Hayes v. Giurbino, Civil No. 06cv2390-L(POR).
| Decision Date | 14 January 2008 |
| Docket Number | Civil No. 06cv2390-L(POR). |
| Court | U.S. District Court — Southern District of California |
| Parties | Laquan A. HAYES, Petitioner, v. George J. GIURBINO, Respondent. |
Laquan A. Hayes, Imperial, CA, pro se.
Attorney General, Robert M. Foster, State of California Office of the Attorney General, San Diego, CA, for Respondent.
ORDER ADOPTING THE REPORT AND RECOMMENDATION; DENYING PETITION FOR WRIT OF HABEAS CORPUS WITH PREJUDICE and DIRECTING ENTRY OF JUDGMENT
Laquan A. Hayes, a pro se state prisoner, seeks a writ of habeas corpus under 28 U.S.C. § 2254. The case was referred to Magistrate Judge Louisa S. Porter for Report and Recommendation ("Report"). The parties were given time in which to file objections to the Report. Neither party has filed objections nor sought an extension of time in which to file objections. Having reviewed the petition and the parties' submissions, the Court enters the following decision.
The duties of the district court in connection with a magistrate judge's Report and Recommendation are set forth in Rule 72(b) of the Federal Rules of Civil Procedure and 28 U.S.C. § 636(b)(1). The district court must "make a de novo determination of those portions of the report ... to which objection is made," and "may accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate." 28 U.S.C. § 636(b) (1); United States v. Remsing, 874 F.2d 614, 617 (9th Cir.1989); see also Wilkins v. Ramirez, 455 F.Supp.2d 1080, 1088 (S.D.Cal.2006). But when neither party objects to a Report and Recommendation, a district court need not review de novo the Report and Recommendation. See Wang v. Masaitis, 416 F.3d 992, 1000 n. 13 (9th Cir.2005).
After reviewing the Report in its entirety, the Court finds that the magistrate judge correctly concluded that petitioner's lengthy indeterminate sentence under California Penal Code § 667 did not violate clearly established federal law and that the state court did not violate petitioner's Eighth Amendment rights by not treating his conviction offense as a misdemeanor rather than as a felony. (Report at 5-7).
Based on the foregoing, the Court hereby. ADOPTS the Magistrate Judge's Report and Recommendation [doc. # 8] in its entirety. Petitioner's Petition for Writ of Habeas Corpus is DENIED with prejudice. The Clerk of the Court is directed to enter judgment in accordance with this Order.
IT IS SO ORDERED.
REPORT AND RECOMMENDATION THAT PETITION FOR WRIT OF HABEAS CORPUS BE DENIED
Petitioner Laquan A. Hayes, a state prisoner proceeding pro se, has filed a Petition for Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254. Petitioner's application raises one ground for relief. Petitioner contends that "[t]he trial court refused to strike my prior strike offenses, or reduce the current offense to a misdemeanor resulting in the imposition of a life sentence which constitutes cruel and unusual punishment under the 8th Amendment to the U.S. Constitution."1 (Doc. 1 at 6.) This Court has reviewed the Petition for Writ of Habeas Corpus, Respondent's Answer, Petitioner's Traverse, and all supporting documents. After thorough review, this Court finds that Petitioner is not entitled to the relief requested and recommends that the Petition for Writ of Habeas Corpus be DENIED.
Under 28 U.S.C. § 2254(e)(1), factual determinations by the state court are presumed correct unless the petitioner rebuts the presumption by clear and convincing evidence.2 Petitioner has not attempted to rebut the factual findings made by the state court. The following facts, therefore, are taken verbatim from the California Court of Appeal's opinion in Petitioner's case.
In 1990 [Petitioner] Hayes was convicted of gross vehicular manslaughter while intoxicated (§ 191.5(a)). He was driving with friends from Tijuana with a blood alcohol level of .30 percent. His vehicle collided with a truck and a passenger, Hayes's cousin, died of injuries sustained in the collision. Hayes was sentenced to a four-year prison term. In 1993, Hayes was convicted of two counts of second degree robbery (§§ 211, 212.5(c)), one involving theft of a vehicle while using a shotgun and the second occurring the same day involving robbery at a supermarket while using a shotgun. The robbery charges were brought and tried together (§ 667(a)(1)), and he was sentenced to a fourteen-year, four-month prison term.
On November 15, 2002, a San Diego police officer stopped a vehicle being driven by Hayes after observing it moving at a greater than normal speed in a trolley station parking lot. The officer observed Hayes's eyes were droopy and glassy and detected the odor of alcohol emanating from the vehicle. The officer arrested him for driving under the influence of alcohol. A breath test showed Hayes had a. 11 percent blood alcohol level.
(Lodgment 9 at 3.) On October 30, 2003, a jury convicted Petitioner of driving while having a measurable blood alcohol of 0.08 percent or more on November 15, 2002, in violation of California Vehicle Code § 23152(b). (Lodgment 1 at 189.) As a result of current and past offenses, Petitioner was sentenced to a term of twenty-seven-years-to-life. (Lodgment 1 at 159, 191.)
Petitioner appealed to the California Court of Appeal, Fourth Appellate District, Division One. In his appeal, Petitioner argued that the trial court erred in denying his motions to expunge two of his prior "strike" convictions or alternatively to reduce the current felony conviction to a misdemeanor offense. (Lodgment 6 at 10-25; Lodgment 8 at 1-4.) Petitioner also argued on appeal that his sentence of twenty-seven-years-to-life under California Penal Code § 667 violates federal and state constitutional prohibitions against cruel and unusual punishment. (Lodgment 6 at 26-31.) On June 15, 2005, Petitioner's conviction and sentence were affirmed by the California Court of Appeal. (Lodgment 9.)
On July 27, 2005, Petitioner sought review of the Court of Appeal's decision and filed a Petition for Review to the California Supreme Court. (Lodgment 10.) That Petition for Review was denied on September 26, 2005, without comment. (Lodgment 11.)
Petitioner filed the current petition on October 27, 2006. Respondent filed an Answer on March 23, 2007. Petitioner filed his Traverse on April 30, 2007. By this Court's order, the case was deemed submitted on the papers without oral argument on May 3, 2007. (Doc. 5 at 3.)
Petitioner's habeas corpus petition raises one ground for relief. Petitioner states that the trial court refused to expunge prior "strike" offenses, or reduce the current offense to a misdemeanor, resulting in the imposition of sentence which constitutes cruel and unusual punishment under the Eighth Amendment of the U.S. Constitution. (Doc. 1 at 6.) Though Petitioner describes his sentence as a "life sentence," it is in fact an indeterminate twenty-seven-years-to-life sentence. (Lodgment 1 at 159, 191.) Petitioner's one ground for relief encompasses three different claims: first, that Petitioner's sentence violates the Eighth Amendment's prohibition of cruel and unusual punishment; second, that the trial court's refusal to reduce the current offense to a misdemeanor was improper; and third, that the trial court's refusal to expunge prior "strike" offenses was in error.
The Antiterrorism and Effective Death Penalty Act, ("AEDPA"), Pub.L. No. 104-132, 110 Stat. 1214, applies to all federal habeas petitions filed after April 24, 1996. Lindh v. Murphy, 521 U.S. 320, 117 S.Ct. 2059, 138 L.Ed.2d 481 (1997). The current petition was filed October 27, 2006, and is governed by the AEDPA. The AEDPA sets forth the following scope of review for federal habeas corpus claims:
The Supreme Court, a Justice thereof, a circuit judge, or a district court shall entertain an application for a writ of habeas corpus in behalf of a person in custody pursuant to the judgment of a State court only on the ground that he is in custody in violation of the Constitution or laws or treaties of the United States.
28 U.S.C. § 2254(a).
To obtain federal habeas relief, Petitioner must satisfy either § 2254(d)(1) or (d)(2). Williams v. Taylor, 529 U.S. 362, 404-5, 120 S.Ct. 1495, 146 L.Ed.2d 389 (2000). 28 U.S.C. § 2254(d) reads:
(d) An application for a writ of habeas corpus on behalf of a person in custody pursuant to the judgment of a State court shall not be granted with respect to any claim that was adjudicated on the merits in State court proceedings unless the adjudication of the claim —
(1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States; or
(2) resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding.
The Supreme Court interprets § 2254(d)(1) as follows:
Under the "contrary to" clause, a federal habeas court may grant the writ if the state court arrives at a conclusion opposite to that reached by this Court on a question of law or if the state court decided a case differently than this Court has on a set of materially indistinguishable facts. Under the "unreasonable application" clause, a federal habeas court may grant the writ if the state court identifies the correct governing legal principle from this Court's decisions but unreasonably applies that principle to the facts of the prisoner's case.
Williams v. Taylor, 529 U.S. at 412-413, 120 S.Ct. 1495. Under the "unreasonableness clause," a federal habeas court must give deference to the state court's decision. Lockyer v. Andrade, 538 U.S. 63, 75, 123 S.Ct. 1166, 155 L.Ed.2d 144 (2003). "[A] federal habeas court may not issue the writ simply because that court concludes in its...
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