Carrillo v. Biter, 1:09-cv-01331-AWI-BAM-HC

CourtUnited States District Courts. 9th Circuit. United States District Courts. 9th Circuit. Eastern District of California
Writing for the CourtBarbara A. McAuliffe
Docket Number1:09-cv-01331-AWI-BAM-HC
PartiesEDDIE CARRILLO, Petitioner, v. MARTIN BITER, Warden of Kern Valley State Prison, Respondent.
Decision Date03 February 2012

EDDIE CARRILLO, Petitioner,
v.
MARTIN BITER, Warden of Kern Valley State Prison, Respondent.

1:09-cv-01331-AWI-BAM-HC

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF CALIFORNIA

Dated: February 3, 2012


ORDER SUBSTITUTING WARDEN MARTIN BITER AS RESPONDENT

FINDINGS AND RECOMMENDATIONS THAT PETITIONER'S STATE LAW CLAIMS
CONCERNING ALTERNATE JURORS AND SENTENCING ERROR BE DISMISSED

FINDINGS AND RECOMMENDATIONS THAT THE PETITION FOR WRIT OF HABEAS
CORPUS BE DENIED AND JUDGMENT BE ENTERED FOR RESPONDENT

FINDINGS AND RECOMMENDATIONS TO DECLINE TO ISSUE A CERTIFICATE OF APPEALABILITY

Petitioner is a state prisoner proceeding pro se and in forma pauperis with a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254. The matter has been referred to the Magistrate Judge pursuant to 28 U.S.C.§ 636(b)(1) and Local Rules 302 and 304. Pending before the Court is the petition, which was filed on July 24, 2009, and amended to name a proper Respondent on August 17, 2010. Respondent filed an answer to the petition on December 22, 2010, and lodged portions of the state record in support of the answer. Petitioner did not file a traverse.

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I. Substitution of Martin Biter as Respondent

Respondent answered on behalf of Respondent James A Yates, Warden of Pleasant Valley State Prison, where Petitioner was incarcerated at the time the petition and answer were filed. Petitioner subsequently filed a notice of change of address on September 29, 2011, reflecting that Petitioner's present custodial institution is the Kern Valley State Prison (KVSP).

Title 28 U.S.C. § 2242 provides that a petition for writ of habeas corpus shall allege the name of the person who has custody over the applicant. Rule 2(a) of the Rules Governing Section 2254 Cases in the District Courts (Habeas Rules) provides that if the petitioner is currently in custody under a state court judgment, the petition must name as respondent the state officer who has custody. A failure to name the proper respondent destroys personal jurisdiction. Stanley v. California Supreme Court, 21 F.3d 359, 360 (9th Cir. 1994). The warden of the penitentiary where a prisoner is confined constitutes the custodian who must be named in the petition, and the petition must be filed in the district of confinement. Johnson v. Reilly, 349 F.3d 1149, 1153 (9th Cir. 2003).

Fed. R. Civ. P. 25(d) provides that when a public officer who is a party to a civil action in an official capacity dies, resigns, or otherwise ceases to hold office while the action is pending, the officer's successor is automatically substituted as a party. It further provides that the Court may order substitution at any time, but the absence of such an order does not affect the substitution.

The warden at KVSP is Martin Biter.

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Accordingly, it IS ORDERED that pursuant to Rule 25(d), Warden Martin Biter is SUBSTITUTED as Respondent.

II. Jurisdiction

Because the petition was filed after April 24, 1996, the effective date of the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA), the AEDPA applies in this proceeding. Lindh v. Murphy, 521 U.S. 320, 327 (1997), cert. denied, 522 U.S. 1008 (1997); Furman v. Wood, 190 F.3d 1002, 1004 (9th Cir. 1999).

A district court may entertain a petition for a writ of habeas corpus by a person in custody pursuant to the judgment of a state court only on the ground that the custody is in violation of the Constitution, laws, or treaties of the United States. 28 U.S.C. §§ 2254(a), 2241(c)(3); Williams v. Taylor, 529 U.S. 362, 375 n.7 (2000); Wilson v. Corcoran, 562 U.S. -, -, 131 S.Ct. 13, 16 (2010) (per curiam).

Petitioner, an inmate of the KVSP at Delano, California, claims that he suffered violations of his rights under the Constitution in the trial and sentencing proceedings that resulted in the judgment challenged in the petition. Thus, violations of the Constitution are alleged.

Further, Petitioner was convicted and sentenced in the Superior Court of the State of California, County of Madera, which is located within the jurisdiction of this Court. 28 U.S.C. §§ 2254(a), 2241(a), (d).

As previously noted, Petitioner has named as a respondent a person who had custody of the Petitioner within the meaning of 28 U.S.C. § 2242 and Rule 2(a) of the Rules Governing Section 2254 Cases in the District Courts (Habeas Rules). See, Stanley v.

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California Supreme Court, 21 F.3d 359, 360 (9th Cir. 1994).

Accordingly, the Court concludes that it has jurisdiction over the proceeding and over the Respondent.

III. Procedural Summary

On November 14, 2006, a jury found Petitioner guilty of attempted murder in violation of Cal. Pen. Code §§ 664, 187, and the jury further found that Petitioner had personally used a firearm and had personally and intentionally discharged a firearm and caused great bodily injury in the commission of the offense within the meaning of Cal. Pen. Code §§ 12022.53(b)-(d) and 12022.7(a). The jury also found Petitioner guilty of assault with a firearm in violation of Cal. Pen. Code § 245(a)(2) and found that he had personally used a firearm and had personally inflicted great bodily injury in the commission of the crime in violation of Cal. Pen. Code §§ 12022.5(a) and 12022.7(a). The findings concerning the enhancements caused the substantive offenses to become serious felonies within the meaning of Cal. Pen. Code § 1192.7(c)(8). In a bifurcated proceeding, the jury found that Petitioner had suffered a prior serious felony conviction within the meaning of Cal. Penal Code §§ 667(b)-(i) and 667.5(b). (LD1 1 [Clerk's Transcript on Appeal, Volume One], 143-144, 177-186.)

On February 13, 2007, the court sentenced Petitioner to life in prison with the possibility of parole for the attempted murder plus a consecutive term of twenty-five (25) years to life for the firearm enhancement pursuant to Cal. Penal Code § 12022.53(d)).

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(LD 1, 227.) The other count and enhancements were stayed pursuant to Cal. Pen. Code § 654. (Id.)

On February 21, 2007, Petitioner timely appealed to the California Court of Appeal, Fifth Appellate District (DCA), in case number F052304. (LD 1, 232, 240.) After briefing by the parties (LD 2 [Petitioner's op. brief], LD 3 [People's resp. brief], LD 4 [Petitioner's reply brief]), the DCA affirmed Petitioner's conviction and sentence in an unpublished, reasoned decision filed on February 26, 2008. (LD 5.)

On March 28, 2008, Petitioner filed a petition for review with the California Supreme Court in case number S162175. (LD 6.) Review was summarily denied on June 11, 2008. (LD 7.)

On July 21, 2009, Petitioner filed a petition for writ of habeas corpus with this Court. (Doc. 1.)2

IV. Factual Summary

When more than one state court has adjudicated a claim, this Court will analyze the last reasoned decision. Ylst v. Nunnemaker, 501 U.S. 797, 803-04 (1991). Even where procedural default is not an issue, the decision in which the state court last explained its reasons for the decision must be identified in

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order to analyze the state court decision pursuant to 28 U.S.C. § 2254(d)(1). Barker v. Fleming, 423 F.3d 1085, 1092 n.3 (9th Cir. 2005); Bailey v. Rae, 339 F.3d 1107, 1112-13 (9th Cir. 2003). Where there has been one reasoned state judgment rejecting a federal claim, later unexplained orders upholding that judgment or rejecting the same claim are presumed to rest upon the same ground. Ylst v. Nunnemaker, 501 U.S. 797, 803 (1991). Thus, where the California Supreme Court denies a habeas petition or petition for review without citation or comment, a district court will "look through" the unexplained decision of that state court to the last reasoned decision of a lower court as the relevant state-court determination. Ylst v. Nunnemaker, 501 U.S. at 803-04; Taylor v. Maddox, 366 F.3d 992, 998 n.5 (9th Cir. 2004). A petitioner has the burden to overcome or rebut the presumption by strong evidence that the presumption, as applied, is wrong. Ylst, 501 U.S. at 804.

Here, the last reasoned decision was the decision of the DCA on direct appeal.

In a habeas proceeding brought by a person in custody pursuant to a judgment of a state court, a determination of a factual issue made by a state court shall be presumed to be correct; the petitioner has the burden of producing clear and convincing evidence to rebut the presumption of correctness. 28 U.S.C. § 2254(e)(1); Sanders v. Lamarque, 357 F.3d 943, 947-48 (9th Cir. 2004). The following factual summary is taken from the opinion of the DCA in Case number F052304, filed on February 26, 2008. (LD 5, 2-9.) See, Galvan v. Alaska Dep't. Of Corrections, 397 F.3d 1198, 1199 n. 1 (9th Cir. 2005) (setting forth a factual

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summary from the state appellate court's decision).


On June 19, 2006, Carlos Urbano, was residing with his aunt in Madera. Around 9:00 or 9:30 p.m., Urbano was sitting in a little shack behind the house, fixing a weed eater. The room was well lit.
As Urbano was working on the weed eater, defendant walked into the shack. It appeared defendant was handing him a soda bottle. But as Urbano looked up, he saw defendant raise up the plastic bottle, felt a blast, and realized he had been shot. Urbano felt a twitch below his right eye. He was then shot again on the
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