Latre v. Carey

• Decision Date: 05 July 2011
• Docket Number: 1:09-CV-02177 DLB HC
• Parties: REYNALDO A. LATRE, Petitioner, v. TOM L. CAREY, Respondent.
• Court: U.S. District Court — Eastern District of California

REYNALDO A. LATRE, Petitioner,

v.TOM L. CAREY, Respondent.

1:09-CV-02177 DLB HC

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF CALIFORNIA

Dated: July 5, 2011

ORDER DENYING PETITION FOR WRIT

OF HABEAS CORPUS

ORDER DIRECTING CLERK OF THE

COURT TO ENTER JUDGMENT

ORDER DENYING CERTIFICATE OF

APPEALABILITY

Reynaldo A. Latre (hereinafter "Petitioner") is a state prisoner proceeding pro se with a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254.

PROCEDURAL HISTORY

Petitioner is currently in the custody of the California Department of Corrections and Rehabilitation pursuant to a judgment of the Fresno County Superior Court. A jury found Petitioner guilty of possession with intent to pass a counterfeit bill (Cal. Penal Code § 475(a)). See Respondent ("Resp't") Lodged 1. Petitioner admitted to a prior strike conviction (Cal. Penal Code § 667(b)-(i)) and a prior prison term, (Cal. Penal Code § 667.5(b)). See Resp't Lodged 1; see also Clerk's Transcript ("CT") at 493. The trial court imposed a sentence of the upper term of three-years doubled for the prior strike plus a one-year enhancement for the prior prison term, for a total sentence of seven years. See Resp't Lodged 1.

On June 17, 2008, in its opinion following Petitioner's direct appeal, the California Court of Appeal affirmed the judgment. See Resp't Lodged 1. Petitioner filed a petition for review in the California Supreme Court on July 21, 2008. See Resp't Lodged 2. The California Supreme Court denied the petition for review on August 27, 2008. See Resp't Lodged 3.

On April 10, 2009, Petitioner filed a habeas petition in the California Supreme Court, which the court denied on August 19, 2009.

On December 9, 2009, Petitioner filed the instant federal petition for writ of habeas corpus. See Doc. No. 1. On April 16, 2010, Respondent filed an answer to the petition. See Doc. No. 14. The parties have consented to Magistrate Jurisdiction. See Doc. Nos. 6, 11.

FACTUAL BACKGROUND¹

[Petitioner] arrived at Table Mountain Casino with Melissa Felix, T.J., and two others on September 9, 2006. Felix and T.J. went to a card table. Felix placed two $100 bills on the table. The dealer used a special pen to screen for counterfeit bills. If a mark from the pen on a bill appeared black, the bill was fake, but if the ink turned yellow or tan, the bill was probably real. Felix's two bills passed the pen test; she received chips and played. Felix and T.J. moved to a second table. Each exchanged two $100 bills for chips; the bills passed the pen test. As Felix and T.J. played, [Petitioner] came to the table to watch and to advise them how to bet. Felix and T.J. moved to a third table. Each again tendered two $100 bills for chips. The bills again passed the pen test, and the dealer placed T.J.'s bills in his drop box and gave her chips. As he was handling Felix's bills, however, he thought they did not feel like real money. Then he noticed that the two bills had the same serial number. A security officer took the two bills to the cashiers' cage, where they were tested by machine and found to be counterfeit. The security officer led Felix and T.J. to the cage and called the tribal police.

Seeing Felix and T.J. led away, [Petitioner] asked the security officer what was happening. "[W]hat's going on with my girls?" he asked. [Petitioner] referred to Felix and T.J. as his girls. T.J., who was 17 years old on the date of the incident, knew [Petitioner] as "Rey Love." When told that the women were being questioned about counterfeit money, [Petitioner] took out some of his own money and said, "hey, I got all this money, this money ain't fake."

[Petitioner], Felix, and T.J. waited together while casino employees investigated. The money from the drop boxes at each of the tables where Felix and T.J. had played was collected and examined. Money from the purse kept by an attendant who had given Felix change was also examined. Meanwhile, a tribal police officer who had arrived to help with the investigation asked [Petitioner] to show him the money in his wallet. [Petitioner] complied. He had 15 $100 bills, which were tested by machine. One was counterfeit. A total of 13 counterfeit $100 bills, including the one from [Petitioner's] wallet, were identified and turned over to the sheriff's department.

A Secret Service agent later examined the 13 bills and confirmed that they were all counterfeit. Further, all 13 bills shared the same check letter, quadrant number, face plate number, and back plate number. This meant that all 13 were made from the same original.[FN2]FN2. The 13 bills also shared a total of four serial numbers, but this did not mean there were four originals. The sameness of the other identifying numbers meant there was a single original, according to the Secret Service agent. She said that counterfeiters sometimes change serial numbers on bills made from a single original to increase the appearance of genuineness.

The district attorney filed an information charging [Petitioner] and Felix as codefendants. Juvenile charges against T.J. were filed and then dismissed in exchange for her testimony against [Petitioner] and Felix. The information charged [Petitioner] with (1) passing or attempting to pass counterfeit currency (Pen. Code, § 470, subd. (d)), and (2) possessing or receiving counterfeit currency with intent to pass it or facilitate its passage (§ 475, subd. (a)). Felix was charged with four counts of passing or attempting to pass counterfeit currency (§ 470, subd. (d)) and one count of possessing methamphetamine (Health & Saf. Code, § 11377, subd. (a)). The information alleged that [Petitioner] had a prior strike (a robbery, § 211) within the meaning of the three-strikes law and was eligible for an enhancement for serving a prior prison term. Felix was also charged as a second striker because of a prior residential burglary in the State of Washington.

See Resp't Lodged 1 (some footnotes omitted).

DISCUSSION

I. Jurisdiction and Venue

A person in custody pursuant to the judgment of a state court may file a petition for a writ of habeas corpus in the United States district courts if the custody is in violation of the Constitution or laws or treaties of the United States. 28 U.S.C. § 2254(a); 28 U.S.C. § 2241(c)(3); Williams v. Taylor, 529 U.S. 362, 375, n.7 (2000). Venue for a habeas corpus petition challenging a conviction is proper in the judicial district in which the petitioner was convicted. 28 U.S.C. § 2241(d).

As Petitioner asserts that he is in custody pursuant to a State conviction which violated his rights under the United States Constitution, the Court has jurisdiction over this action. 28 U.S.C. § 2254(a). Petitioner was convicted in Fresno County, California, which is within the Eastern District of California, and thus venue is proper in the Eastern District. 28 U.S.C. § 84; 28 U.S.C. § 2241(d).

II. Standard of Review

On April 24, 1996, Congress enacted the Anti-terrorism and Effective Death Penalty Act of 1996 ("AEDPA"), which applies to all petitions for a writ of habeas corpus filed after the statute's enactment. Lindh v. Murphy, 521 U.S. 320, 326-27 (1997); Jeffries v. Wood, 114 F.3d 1484, 1499 (9th Cir. 1997). The instant petition was filed after the enactment of AEDPA and is consequentlygoverned by its provisions. See Lockyer v. Andrade, 538 U.S. 63, 70 (2003). Thus, the petition "may be granted only if [Petitioner] demonstrates that the state court decision denying relief was 'contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States.'" Irons v. Carey, 505 F.3d 846, 850 (9th Cir. 2007) (quoting 28 U.S.C. § 2254(d)(1)), overruled in part on other grounds, Hayward v. Marshall, 603 F.3d 546, 555 (9th Cir. 2010) (en banc); see Lockyer, 538 U.S. at 70-71.

Title 28 of the United States Code, section 2254 remains the exclusive vehicle for Petitioner's habeas petition as Petitioner is in the custody of the California Department of Corrections and Rehabilitation pursuant to a state court judgment. See Sass v. California Board of Prison Terms, 461 F.3d 1123, 1126-27 (9th Cir. 2006) overruled in part on other grounds, Hayward, 603 F.3d at 555. As a threshold matter, this Court must "first decide what constitutes 'clearly established Federal law, as determined by the Supreme Court of the United States.'" Lockyer, 538 U.S. at 71 (quoting 28 U.S.C. § 2254(d)(1)). In ascertaining what is "clearly established Federal law," this Court must look to the "holdings, as opposed to the dicta, of [the Supreme Court's] decisions as of the time of the relevant state-court decision." Id. (quoting Williams, 529 U.S. at 412). "In other words, 'clearly established Federal law' under § 2254(d)(1) is the governing legal principle or principles set forth by the Supreme Court at the time the state court renders its decision." Id. Finally, this Court must consider whether the state court's decision was "contrary to, or involved an unreasonable application of, clearly established Federal law." Id. at 72 (quoting 28 U.S.C. § 2254(d)(1)). "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 [the Supreme] Court on a question of law or if the state court decides a case differently than [the] Court has on a set of materially indistinguishable facts." Williams, 529 U.S. at 413; see also Lockyer, 538 U.S. at 72. "Under the 'unreasonable application clause,' a federal habeas court may grant the writ if the state court identifies the correct governing legal principle from [the] Court's decisions but unreasonably applies that principle to the facts of the prisoner's case." Williams, 529 U.S. at 413. "[A] federal court may not issue the writ simply because the court concludes in its independent judgment that the relevant state court decision applied clearly established federal law erroneously or incorrectly. Rather, that...