Diaz v. Castalan, CV 06-2434-FMC (RNB).

CourtUnited States District Courts. 9th Circuit. United States District Courts. 9th Circuit. Central District of California
Writing for the CourtFlorence-Marie Cooper
Citation625 F.Supp.2d 903
PartiesMike DIAZ, Petitioner, v. A.W. CASTALAN, Warden, Respondent.
Docket NumberNo. CV 06-2434-FMC (RNB).,CV 06-2434-FMC (RNB).
Decision Date30 December 2008
625 F.Supp.2d 903
Mike DIAZ, Petitioner,
A.W. CASTALAN, Warden, Respondent.
No. CV 06-2434-FMC (RNB).
United States District Court, C.D. California.
December 30, 2008.

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Mike Diaz, Crescent City, CA, pro se.



Pursuant to 28 U.S.C. § 636, the Court has reviewed the operative First Amended Petition, all the records and files herein, along with the Report and Recommendation of the United States Magistrate Judge. Objections to the Report and Recommendation have been filed herein. Having made a de novo determination of those portions of the Report and Recommendation to which objections have been made, the Court concurs with and adopts the findings, conclusions and recommendations of the Magistrate Judge.

IT THEREFORE IS ORDERED that Judgment be entered denying the First Amended Petition and dismissing this action with prejudice.


ROBERT N. BLOCK, United States Magistrate Judge.

This Report and Recommendation is submitted to the Honorable Florence-Marie Cooper, United States District Judge, pursuant to the provisions of 28 U.S.C. § 636 and General Order 194 of the United States District Court for the Central District of California.

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On April 20, 2006, petitioner filed a Petition for Writ of Habeas Corpus by a Person in State Custody herein. The case was assigned to Magistrate Judge Jennifer Lum, who issued an Order Dismissing Petition with Leave to Amend on April 28, 2006. Petitioner then filed a First Amended Petition ("FAP") on May 22, 2006. In accordance with the Order Requiring Answer/Return to Petition, and following one extension of time, respondent filed an Answer to the FAP along with a supporting Memorandum of Points and Authorities ("Ans. Mem.") on August 9, 2006. In that Answer, respondent contended inter alia that Ground two (based on an alleged violation of Faretta v. California, 422 U.S. 806, 95 S.Ct. 2525, 45 L.Ed.2d 562 (1975)) of the FAP was unexhausted.

On October 16, 2006, by Order of the Chief Magistrate Judge, the case was reassigned to Magistrate Judge John Rayburn. On February 6, 2007, Magistrate Judge Rayburn issued a Minute Order requiring further briefing on Ground four (petitioner's sentencing error claim) in light of the Supreme Court's issuance of Cunningham v. California, 549 U.S. 270, 127 S.Ct. 856, 868, 166 L.Ed.2d 856 (2007). In a Supplemental Answer filed on March 7, 2005, respondent maintained that the sentencing error claim was procedurally defaulted, barred by the non-retroactivity doctrine of Teague v. Lane, 489 U.S. 288, 109 S.Ct. 1060, 103 L.Ed.2d 334 (1989), and in any event, any error was harmless. Although petitioner requested and was granted an extension of time to file a reply brief, he did not do so. On May 15, 2007, the Court issued an Order to Show Cause why the Court should not require further exhaustion of the sentencing error claim in light of Cunningham. Petitioner's subsequent request for an extension of time to file a reply brief was granted. Instead of filing a reply, however, petitioner filed a Motion to Stay Federal Proceedings so that he could return to State court to exhaust his Cunningham and Faretta claims. In an Order Re Further Exhaustion and Stay prepared by Judge Rayburn and issued by the District Court Judge, the matter was stayed so petitioner could return to State court to exhaust his Cunningham and Faretta claims.

At the direction of the Court, petitioner subsequently filed reports regarding the status of his habeas petition filed in the California Supreme Court. Then, on July 2, 2008, by Order of the Chief Magistrate Judge, the case was reassigned to this Court's calendar. On July 16, 2008, the Court issued an Order Re Further Proceedings wherein it observed that the California Supreme Court had denied petitioner's habeas petition on June 11, 2008. The Court ordered respondent to serve and file a Second Supplemental Answer addressing petitioner's second ground for relief (the Faretta claim) on the merits, and rebriefing the fourth ground for relief (the Cunningham claim) in light of the Ninth Circuit's recent decision in Butler v. Curry, 528 F.3d 624 (9th Cir.2008). Respondent filed the Second Supplemental Answer along with a supporting Memorandum of Points and Authorities ("Sec.Supp. Ans.Mem.") on September 12, 2008, following one extension of time. On October 23, 2008, petitioner filed a Reply to the original Answer ("Reply") and a Reply to the Second Supplemental Answer ("Supp.Reply").

Thus, this matter now is ready for decision. For the reasons discussed hereafter, the Court recommends that the FAP be denied.


On December 16, 2003, a Los Angeles Court jury found petitioner guilty of evading

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a police officer, felon in possession of a firearm, and felon carrying a loaded firearm. (See Clerk's Transcript on Appeal ["CT"] 119-21; 3 Reporter's Transcript on Appeal ["RT"] 249-50). In a bifurcated proceeding, the jury also found true the sentence allegations that petitioner had suffered two prior convictions within the meaning of Cal.Penal Code § 12021(a) (1) and two prior serious or violent felony convictions within the meaning of Cal.Penal Code § § 1170.12(a)-(d), 667(b)-(i), and 667.5(b). (See CT 149; 3 RT 288-89). At a sentencing hearing held on January 6, 2003, the trial court struck one of petitioner's prior serious or violent felony convictions (i.e., a strike) by agreement of counsel, and then sentenced petitioner to an aggregate term of eight years four months in state prison. (See CT 177-78; 3 RT 297, 309-12).1

Petitioner appealed his conviction and sentence to the California Court of Appeal raising inter alia claims generally corresponding to the claims being alleged by him herein. In an unpublished decision filed on January 11, 2005, the California Court of Appeal rejected petitioner's claims and affirmed the judgment. (See Respondent's Notice of Lodging of Documents ["Lodged Doc."] Nos. 5, 6, 9). Petitioner's Petition for Rehearing filed on January 26, 2005 was denied by the California Court of Appeal in an Order Modifying Opinion and Denying Petition for Rehearing filed on February 8, 2005. (See Lodged Doc. Nos. 10, 11). Petitioner's ensuing Petition for Review to the California Supreme Court raising claims generally corresponding to the first, third, and fourth claims of the FAP was summarily denied on March 30, 2005 "without prejudice to any relief to which [petitioner] might be entitled after [the determination] in People v. Black, S126182 ... [of] the effect of Blakely v. Washington (2004) 542 U.S. 296, 124 S.Ct. 2531, 159 L.Ed.2d 403, on California law." (See Lodged Doc. Nos. 12, 13).

As noted, petitioner filed a habeas petition in the California Supreme Court to exhaust his second and fourth grounds for relief on December 8, 2007.2 That petition was summarily denied without comment or citation of authority on June 11, 2008. (See Lodged Docs. B, C).


Since petitioner is not challenging the sufficiency of the evidence to support his conviction, the following summary is taken from the "Background" section of the California Court of Appeal opinion.

On June 3, 2003, at approximately 3:40 a. m., Los Angeles County Deputy Sheriff Jason Biss was driving a marked patrol car south on Sierra Highway near Linda Vista when he observed [petitioner] driving a white Chevrolet sedan straddling the number one and two lanes. Deputy Biss followed [petitioner] for approximately one mile, and appellant accelerated his vehicle to approximately 60 to 70 miles

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per hour. [Petitioner] drove through a red light, nearly colliding with another vehicle, and Detective Biss turned on his siren and roof light and pursued [petitioner]. Deputy Biss saw [petitioner] run two more red lights, swerving between lanes and moving at a speed of approximately 60 to 90 miles per hour. [Petitioner] eventually drove up an embankment and crashed into a hillside. When Detective Biss drove up behind appellant's vehicle, [petitioner] put his vehicle in reverse, causing it to collide with Biss's patrol car. Two other deputies arrived and arrested [petitioner]. Deputy Cameron Drake found a loaded .38 semiautomatic handgun registered to Charles Moore in [petitioner's] car.

[Petitioner] testified that on the date of his arrest, he was driving on Sierra Highway and gave a ride to a man who was on foot. While in the car, the man asked [petitioner] where the man could obtain narcotics. [Petitioner] was on parole and did not want to have anything further to do with the man, so he pulled over and threw him out of the car. When [petitioner] continued driving, he noticed some clothing on the floor of the car that he assumed belonged to the man. [Petitioner] picked up the clothes and noticed a gun on the floor. [Petitioner] had never seen the gun before. [Petitioner] noticed a patrol car behind him but did not stop. [Petitioner] denied running any red lights or backing his car into Deputy Biss's car. (Lodged Doc. A at 3-4).


1. The trial court abused its discretion by failing to conduct an on-the-record investigation into whether there was a manifest need to restrain petitioner during trial. (See FAP at ¶ 7a(1); Reply at 1-3).

2. The trial court committed reversible error by denying petitioner's request to represent himself and to appoint standby counsel. (See FAP at ¶ 7b(1); Supp. Reply at 2-4).

3. The conviction must be reversed because petitioner was denied his federal constitutional right to be present at the hearing where the court determined that he would be shackled. (See FAP at ¶ 7c(1); Reply at 3-4).

4. The trial court's imposition...

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    ...a defendant under Allen "]; Campbell v. Rice (9th Cir. 2005) 408 F.3d 1166, 1169, fn. 1, 1172-1173 ; Diaz v. Castalan (C.D.Cal. 2008) 625 F.Supp.2d 903, 921.) Indeed, the trial court reasonably believed "that despite any promises to the contrary, Mr. Johnson will continue to do any and ever......

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