Chavira v. Soto
| Decision Date | 12 February 2018 |
| Docket Number | Case No.: 15cv1997-WQH (BGS) |
| Court | U.S. District Court — Southern District of California |
| Parties | ROBERT CHAVIRA, Petitioner, v. J. SOTO, Warden, et al., Respondents. |
Robert Chavira (hereinafter "Petitioner") is a state prisoner proceeding pro se and in forma pauperis with a Petition for a Writ of Habeas Corpus filed pursuant to 28 U.S.C. § 2254.1 (ECF No. 1.) Petitioner was convicted in the San Diego County Superior Court of one count of conspiracy to commit robbery, eleven counts of robbery, nine counts of false imprisonment, one count of burglary, one count of arson, and two counts of assault with a semi-automatic firearm, with nineteen counts accompanied by firearm use findings.(Lodgment No. 1, Clerk's Tr. ["CT"] at 364-88.) He is serving a sentence of 717 years-to-life in state prison, enhanced under California's Three Strikes law by two prior felony convictions. (CT 758-59; Lodgment No. 5, People v. Chavira, et al., No. D063089, slip op. at 22 (Cal. App. Ct. Mar. 26, 2014).) Petitioner claims that his federal constitutional rights were violated by ineffective assistance of appellate counsel (claims one through seven, nine and ten), by the imposition of procedural bars in his state habeas proceedings (claims eight and eleven), because there is insufficient evidence to support three of the false imprisonment counts (claim twelve), and because the burden of proof was lowered when the jury was given a permissive inference instruction on robbery and burglary (claim thirteen). (ECF No. 1 at 21-198.)
Respondent has filed an Answer and lodged the state court record. (ECF Nos. 13-14, 21.) Respondent argues that claims nine and ten were never presented to any state court but can be denied as plainly meritless, claims eight and eleven do not present claims for relief, and the adjudication by the state court of the remaining 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. (Memorandum of Points and Authorities in Support of Answer [ ] at 4-13.)
Petitioner has filed a Traverse. (ECF No. 16.) He has also filed a Motion for Stay and Abeyance requesting this matter be stayed and the Petition held in abeyance until the state court issues an opinion on a habeas petition in which he raised claims nine and ten. (ECF No. 18.) In addition, he has filed a Motion for Relief from Judgment in which he states that the state court has now denied the habeas petition presenting claims nine and ten, that his motion for stay and abeyance is therefore moot, and requesting claims nine and ten be considered on their merits. (ECF No. 20.)
The Court finds that federal habeas relief is unavailable as to any claim presented in the Petition because claims nine and ten fail under a de novo review, and the remaining claims fail under the deferential standard of review set forth in 28 U.S.C. § 2254(d). The Court denies Petitioner's motions as moot, and denies the Petition.
In a 28-count Consolidated Amended Information/Indictment filed in the San Diego County Superior Court on October 2, 2012, Petitioner and co-defendant Ryan McKnight were charged with one count of conspiracy to commit robbery in violation of California Penal Code § 182(a)(1) (count 1), eleven counts of robbery in violation of California Penal Code § 211 (counts 2, 3, 8-11, 13, 15, 25-27), two counts of assault with a deadly weapon in violation of California Penal Code § 245(a)(1) (counts 4-5), nine counts of false imprisonment by violence in violation of California Penal Code §§ 236-37 (counts 6-7, 15-21), one count of arson in violation of California Penal Code § 451(c) (count 22), two counts of assault with a semi-automatic firearm in violation of California Penal Code § 246(b) (counts 23-24), one count of burglary in violation of California Penal Code § 459 (count 12), and Petitioner alone was charged with one count of receiving stolen property in violation of California Penal Code § 496(a) (count 28). (CT 195-207.) Counts 4, 5, and 28 were later dismissed. (Id.) As to counts 2-3, 8-11, 13-14 and 25-27, it was alleged that Petitioner and McKnight personally used a firearm within the meaning of California Penal Code § 12022.53(b), and as to counts 6-7 and 15-21, that they personally used a firearm within the meaning of California Penal Code § 12022.5(a). (CT 200-09.) It was also alleged that Petitioner had been convicted of two prior serious or violent felonies within the meaning of California Penal Code §§ 667(a)-(i) and 1170.12. (CT 195-209.)
On October 31, 2012, a jury found Petitioner guilty on all counts, other than count 5 on which they deadlocked, and counts 4 and 28 which were dismissed prior to submission to the jury, and returned true findings on all the firearm use allegations other than count 11. (CT 364-89.) The prior conviction allegations were found true on November 1, 2012. (CT 754.01.) On December 3, 2012, Petitioner was sentenced to 425 years-to-life plus 288 years and 8 months in state prison. (CT 758-59.)
Petitioner appealed, raising claims twelve and thirteen presented here, and joined McKnight's appeal raising claims not presented here. (Lodgment No. 3.) The appellate court consolidated the appeals, corrected a sentencing error which increased Petitioner'ssentence by 3 years and 4 months, and affirmed. (Lodgment No. 5, People v. Chavira, et al., No. D063089, slip op. at 22.) On April 29, 2014, Petitioner filed a petition for review in the state supreme court raising claims twelve and thirteen. (Lodgment No. 6.) The petition was denied with an order which stated: "Petition for review denied." (Lodgment No. 7, People v. Chavira, No. S218220 (Cal. June 11, 2014).)
On October 31, 2014, Petitioner filed a habeas petition in the state superior court claiming: (1) his cell phones were searched without a valid warrant; (2) the search exceeded the scope of any warrant; (3) ineffective assistance of trial counsel in failing to investigate and object to perjured testimony by a police detective and a prosecution investigator; (4) his conviction was based on that perjured testimony; (5) prosecutorial misconduct when the prosecutor took on investigatory functions; and (6) ineffective assistance of appellate counsel for failing to raise those and other claims on appeal. (Lodgment No. 8.) On December 9, 2014, the state superior court denied the habeas petition, finding that the first five claims were procedurally barred because they could have been but were not raised on direct appeal, and that the ineffective assistance of appellate counsel claim (claims one through seven presented here) failed on the merits because Petitioner had not shown prejudice as a result of the alleged errors of his appellate counsel. (Lodgment No. 9, In re Chavira, No. HC20860, order at 2-4 (Cal. Sup. Ct. Dec. 9, 2014).)
On December 22, 2014, Petitioner filed a petition for a writ of error coram nobis in the state appellate court alleging that a police detective and prosecution investigator testified falsely at trial. (Lodgment No. 10.) The appellate court summarily denied the petition without a statement of reasoning. (Lodgment No. 11, In re Chavira, No. D067233, order (Cal. App. Ct. Jan. 8, 2015).) On January 21, 2015, Petitioner filed a habeas petition in the appellate court raising the same claims presented in his superior court habeas petition (which included claims one through seven here), and adding claims that the state superior court erroneously denied most of his claims on procedural grounds (claims eight and eleven here). (Lodgment No. 12.) The appellate court denied the petition on the basis that the claims alleging unlawful search and seizure were procedurally barred for failing to raisethem on appeal, his claim of perjury was barred as repetitive and successive as it had already been denied in his coram nobis proceeding, and the claim the superior court abused its discretion in finding his claims procedurally barred was not cognizable in an appellate court habeas proceeding. (Lodgment No. 13, In re Chavira, No. D067302, order at 1-2 (Cal. App. Ct. Jan. 22, 2015).) The court alternately found that to the extent any claim was not procedurally barred, it failed on the merits, as the claim of perjury was based on minor conflicts in testimony insufficient to demonstrate falsity and so insignificant as to fail to support a reasonable probability the trial was affected, and: "The evidence of Chavira's guilt introduced at trial was so strong, and the conclusory and factually unsupported claims of prosecutorial misconduct and ineffective assistance of counsel raised by Chavira are so weak, that he has not shown 'a probability sufficient to undermine confidence in the outcome.'" (Id., quoting Strickland v. Washington, 466 U.S. 668, 694 (1984).)
On March 5, 2015, Petitioner filed a second habeas petition in the state superior court seeking an evidentiary hearing on his claim that his trial counsel failed to seek suppression of the cell phone evidence. (Lodgment No. 14.) On April 7, 2015, the state superior court denied the petition on the same basis it denied the claim in the first superior court habeas petition, because it could have been but was not raised on appeal. (Lodgment No. 15, In re Chavira, No. HC20860, order at 3 (Cal. Sup. Ct. April 7, 2015).)
On March 26, 2016, Petitioner filed a habeas petition in the state supreme court in which he raised the same claims presented in the superior and appellate courts, including claims one through eight and eleven here. (Lodgment No. 16.) That petition was denied on July 22, 2015, with an order which stated: "Petition for writ of habeas corpus denied." (Lodgment No. 17, In re Chavira, No. S225372, order (Cal. July 22, 2015).)
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