Ochoa v. Thomas
| Decision Date | 02 June 2021 |
| Docket Number | CV 11-6864-JGB (GJS) |
| Parties | JORDY OCHOA, Petitioner v. L.R. THOMAS, et al., Respondents. |
| Court | U.S. District Court — Central District of California |
FINAL REPORT AND RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE
This Final Report and Recommendation is submitted to United States District Judge Jesus G. Bernal, pursuant to 28 U.S.C. § 636 and General Order No. 05-07 of the United States District Court for the Central District of California.
This case was filed nearly a decade ago and had a long and complicated history before it was ultimately referred to the undersigned. The Court will therefore summarize the case's procedural history in brief.
On August 19, 2011, Petitioner, on a pro se basis filed a habeas petition pursuant to 28 U.S.C. § 2254. [Dkt. 1, “Petition.”] The Petition challenged an August 26, 2009 state court conviction in Los Angeles County Superior Court Case No. BA349945 (“State Conviction”) and raised a single federal habeas claim alleging that “Petitioner's 5th Amendment's Protection Against Double Jeopardy Was Violated [sic]” by his retrial following a finding in his favor at his parole revocation hearing, given that the California Court of Appeal had found that the threshold requirements of collateral estoppel had been satisfied. [Petition at 6-7.] Respondent filed an Answer and lodged certain portions of the state record. [Dkt. 20 “Lodg.”] Petitioner did not file a Reply and the case, therefore, was under submission as of early 2012. [See Dkt. 21.]
In August 2012, Petitioner moved to have the Office of the Federal Public Defender appointed as counsel, and the originally-assigned United States Magistrate Judge (Carla M Woehrle) granted the motion. [Dkts. 22-23.] Petitioner thereafter sought eight extensions of time to file a Reply to the Answer, and his requests were granted. [Dkts. 24-40.]
Despite his repeated extension requests, Petitioner did not file a Reply. Instead, in May 2013, he filed a motion seeking leave to amend the Petition to add “two new claims” [Dkt. 41, “Amendment Motion”] and lodged portions of the Clerk's Transcript and the Reporter's Transcript from the State Conviction proceedings [Dkts. 43-1 through 43-10].[1] With the Amendment Motion, Petitioner lodged a Proposed First Amended Petition that pleaded a double jeopardy claim now supported by and based on arguments involving federal constitutional principles and federal law (and which added a new related ineffective assistance of trial counsel subclaim, collectively alleged as Ground Three) and added two entirely new claims, one based on “actual innocence” (Ground One) and the other alleging that trial counsel provided ineffective assistance in at least 15 respects (Ground Two). [Dkt. 41-2, along with attached Exhibits 1-24, “First Amended Petition” or “FAP”.] Concurrently, Petitioner filed a motion to stay the case, pursuant to Rhines v. Weber, 544 U.S. 269 (2005), while he pursued exhaustion of the new claims. [Dkt. 42 and Exs. 25-29, “Stay Motion.”] After receiving six extensions of time, Respondent filed an Opposition to both the Amendment Motion and the Stay Motion on October 11, 2013 [Dkt. 61]. Respondent reiterated his contention - made earlier in his Answer to the original Petition - that Petitioner had not exhausted a federal double jeopardy claim through his direct appeal and had presented only a state law collateral estoppel claim, as the California Court of Appeal found. [Id. at 5.] On November 8 2013, Petitioner filed a Reply [Dkt. 64]. The Reply did not address Respondent's above-noted contention and argued that all of Petitioner's claims were exhausted due to his efforts to pursue habeas relief at the trial court and California Court of Appeal levels. [Id. at 4-7.]
On January 10, 2014, Judge Woehrle granted the Stay Motion and issued a Rhines stay of this case. [Dkt. 65.] While Petitioner's state exhaustion efforts were pending, on March 28, 2014, Judge Woehrle vacated the Amendment Motion in light of the pending stay proceedings. Her Order provided that Petitioner could “renew” the Amendment Motion following the completion of his state exhaustion proceedings. [Dkt. 70.]
On September 17, 2014, Petitioner filed a notice advising that the California Supreme Court had denied his habeas petition, and he asked to renew the Amendment Motion. [Dkt. 79.] On September 18, 2014, Judge Woehrle lifted the Rhines stay and directed the parties to meet and confer regarding a schedule for further briefing on the Amendment Motion. [Dkt. 80.] In response, the parties stipulated that Respondent would file an Answer to the FAP and Petitioner would file a Reply to that Answer by set dates (even though the Amendment Motion remained pending), and Judge Woehrle so ordered. [Dkts. 82, 84.]
On September 24, 2014, Petitioner filed Exhibit 30 to the First Amended Petition. [Dkt. 83.] After receiving several extensions of time, Respondent filed a combined Answer to and Motion to Dismiss the First Amended Petition on January 26, 2015. [Dkt. 92.] Petitioner thereafter, requested, and was granted, 14 extensions of time to file a combined Traverse and Opposition, which Petitioner did on November 7, 2016. [Dkt. 126.][2] On March 8, 2017, Respondent filed a combined Reply to the Traverse and “objection” to the Amendment Motion. [Dkt. 132.][3]
On November 17, 2020, the Court issued its Report and Recommendation in this action [Dkt. 140, “Original Report”]. After resolving certain procedural issues in Petitioner's favor, the Original Report addressed Petitioner's claims on their merits and recommended that habeas relief be denied. After requesting, and receiving, three extensions of time to file objections to the Original Report, Petitioner filed his Objections on May 6, 2021 [Dkt. 149]. Respondent did not file Objections or a Reply to Petitioner's Objections. In his Objections, Petitioner objects to the Court's substantive, merits analysis in a number of respects and also raises certain objections as to procedural matters. The Court now issues this Final Report and Recommendation to address some of those procedural objections, to clarify some of the Original Report's statements, which Petitioner appears to have misunderstood, and to correct any typographical or citation errors. The Court leaves Petitioner's objections regarding the substance of the Court's merits analysis to the United States District Judge for de novo review. The additional comments and matters included within this Final Report and Recommendation do not affect or alter the Court's Original Report analysis and conclusions with respect to the merits of
Petitioner's habeas claims - the actual substance of the Court's recommendations - and, therefore, the parties have not been given an opportunity to file additional objections.
The matter is submitted and ready for decision. For the reasons set forth below, the Court GRANTS the Amendment Motion and recommends that the District Judge deny the First Amended Petition on its merits.
On January 5, 2009, in the State Conviction proceedings Petitioner was charged with possession of a firearm by a felon in violation of California Penal Code § 12021(a)(1). (Lodg. Ex. B.) On June 19, 2009, trial commenced with jury selection and then proceeded over the next several days. [CT 98-105, 121-22, 127-28.] On June 24, 2009, shortly after commencing deliberations, the jury submitted a note indicating that the jurors were “unable to decide” and “it appears there is no hope of reaching a unanimous verdict.” [CT 120.] The jurors asked to review evidence and testimony again, as well as to review items that had not been admitted into evidence. [CT 119, 123-26, 130.] On June 26, 2009, the jury advised that it was “still unable to reach a verdict.” [CT 129.] After polling the jury, the trial court declared a mistrial. [CT 132; RT1 245-52.]
Prior to the institution of the State Conviction proceedings, a separate case - No. BA326153 - had been initiated in the Los Angeles Superior Court, in which Petitioner pled no contest to one of the charged counts and received probation and a 165-day jail sentence, with credits in the same amount (“Case BA326153”). [Lodg. Ex. A at 3-15.] As discussed infra, many of the proceedings in the State Conviction case and Case BA326153 occurred concurrently. After the State Conviction jury trial ended in a mistrial on June 26, 2009, Case BA326153 was set for a probation violation hearing before the same trial judge. She found that Petitioner was not in violation of probation, although his probation remained revoked, and did not decide the question of whether Petitioner could be held in violation of probation following the retrial in the State Conviction case. [Lodg. Ex. A at 16-17.]
On August 21, 2009, a second jury trial commenced in the State Conviction case and continued for several days. [CT 138-42.] The jury retired to deliberate for one hour on August 25, 2009, and resumed at 9:35 a.m. the next day, August 26, 2009. That afternoon, following the lunch break, the jury continued to deliberate and reached a verdict of guilty at 3:21 p.m. [CT 167-68.] Petitioner was sentenced immediately thereafter to probation for three years with 365 days in county jail and credit for 392 days served. [CT 168-70.]
Petitioner appealed the State Conviction. He argued that his retrial has been barred by state law collateral estoppel principles due to the trial court's ruling failing to revoke probation in Case BA326153, and asserted that this collateral estoppel claim was not forfeited by trial counsel's failure to raise a double jeopardy objection, because the failure to object was ineffective assistance. He also asked the state appellate court to...
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