fines. (CT 1574-75.)

Petitioner appealed, raising claim one presented here. (Lodgment Nos. 4-8.) The appeal was consolidated with the appeal of his co-defendant Valencia, and on September 10, 2014, the appellate court affirmed in all respects, with the exception of directing the abstract of judgment be modified. (Lodgment No. 12.) Petitioner filed a petition for review in the state supreme court presenting claim one raised here. (Lodgment No. 13.) His petition was consolidated with Valencia's petition for review, and they were summarily denied on November 18, 2014. (Lodgment No. 15.)

On February 18, 2016, Petitioner filed a habeas petition in the superior court raising the remaining claims presented here. (Lodgment No. 16.) That petition was denied on March 25, 2016, on the basis that Petitioner had not stated a prima facie claim for relief, and, as to five of the claims, on the basis they were required to have been raised on direct appeal. (Lodgment No. 17.) His request for reconsideration, which was accompanied by additional documentary support, was denied. (Lodgment Nos. 18-19.) He presented the same claims with the additional documentary support to the appellate court in a habeas petition filed on May 27, 2016. (Lodgment No. 20.) The state appellate court addressed the merits of the claims and denied the petition on June 8, 2016. (Lodgment No. 21.) Petitioner filed a habeas petition in the state supreme court on August 1, 2016, presenting the same claims, which was summarily denied on October 12, 2016. (Lodgment Nos. 22-27.) He filed the instant federal Petition on October 24, 2016.²

II. TRIAL PROCEEDINGS

Motions to sever the trials of Petitioner and Valencia and for dual juries were denied. (RT 413-14, 475-76; CT 323-62.) Defense counsel made two B...