Espinoza v. Hatton

• Decision Date: 28 January 2020
• Docket Number: Case No.: 10cv397-WQH-BGS
• Court: U.S. District Court — Southern District of California
• Parties: ROGELIO CUEVAS ESPINOZA, Petitioner, v. SHAWN HATTON, Warden, Respondent.

ROGELIO CUEVAS ESPINOZA, Petitioner, v. SHAWN HATTON, Warden, Respondent.

Case No.: 10cv397-WQH-BGS

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF CALIFORNIA

January 28, 2020

REPORT AND RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE RE: DENIAL OF PETITION FOR WRIT OF HABEAS CORPUS POST REMAND AND EVIDENTIARY HEARING

I. INTRODUCTION

Rogelio Cuevas Espinoza ("Petitioner"), a state prisoner proceeding in forma pauperis,¹ filed a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254 ("Petition") on February 18, 2010 seeking relief from his March 2006 convictions ofmayhem and assault with a semi-automatic firearm in San Diego County Superior Court, Case No. SCS158094. He is serving a sentence of 29 years to life for those convictions.²

As is relevant to this proceeding, the Petition included an ineffective assistance of counsel claim against Petitioner's trial attorney for failing to interview two witnesses, Miguel R. Rubio ("Rubio") and Silvia Escamilla ("Escamilla"), whose sworn declarations were submitted with the Petition. On September 10, 2013, United States District Judge William Q. Hayes adopted in part a Report and Recommendation issued by the undersigned judge, denying the Petition and granting a certificate of appealability as to the ineffective assistance of counsel claim discussed above. (ECF No. 47.) On December 19, 2016, the Ninth Circuit issued a 2 to 1 decision remanding this action back to this Court "for an evidentiary hearing on counsel's failure to interview the two witnesses." (Memorandum Disposition, ECF No. 64 at 5.)³ Following remand, Judge Hayes referred the matter to the undersigned judge to hold the evidentiary hearing ("Hearing") and issue a report and recommendation. (ECF No. 65.)

This case is before the undersigned Magistrate Judge pursuant to Southern District of California Civil Local Rule 72.1(d) for a report and recommendation. The Court submits this Report and Recommendation to United States District Judge William Q. Hayes pursuant to 28 U.S.C. § 636(b)(1) and Civil Local Rule HC.2 of the United States District Court for the Southern District of California.

Upon consideration of the evidence and testimony adduced at the Hearing, the parties' post-Hearing briefing and controlling authority and for the reasons discussedbelow, it is RECOMMENDED that Judge Hayes find: (1) Miguel Rubio and Sylvia Escamilla are not credible witnesses; (2) trial counsel was not deficient in not interviewing them and presenting their testimony at trial; (3) trial counsel's actions did not constitute ineffective assistance of counsel; and accordingly, (4) the Petition should be DENIED.

II. BACKGROUND

A. Factual Background

The following summary of the events at issue is taken from the Ninth Circuit's decision:

On March 10, 2001, Espinoza attended a relative's party at a convention hall in celebration of a baptism. At the party, a fight erupted between Espinoza and two brothers, Arturo Rivera (Arturo) and Adan Rivera (Adan). Espinoza was wounded during the fight, and then retreated. Espinoza's uncle handed him a semi-automatic handgun and showed him how to use it.

Shortly thereafter, a second confrontation occurred outside the party. Espinoza fired the gun several times at the ground, in the air, and in Arturo's general direction to keep Arturo and Adan at bay. A crowd quickly gathered, and a struggle ensued to wrest the gun away from Espinoza. Espinoza fired the gun during this struggle several times in various directions, by his account, "because people were 'yanking' at his hand." Arturo was shot in the right eye, which he consequently lost. Forensic evidence suggested that Arturo was shot from a distance of more than three or four feet. Eight cartridge casings and a bullet fragment were recovered. Forensics showed the bullets had all been fired from the same gun, while the shooter was moving.

Espinoza was charged with attempted murder, mayhem, and assault with a semi-automatic weapon. Espinoza was the only defense witness at his trial, testifying that the shooting was accidental, that he did not intend to actually shoot Arturo. The jury deliberated for three days and requested the taped interviews during deliberations. Ultimately, the jury deadlocked on the attempted murder charge, but convicted Espinoza on the assault and mayhem charges. He was sentenced to four years for mayhem and a consecutive term of 25 years to life in prison for the assault conviction.

(Mem. Disp. at 2-4.) Additional summaries of the underlying facts of this case are provided in this Court's September 4, 2012 Report and Recommendation (ECF No. 40)and District Judge William Q. Hayes' September 10, 2013 Order (ECF No. 47). (See ECF Nos. 40 at 2-4; 47 at 1-3.)

B. Procedural Background

In March of 2006, roughly five years after the shooting, a jury convicted Petitioner of mayhem involving the intentional and personal discharge of a firearm that caused great bodily injury, Cal. Pen. Code §§ 203, 12022.53(d), and assault with a semi-automatic firearm involving the personal use of the firearm and personal infliction of great bodily injury. Id. §§ 245(b), 12022.5(a)(1); 12022.7(a). The jury deadlocked on a count of attempted murder and the court declared a mistrial on that count. The court sentenced Petitioner to a four-year middle term for mayhem and a consecutive term of 25 years to life for personally discharging a firearm and causing great bodily injury during the mayhem. Id. § 12022.53(d). The court stayed the remaining terms for the other counts and enhancements. Id. § 654. (Lodgment 6.)

Petitioner then appealed the convictions in the Fourth District of the California Court of Appeal. (Lodgments 3-5.) On direct appeal, he raised no ineffective assistance of counsel claims. (Lodgment 3 at 18, 38, 50; Lodgment 6 at 2.) The state appellate court unanimously affirmed the trial court's decision. (Lodgment 6 at 16.) Next, Petitioner sought review of the appellate court decision before the California Supreme Court. (Lodgment 7.) The California Supreme Court denied Petitioner's state petition without comment. (Lodgment 8.)

On August 31, 2009, Espinoza filed a Petition for Writ of Habeas Corpus with the California Supreme Court. (Lodgment 9.) The state habeas petition raised claims alleging ineffective assistance of trial and appellate counsel. The California Supreme Court denied the state petition without comment.⁴ (Lodgment 10.)

On February 18, 2010, Espinoza filed a Petition for Writ of Habeas Corpus (the "Petition") in this Court asserting three grounds for review, including Petitioner's Sixth Amendment ineffective assistance of counsel claim regarding trial counsel's purported failure to interview witnesses. ("Petition", ECF No. 1.) Respondent filed an answer on Mary 28, 2010. (ECF No. 16.)

On September 4, 2012, this Court issued a Report and Recommendation recommending the Petition be denied. (ECF No. 40.) On September 10, 2013, United States District Judge William Q. Hayes adopted the Report and Recommendation in part, denying the Petition and granting a certificate of appealability as to the ineffective assistance of counsel claim discussed above. (ECF No. 47.) Petitioner appealed. (ECF No. 49.)

On December 19, 2016, the Ninth Circuit issued a 2 to 1 decision reversing the Petition's denial and remanding this action back to this Court "for an evidentiary hearing on counsel's failure to interview the two witnesses." (Mem. Disp. at 5.) Following remand, Judge Hayes referred the matter to the undersigned judge to hold an evidentiary hearing ("Hearing") and issue a Report and Recommendation. (ECF No. 65.)

The Hearing took place over four days: February 28, 2018; March 2, 2018;⁵ March 9, 2018; and September 14, 2018.⁶ (ECF Nos. 110, 111, 112, 136.) Following numerousextensions, Respondent's post-Hearing brief was filed on August 15, 2019 (ECF No. 152) and Petitioner's post-Hearing brief was filed on September 12, 2019 (ECF No. 157).⁷

III. SCOPE OF EVIDENTIARY HEARING ON REMAND

In their post-Hearing briefs, Petitioner and Respondent take differing views of the scope of the Ninth Circuit's remand. Consistent with prior filings, Petitioner argues for a more expansive view of the Ninth Circuit's remand. He argues now that the Ninth Circuit's order requires the Court to address whether trial counsel was deficient for (1) failing to interview witnesses other than Miguel Rubio and Sylvia Escamilla who provided statements in police reports purportedly identifying a shooter whose description did not match that of Petitioner and thus (2) selecting the "weak and inconsistent defenses" of self-defense and accidental shooting. (ECF No. 157 at 13-16, 26-29; see ECF No. 138 at 2.) Respondent argues the rule of mandate limits the issues to be decided in this proceeding to whether (1) Rubio and Escamilla are credible witnesses and (2) if trial counsel was deficient for failing to investigate and present their testimony at trial. (ECF No. 152 at 5-6.) In keeping with its prior ruling, this Court disagrees with Petitioner's framing of the scope of the remand. (See ECF No. 140 at 4-5.)

The Ninth Circuit has "repeatedly held, in both civil and criminal cases, that a district court is limited by this court's remand in situations where the scope of the remand is clear." United States v. Thrasher, 483 F.3d 977, 982-83 (9th Cir. 2007) (quoting Mendez-Gutierrez v. Gonzales, 444 F.3d 1168, 1172 (9th Cir. 2006)) (holding the district court didnot err in refusing to consider the merits of an ineffective assistance of counsel argument based on new evidence presented during a post-appeal evidentiary hearing, as the case was "remanded for a single purpose", a hearing to resolve a critical disputed fact, and thus "the plain language of the disposition precluded the district court from considering any other arguments concerning [counsel's] effectiveness"); see Holmes v. Miller, 768 F. App'x 781, 782-83 (9th Cir. 2019) (affirming the district court ...