Cano v. Malfi
| Decision Date | 23 November 2010 |
| Docket Number | No. CIV S-06-0558-LKK-TJB,CIV S-06-0558-LKK-TJB |
| Court | U.S. District Court — Eastern District of California |
| Parties | GABRIEL CANO, Petitioner, v. ANTHONY MALFI, Respondent. |
Petitioner Gabriel Cano is a state prisoner proceeding pro se with a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254. For the following reasons, Petitioner's request for appointment of counsel is denied, and it is recommended that: (1) Petitioner's August 16, 2006 stay-and-abeyance motion be denied; (2) Petitioner's September 16, 2008 request for what may be construed as either a stay-and-abeyance motion or a motion to amend be denied; and (3) habeas relief be denied.
The record reflects the following chronology of relevant proceedings:
1. In 2003, a Sacramento County jury convicted Petitioner of two counts: (1) attempted murder under Sections 664 and 187(a) of the California Penal Code; and (2) assaultwith a firearm under Section 245(a)(2) of the California Penal Code. Lodged Doc. 5, at 1; see Lodged Doc. 1. "With respect to count one, the jury made special findings that [Petitioner] personally and intentionally discharged a firearm." Lodged Doc. 5, at 1 (citation omitted); see Lodged Doc. 1. "On both counts one and two, the jury found that [Petitioner] personally used a firearm, and inflicted great bodily." Lodged Doc. 5, at 1 (citations omitted); see Lodged Doc. 1. Petitioner is currently serving a sentence of twenty-five years to life, plus a seven year enhancement for discharge of a firearm causing great bodily injury. Lodged Doc. 5, at 1; see Lodged Doc. 1.
2. On May 27, 2004, Petitioner directly appealed his conviction to the California Court of Appeal, Third Appellate District. See Lodged Doc. 2. Petitioner raised three claims: (1) the photographic lineup was unduly suggestive, and the trial court erred by failing to exclude the victim's photo identification and subsequent in-court identification of Petitioner; (2) the trial court erred by admitting gang evidence, over defense objection; and (3) cumulative error warrants reversal. Id. at ii.
3. On December 21, 2004, the Court of Appeal issued an unpublished opinion affirming the conviction and correcting a clerical error. Lodged Doc. 5, at 16-17 ( ).
4. Stamped as docketed for February 3, 2005, Petitioner's petition for review was filed in the California Supreme Court. See Lodged Doc. 6. Petitioner raised the same three claims as in his direct appeal to the Court of Appeal. See Lodged Doc. 6, at 1.
5. On March 16, 2005, the California Supreme Court summarily denied the petition. See Lodged Doc. 7.
6. On March 16, 2006, Petitioner filed the original federal petition for writ of habeascorpus. See Pet'r's Pet., ECF No. 1. Petitioner raised the same three claims as in his direct appeal to the Court of Appeal and California Supreme Court. See id. at 3-4.
7. On May 16, 2006, Petitioner filed his first amended federal habeas petition. See Pet'r's First Am. Pet., ECF No. 6. Petitioner raised the same three claims as in his direct appeal to the Court of Appeal and California Supreme Court. See id. at 2.
8. On June 20, 2006, Petitioner filed a motion in the Superior Court to modify the restitution fines. Resp't's Renewed Opp'n Ex. H, at 59, ECF No. 30.
9. On June 22, 2006, Petitioner filed his second amended federal habeas petition. See Pet'r's Second Am. Pet., ECF No. 9. Petitioner raised the same three claims as in his direct appeal to the Court of Appeal and California Supreme Court. See id. at 2.
10. On July 6, 2006, Petitioner filed a state habeas petition in Sacramento County Superior Court. Petitioner argued: (1) his due process rights were violated because his court appointed attorney was "not qualified," Resp't's Renewed Opp'n Ex. A, at 5; (2) his trial counsel rendered ineffective assistance for not investigating and cross examining witnesses properly regarding their identification of Petitioner, id. at 6; and (3) cumulative error of the prior two grounds warranted reversal. Id. at 7.
11. On August 3, 2006, the Superior Court denied Petitioner's request for modification of restitution. Resp't's Renewed Opp'n Ex. E, at 40.
12. On August 8, 2006, Petitioner filed a letter in federal court stating, in full: Pet'r's Letter 1, Aug. 8, 2006, ECF No. 12.
13. On August 16, 2006, Petitioner filed a letter in federal court requesting "that [his]current appeal/writ be stayed until [he] can catch these new grounds up via the lower courts to [his] current writ." Pet'r's Req. 1, Aug. 16, 2006, ECF No. 13. According to Petitioner, "as of 6.6.06," he "filed an amemend [sic] complaint to [his] appeal in the Sacramento Superior Court[,] case number 06F06070." Id. But see Resp't's Renewed Opp'n Ex. A, at 3 (). The record does not show that Respondent filed a response to this letter.
14. On August 18, 2006, Petitioner filed his first of two notices of appeal in the Superior Court, appealing (1) the August 3, 2006 order denying Petitioner's request for restitution modification; and (2) "a writ of habeas corpus filed in the Sacramento [County] Superior Court... in which the writ was denied." Resp't's Renewed Opp'n Ex. E, at 41. But see Resp't's Renewed Opp'n Ex. B, at 23-24 ().1
15. On August 29, 2006, the Superior Court denied habeas relief. Resp't's Renewed Opp'n Ex. B, at 23-24.
16. Also on August 29, 2006, the Court of Appeal received Petitioner's first notice of appeal. Resp't's Renewed Opp'n Ex. F, at 46.
17. On September 13, 2006, Petitioner filed his second notice of appeal of his state habeas denial with the Superior Court. Resp't's Renewed Opp'n Ex. C, at 27.
18. On September 14, 2006, the Superior Court mailed a copy of the second notice of appeal to the Court of Appeal. Id.
19. On September 18, 2006, the Court of Appeal received Petitioner's second notice of appeal. Id.20. On October 4, 2006, Respondent filed an answer to the federal habeas petition. See Resp't's Answer, ECF No. 19.
21. On October 5, 2006, the Court of Appeal dismissed Petitioner's second notice of appeal, stating that "the order appealed from is nonappealable," with a citation to In re Crow, 4 Cal. 3d 613, 621 n.8, 94 Cal. Rptr. 254, 483 P.2d 1206 (1971).2 See Resp't's Renewed Opp'n Ex. D, at 37.
22. On October 18, 2006, the Court of Appeal "appointed counsel to represent [Petitioner]" on his first notice of appeal. Resp't's Renewed Opp'n Ex. H, at 60; see Resp't's Renewed Opp'n Ex. F, at 46.
23. On November 9, 2006, Petitioner filed a traverse to Respondent's answer for the federal habeas petition. See Pet'r's Traverse, ECF No. 23.
24. On August 14, 2007, the Court of Appeal ruled on Petitioner's first notice of appeal, affirming the Superior Court's (1) August 3, 2006 order denying restitution modification; and (2) August 29, 2006 order denying habeas relief. Resp't's Renewed Opp'n Ex. H, at 61.
25. On October 24, 2007, Petitioner filed a habeas petition in the California Supreme Court. Petitioner raised two claims: (1) his due process and equal protection rights were violated because his court appointed attorney did not meet "Sacramento County's own established criteria;" and (2) his counsel was ineffective for failing to exclude certain evidence, and for failing to investigate or cross examine witnesses properly on their identification of Petitioner. Resp't's Renewed Opp'n Ex. I, at 6667.
26. On November 4, 2007, the California Supreme Court received Petitioner's declarationexplaining his habeas petition was "late" because he never received a decision from the Court of Appeal on his second notice of appeal. Resp't's Renewed Opp'n Ex. J, at 76.
27. On April 16, 2008, the California Supreme Court denied Petitioner's habeas petition without comment or citation. Resp't's Renewed Opp'n Ex. K, at 82.
28. On April 21, 2008, Petitioner filed a letter in federal court inquiring about "the status of his [federal habeas petition]," and about how "last year, [ ] [he] asked the court to stay" his petition "because [he] had a new ground that [he] was putting through the lower courts." Pet'r's Letter 1, Apr. 21, 2008, ECF No. 24. Petitioner "never received anything from the court." Id.
29. On April 24, 2008, the civil docket for the instant case was modified to reflect that the Honorable Edmund F. Brennan, the assigned magistrate judge at the time, issued a response stating, "The court has no record that petitioner filed a request for stay and abeyance." See Civil Docket for Case #: 2:06-cv-00558-LKK-TJB, ECF No. 24. But see Pet'r's Req. 1, Aug. 16, 2006 ("I am requesting that my current appeal/writ be stayed until I can catch these new grounds up via the lower courts to my current writ if this is possible.").
30. On September 16, 2008, Petitioner filed a request for: (1) what may be construed as either a stay-and-abeyance motion or a motion to amend; and (2) appointment of counsel. See Pet'r's Req. 1, Sept. 16, 2008, ECF No. 25.
31. On October 6, 2008, Respondent filed an opposition to Petitioner's September 16, 2008 request. See Resp't's Opp'n, ECF No. 26.
32. Petitioner did not file a reply to Respondent's...
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