Barrios v. McDowell

• Decision Date: 11 July 2017
• Docket Number: Case No. CV 14-09675 VBF (AFM)
• Court: U.S. District Court — Central District of California
• Parties: WINDER E. BARRIOS, Petitioner, v. NEIL MCDOWELL, Respondent.

WINDER E. BARRIOS, Petitioner, v. NEIL MCDOWELL, Respondent.

Case No. CV 14-09675 VBF (AFM)

UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA

July 11, 2017

FINAL REPORT AND RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE

This Final Report and Recommendation is submitted to the Honorable Valerie Baker Fairbank, Senior United States District Judge, 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.

INTRODUCTION

Petitioner, an inmate at Ironwood State Prison, has filed a Petition for Writ of Habeas Corpus by a Person in State Custody (28 U.S.C. § 2254). The Petition raises four grounds for federal habeas relief, directed to petitioner's criminal convictions for his participation in a series of robberies, including a home-invasion robbery. Petitioner's trial was notable for the fact that he and his co-defendant escaped custody for one day during the trial.

An initial Report and Recommendation was issued in this case on May 18, 2017. This Final Report and Recommendation is issued only to remove erroneous citations in the initial Report and Recommendation to the decision of the three-judge panel in Godoy v. Spearman, 834 F.3d 1078 (9th Cir. 2016). Otherwise, this Final Report and Recommendation is substantively identical to the initial Report and Recommendation.

For the reasons discussed below, the Court recommends that the Petition be denied and that this action be dismissed with prejudice.

PROCEDURAL HISTORY

On May 4, 2010, a Los Angeles County Superior Court jury convicted petitioner of five counts of second-degree robbery, two counts of home-invasion robbery, two counts of false imprisonment by violence, two counts of assault with a firearm, and one count of first-degree burglary. The jury also found true allegations of firearm use by petitioner. Petitioner's co-defendant, Jose Aldana, was convicted by a separate jury of several crimes. Petitioner was sentenced to state prison for 42 years 8 months. (4 Reporter's Transcript ["RT"] 2407-15, 2424-31; 5 RT 5426; 2 Clerk's Transcript ["CT"] 368-79, 453.)

Petitioner appealed, raising claims corresponding to Grounds One and Two of the Petition. (Respondent's notice of lodging, Lodgment 17.) In an unpublished opinion filed on November 20, 2012, the California Court of Appeal rejected petitioner's claims and affirmed the judgment. (Lodgment 2.) Petitioner raised the same claims in a Petition for Review in the California Supreme Court, which summarily denied review on January 23, 2013. (Lodgments 3, 20.)

Petitioner next filed a series of habeas petitions in the California courts. On February 6, 2014, petitioner filed a habeas petition in the California Court of Appeal, in which he raised two claims of ineffective assistance of counselcorresponding to Grounds Three and Four of the Petition. (Lodgment 4.) On February 27, 2014, the California Court of Appeal denied the petition without prejudice to petitioner refiling a habeas petition in the Los Angeles County Superior Court with either an accompanying declaration by trial counsel or an accompanying declaration by petitioner describing his attempts to contact trial counsel. (Lodgment 5.)

On March 28, 2014, petitioner filed a habeas petition in the Los Angeles County Superior Court, again raising claims corresponding to Grounds Three and Four of the Petition. (Lodgment 6.) The petition did not include a declaration by trial counsel or petitioner. (Id.) The Superior Court denied the petition in a reasoned decision filed on May 2, 2014. (Lodgment 7.)

On June 4, 2014, petitioner filed a habeas petition in the California Court of Appeal, raising claims corresponding to Grounds Three and Four of the Petition. (Lodgment 8.) The petition included a declaration by petitioner stating that his trial counsel had not responded to petitioner's request for a declaration. (Lodgments 9, 11.) On June 16, 2014, the California Court of Appeal denied the petition without comment or citation of authority. (Lodgments 10, 11.)

On July 21, 2014, petitioner filed a habeas petition in the California Supreme Court, raising claims corresponding to Grounds Three and Four of the Petition, with petitioner's accompanying declaration. (Lodgment 12.) On October 1, 2014, the California Supreme Court denied the petition without comment or citation of authority. (Lodgment 13.)

Petitioner filed the instant Petition on December 18, 2014.

On May 18, 2015, respondent filed a Motion to Dismiss the Petition as untimely. Petitioner filed an Opposition on July 6, 2015. On July 21, 2015, this action was transferred to the calendar of the undersigned Magistrate Judge. On September 11, 2015, the Court denied respondent's Motion to Dismiss without prejudice and ordered supplemental briefing on the merits of petitioner's claims.

On February 22, 2016, respondent filed an Answer. On April 11, 2016, petitioner filed a three-page Reply. On April 12, 2016, the Court appointed counsel for petitioner in the interests of justice, given the procedural complexity of the statute of limitations issue. On February 28, 2017, petitioner's counsel filed a Supplemental Reply.

SUMMARY OF THE EVIDENCE

Based on its independent review of the record, the Court adopts the following summary from the California Court of Appeal's opinion as a fair and accurate summary of the evidence presented at petitioner's trial. (Lodgment 2 at 2-5.)¹

[Petitioner], codefendant Jose Aldana, and a third man committed four robberies in the Hollywood area between about 9:30 and 10:00 p.m. on March 26, 2009. (All further unspecified date references are to 2009.) Each victim was alone in a parked car when a black pickup truck pulled alongside the victim's car. Two men emerged from the truck, one pointed a shotgun at each victim, and they demanded money. Each victim handed over one or more items to the men. The men took victim Kate Taylor's GPS system. Three of the four victims (Jerry Baxter, Julio Licon, and Taylor) identified [petitioner] and Aldana at trial as the robbers. Baxter testified that the robbers' truck was a Nissan, and victims Dane Woodward, Baxter, and Licon testified that the black truck had a paper license plate that said "Miller" and appeared to be the same truck in which [petitioner] andAldana were riding when arrested.

On the morning of March 27, [petitioner], Aldana, and a third man went to the gated Encino home of Robert Smith. Smith's 19-year-old daughter Jenna and the family's housekeeper, Olga Carpio, were in the house. Carpio opened the gate for the men, who stated over the intercom that they were the gardeners. A black truck drove in, and few minutes later, [petitioner] and Aldana appeared outside the glass entry door, which Carpio was cleaning. Aldana pointed a shotgun at Carpio's stomach and demanded that she open the door. After she did, they forced her back to the kitchen. By the time they reached the kitchen, [petitioner] had the shotgun and was pointing it at Carpio. Aldana taped her to a chair and covered her eyes with masking tape. A little later, Jenna awoke and entered the kitchen. She saw Carpio taped to a chair and a man standing behind Carpio pointing a gun at Carpio's head. The gun looked like the one in the photograph of the shotgun recovered from the black truck when [petitioner] and Aldana were arrested. Jenna ran, but the man with the gun ran toward Jenna. The men chased her, threw her down, and carried her to the kitchen, where they taped her to a chair and taped her eyes nearly shut. Jenna felt the barrel of the gun pressed against her cheek and heard the men moving around quickly. After she heard the front door close and no longer heard the men in the house, she phoned her father and 911. The men had ransacked the house and taken two large flatscreen televisions and two laptop computers. Smith identified as his two laptops recovered from [petitioner's] apartment.

The Smith's real gardener arrived the same morning and saw a black Nissan Frontier pickup truck with a paper dealer plate that said "Miller" parked near the house with televisions in the truck bed. Thetruck in which [petitioner] and Aldana were arrested looked like the truck the gardener saw. Security camera footage from the home of one of Smith's neighbors showed a black Nissan truck driving toward the Smith house with an apparently empty bed, then driving in the opposite direction about 30 minutes later with what appeared to be big screen televisions in the bed. Portions of the video were played at trial.

On the night of March 30, a silver Escalade pulled up next to Wesley Swafford as she sat in her parked car in the Hollywood area. Aldana got out of the passenger side of the Escalade, pointed a shotgun at Swafford's face, and demanded that she give him "everything." She handed over her purse, car keys, and phone. Her phone was recovered from the rear floorboard of a silver Escalade registered to [petitioner].

[Petitioner] and Aldana were arrested in the Hollywood area on the night of April 2 in the black Nissan truck with "Miller" plates. The police found Taylor's GPS system, a loaded shotgun, and additional shotgun shells inside the truck.

Over the course of two interviews by police, [petitioner] admitted committing the five robberies in the Hollywood area, personally using the shotgun in each of the Hollywood robberies (including the Swafford robbery), the burglary at the Smith home, and the crimes against Carpio. Initially, [petitioner] tried to minimize his responsibility, claiming that although he entered the house with the gun, he held it at his side, did not point it at anyone, did not see anyone taped up, did not see Jenna, and almost immediately after entry, went outside to remain by the truck while his two companions did everything else. He gradually admitted that he remained inside the house, he had the gun on Carpio while Aldana taped her, he kept the gun with him and remained in the kitchen with

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