Colon v. Paramo

• Decision Date: 02 April 2014
• Docket Number: Case No. 1:11-cv-01420-LJO-BAM-HC
• Court: U.S. District Court — Eastern District of California
• Parties: BERNARDO COLON, Petitioner, v. DANIEL PARAMO, Warden, Respondent.

BERNARDO COLON, Petitioner, v. DANIEL PARAMO, Warden, Respondent.

Case No. 1:11-cv-01420-LJO-BAM-HC

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF CALIFORNIA

Dated: April 2, 2014

ORDER SUBSTITUTING DANIEL PARAMO,

WARDEN, AS RESPONDENT

FINDINGS AND RECOMMENDATIONS TO

DISMISS PETITIONER'S STATE LAW

CLAIM AND DENY THE PETITION FOR

WRIT OF HABEAS CORPUS (DOC. 1)

FINDINGS AND RECOMMENDATIONS TO

DIRECT THE ENTRY OF JUDGMENT FOR

RESPONDENT AND TO DECLINE TO ISSUE

A CERTIFICATE OF APPEALABILITY

OBJECTIONS DEADLINE:

THIRTY (30) DAYS AFTER SERVICE

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 through 304. Pending before the Court is the petition, which was filed on July 6, 2011. Respondent filed an answer on October 24, 2011, and Petitioner filed a traverse on November 16, 2011.

I. Jurisdiction and Substitution of Respondent

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); Furman v. Wood, 190 F.3d 1002, 1004 (9th Cir. 1999).

The challenged judgment was rendered by the Superior Court of the State of California, County of Kern (KCSC), which is located within the territorial jurisdiction of this Court. 28 U.S.C. §§ 84(b), 2254(a), 2241(a), (d). Further, Petitioner claims that in the course of the proceedings resulting in his conviction, he suffered violations of his constitutional rights. Accordingly, the Court concludes that it has jurisdiction over the subject matter of the action pursuant to 28 U.S.C. §§ 2254(a) and 2241(c)(3), which authorize a district court to 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. Williams v. Taylor, 529 U.S. 362, 375 n.7 (2000); Wilson v. Corcoran, 562 U.S. B, -, 131 S.Ct. 13, 16 (2010) (per curiam).

An answer was filed on behalf of Respondent Brenda M. Cash, who, pursuant to the judgment, had custody of Petitioner at the California State Prison at Los Angeles County, his institution of confinement at the time the petition and answer were filed. (Doc. 16.) Petitioner thus named as a respondent a person who had custody of 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. California Supreme Court, 21 F.3d359, 360 (9th Cir. 1994). The fact that Petitioner was transferred to the R. J. Donovan Correctional Facility (RJDCF) after the petition was filed does not affect this Court's jurisdiction; jurisdiction attaches on the initial filing for habeas corpus relief, and it is not destroyed by a transfer of the petitioner and the accompanying custodial change. Francis v. Rison, 894 F.2d 353, 354 (9th Cir. 1990) (citing Smith v. Campbell, 450 F.2d 829, 834 (9th Cir. 1971)).

Accordingly, the Court concludes that it has jurisdiction over the person of the Respondent.

However, in view of the fact that the warden at RJDCF is Daniel Paramo, it is ORDERED that Daniel Paramo, Warden of RJDCF, be SUBSTITUTED as Respondent pursuant to Fed. R. Civ. P. 25.¹

II. Procedural Summary

After a jury trial in the KCSC, Petitioner was convicted on January 10, 2008, of having possessed phencyclidine in 2006 in violation of Cal. Health & Saf. Code § 11377(a), misdemeanor driving with a suspended license with three prior convictions within five years of the commission of the offense in violation of Cal. Veh. Code § 14601.1(a) & (b)(2), and misdemeanor attempt to elude a peace officer in violation of Cal. Veh. Code § 2800.1. The KCSC found true allegations that Petitioner had suffered two prior serious felony convictions pursuant to Cal. Pen. Code §§ 667 and 1170.12.(LD 1, 793-95, 37-40, 918.)² Petitioner was sentenced on October 9, 2008, to twenty-five years to life for the drug possession and two concurrent six-month jail terms on the vehicular offenses after the court denied Petitioner's request that his two prior serious felony convictions be stricken. (Id. at 893-903, 915-19.)

The Court of Appeal of the State of California, Fifth Appellate District (CCA) affirmed the judgment on February 22, 2010. (Ans., exh. A, doc. 16-1, 1-46.)

The California Supreme Court denied Petitioner's petition for review on May 12, 2010. (LD 8.)

III. Factual Summary

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). This presumption applies to a statement of facts drawn from a state appellate court's decision. Moses v. Payne, 555 F.3d 742, 746 n.1 (9th Cir. 2009). The following factual summary, which omits data concerning the testimony of a criminalist that identified the substance as phencyclidine, is taken from the unpublished opinion of the CCA in The People v. Bernardo Colon, case number F056334, filed on February 22, 2010 (doc. 16-1, 2-4, 7-8):

FACTS

Around 9:50 p.m. on March 12, 2006, Bakersfield Police Officers Dillard and Carruesco were on patrol in a markedsquad car on Kentucky Street when they saw a Dodge Neon traveling in the opposite direction. The officers were aware that a Dodge Neon recently had been reported stolen, so Carruesco performed a U-turn and followed the car. The Dodge, which was driven by defendant, made several turns and the officers continued to follow it. The speed limit was 25 miles per hour, but the officers paced defendant's car at 35 miles per hour. Defendant accelerated away from the patrol car. The officers activated the patrol car's siren and flashing lights to conduct a traffic stop, but defendant did not pull over.

A brief pursuit ensued for about one mile, as defendant made numerous turns, violated several traffic laws, and accelerated to 45 miles per hour. Defendant was driving on streets which would have easily allowed him to pull to the side of the road, but he failed to heed the patrol car's siren and flashing lights. The pursuit lasted one to two minutes, and ended when defendant turned into a residential area, slowed down, and parked in front of the apartment complex where he lived.

The officers used the patrol car's loudspeaker to order the occupants out of the vehicle. Defendant and two passengers complied with the officers' orders and stepped out of the car. Defendant was immediately taken into custody. A woman emerged from the residence and introduced herself as defendant's wife.

The officers determined the Dodge was not stolen but that defendant was driving on a suspended or revoked license. Officer Dillard advised defendant of his rights pursuant to Miranda v. Arizona (1966) 384 U.S. 436, defendant said he understood and waived his rights, and Dillard asked defendant why he failed to pull over when the officers initiated the siren and lights. Defendant replied that he did not know the officers were trying to pull him over, and he just thought they were trying to go around him. Dillard asked: "[S]o when we first turned on our lights and sirens ... you didn't think we were trying to pull you over?" Defendant did not reply.

Officer Carruesco searched defendant and found a small piece of a plastic baggie in defendant's right front pants pocket. The baggie contained a white crystalline-like substance about "the size of a pencil eraser, not much bigger." Carruesco believed the substance was crystalmethamphetamine, which is similar in appearance to PCP. On cross-examination, Carruesco reviewed his report and conceded he might have found the substance in the smaller coin pocket of defendant's pants and not the regular pocket. Also on cross-examination, Carruesco acknowledged he did not find any drug paraphernalia on defendant or in the car.

....

Defense evidence

Cecilia Sandoval testified she lived with defendant. Sandoval testified that on the night of the incident, defendant returned from work, took a shower, and wore a pair of pants which he had just purchased from the Goodwill store on Union Avenue. Sandoval testified defendant had not laundered or worn those pants prior to that evening. Sandoval testified that later in the evening, defendant's coworkers arrived at their residence to get paid. Defendant and his friends left for the bank, and defendant intended to withdraw cash from the ATM to pay them.

The defense introduced evidence as to the police department's dispatch records of the pursuit of defendant, and that the attempted traffic stop began at 9:50 p.m. and the patrol units were cleared at 9:51 p.m., which meant the pursuit ended at that time. A defense investigator testified as to defendant's route while the officers followed him, and testified that defendant traveled a short distance between the beginning of the pursuit and when he arrived at his residence.

The defendant also introduced evidence about an unrelated incident to question Officer Carruesco's credibility. The incident occurred when Carruesco was on patrol at the Kern County Fair. Eric Barefield, an African-American, testified that he was just walking through the fair when Carruesco physically grabbed him, improperly escorted him out of the fair, and used a racial slur against him. In rebuttal, the prosecutor recalled the defense investigator, who testified that he interviewed Barefield about the incident at the fair, and Barefield was unable to identify the officer who made the racial slur. The prosecutor also recalled Officer Carruesco, who testified that

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