Parra v. Martel

• Decision Date: 28 January 2015
• Docket Number: NO. CV 14-7136-FMO(E),CV 14-7136-FMO(E)
• Court: U.S. District Court — Central District of California
• Parties: ENRIQUE PARRA, Petitioner, v. M.F. MARTEL, Warden, Respondent.

ENRIQUE PARRA, Petitioner, v. M.F. MARTEL, Warden, Respondent.

NO. CV 14-7136-FMO(E)

UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA

January 28, 2015

REPORT AND RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE

This Report and Recommendation is submitted to the Honorable Fernando M. Olguin, United States District Judge, pursuant to 28 U.S.C. section 636 and General Order 05-07 of the United States District Court for the Central District of California.

PROCEEDINGS

Petitioner filed a "Petition for Writ of Habeas Corpus By a Person in State Custody" on September 12, 2014, accompanied by an attached Memorandum ("Pet. Mem."). The Petition asserts three claims for relief: two claims challenging the sufficiency of the evidence tosupport Petitioner's two attempted murder convictions and a claim challenging the joinder of the two attempted murder counts.

On October 31, 2014, the Court received from Petitioner a "Motion to Stay and Abeyance," seeking an order staying the Petition pending exhaustion of two new claims for relief: (1) a claim alleging that Petitioner's trial counsel rendered ineffective assistance of counsel by failing to move to sever the two attempted murder counts; and (2) a claim alleging that Petitioner's appellate counsel rendered ineffective assistance by failing to raise on appeal trial counsel's alleged ineffectiveness in failing to move to sever. On November 3, 2014, the Court rejected this document for filing on the ground that the proof of service did not reflect service on Respondent.

Respondent filed an Answer on November 4, 2014, alleging inter alia that Ground Three of the Petition was unexhausted, but also contending that the Court should deny all of the claims in the Petition on the merits.

On November 24, 2014, Petitioner filed a "Notification to Notice of Discrepancies, etc." ("Notification") appearing to seek, inter alia, a stay of the Petition pending the disposition of Petitioner's then-pending California Supreme Court habeas corpus petition. On December 1, 2014, the Court issued a Minute Order ordering Respondent to file a response to the Notification and ordering Petitioner to file a copy of his pending California Supreme Court petition.

On December 19, 2014, Respondent filed an "Opposition to Petitioner's Motion for Stay and Abeyance, etc." and also lodged a copy of Petitioner's then-pending California Supreme Court habeas corpus petition in In re Parra, Case Number S222317. On December 26, 2014, Petitioner filed a copy of his California Supreme Court habeas corpus petition.

Petitioner filed a Traverse on January 16, 2015. On January 20, 2015, Petitioner filed a document titled "Permission to File Declaration of Enrique Parra in Support to Petitioner [sic] Habeas Corpus," to which is attached a declaration of Petitioner supporting his claims of alleged ineffective assistance of counsel.¹

BACKGROUND

A jury found Petitioner guilty of two counts of wilful, deliberate and premeditated attempted murder of Patrick Hunt in violation of California Penal Code sections 187(a) and 664 (Reporter's Transcript ["R.T." 1210-12; Clerk's Transcript ["C.T."] 198-99, 205-06). The jury found true the allegations that, with respect to both counts: (1) Petitioner personally and intentionally discharged a firearm which caused great bodily injury to Hunt within the meaning of California Penal Code section 12022.53(d); and Petitioner personally used a firearm and knowingly and intentionally discharged a firearm within the meaning of California Penal Code sections 12022.53(b) and(c) (R.T. 1210-12; C.T. 198-99, 205-06). The court found true the allegations that Petitioner was on bail at the time of the offenses within the meaning of California Penal Code section 12022.1 and that Petitioner had suffered two prior convictions for which Petitioner served prison terms within the meaning of California Penal Code section 667.5(b) (R.T. 1505; C.T. 108-09, 259). Petitioner received a total sentence of sixty-six years to life (R.T. 1512-15; C.T. 259).

The California Court of Appeal affirmed the judgment (Respondent's Lodgment 4; see People v. Parra, 2013 WL 1808364 (Cal. App. Apr. 30, 2013)). The California Supreme Court denied Petitioner's petition for review summarily (Respondent's Lodgment 6). As indicated above, Petitioner filed a habeas corpus petition in the California Supreme Court, in In re Parra, Case Number S222317 (see Respondent's Lodgment 10; Petitioner's "Compliance, etc.," Ex. A). The California Supreme Court denied Petitioner's habeas corpus petition summarily on January 14, 2015.²

SUMMARY OF TRIAL EVIDENCE

The following summary is taken from the opinion of the California Court of Appeal in People v. Parra, 2013 WL 1808364 (Cal. App. Apr. 30, 2013). See Slovik v. Yates, 556 F.3d 747, 749 n.1 (9th Cir.2009) (taking factual summary from state appellate decision).

May 25, 2010, Shooting

(Count 1)

In the afternoon of May 25, 2010, Parra, Albert Lopez, and Patrick Hunt socialized in the garage of Lopez's Pomona residence, "drinking a couple of beers, listening to music." Hunt, a childhood friend and neighbor of Lopez, considered Lopez and his mother, Vandie Parke, as his second family. Parra was Parke's longtime boyfriend. The three men were friendly and did not know each other to carry firearms.

That day the men made several trips to the liquor store to purchase beer. During the final trip, Lopez noticed a "little bit of tension." The journey was "quiet and awkward," and Parra drove the vehicle quickly over "speed bumps."

After their return to the Lopez residence, the men resumed drinking beer and listening to music. Lopez sat in a chair facing the garage door and the street; Hunt stood or sat behind Lopez on the right side, and Parra was on Lopez's left side. Parra spoke with Lopez regarding the music and Hunt read a text message on his cellular telephone. As Parra turned to walk into the residence, he suddenly shot Hunt in the neck from a distance of approximately six to eight feet. Lopez heard the gunshot and turned to ask whathappened. Hunt replied that Parra shot him.

When Parke heard the gunshot, she hurried to the garage and found the three men staring at each other. She asked, "What the fuck is going on in here?" Hunt responded that Parra shot him. Parra then "took off down the street." Parke summoned police officers and paramedics.

Hunt received emergency medical care at the hospital, including surgery on his neck and esophagus, and remained hospitalized for a week and one-half. The hospital surgeon was unable to remove the bullet from his neck, however. As a consequence of the shooting, Hunt is unable to eat food normally and will require lifelong medical monitoring of his injury.

February 10, 2011, Shooting

Count 2

Over the next eight months, Parra telephoned Parke several times but they did not meet. On February 10, 2011, he telephoned her and asked to meet before he surrendered to police officers. She reluctantly agreed and he drove to her residence that afternoon. Parke and Parra then drove Parke's vehicle to collect her children from school and later to a liquor store. At the liquor store, Parra saw Hunt and his friend Ricky near the store. Parra left the vehicle and he and Hunt looked at each other. Hunt stated,"[Y]ou shot me in my neck." Parra replied, "[W]hat you gonna do about it?" Parra then pulled a firearm and began to chase Hunt and Ricky. Parra fired the weapon five times, striking Hunt twice — in the right side of his back and in his right forearm. Another bullet passed by Hunt's head before it shattered the liquor store window. Parra then returned to Parke's vehicle and drove away.

During the incident, Parke left the vehicle and ran away. Upon hearing gunshots, she turned and saw Parra holding an object with his arm extended and Hunt running away from him.

Later that day, police officers saw Parke's truck and then found Parra hiding in a backyard. With the assistance of a police canine, officers arrested him.

Hunt was again hospitalized for treatment of two bullet wounds that left permanent scars on his chest and arm.

At trial, Parra's sister testified that Hunt had informed her that he was a member of a criminal street gang. Parra also presented an eyewitness who testified that she saw four young men arguing outside the liquor store and that two of them had guns.

(Respondent's Lodgment 4, pp. 2-3; see People v. Parra, 2013 WL 1808364, at *1-2 (Cal. App. Apr. 30, 2013)).

PARTIES' CONTENTIONS

Petitioner contends:

1. The evidence allegedly was insufficient to show intent to kill with respect to Count 1;

2. The evidence allegedly was insufficient to show Petitioner acted with premeditation and deliberation with respect to both Counts 1 and 2; and

3. Because the evidence of the attempted murder alleged in Count 1 assertedly was inadmissible to show Petitioner committed the attempted murder alleged in Count 2, the joinder of the two counts allegedly rendered Petitioner's trial unfair; and

4. Trial counsel and appellate counsel assertedly rendered ineffective assistance by failing to challenge the joinder of the counts.³

Respondent's Answer contends that Ground Three (the claim alleging improper joinder) is unexhausted. Petitioner seeks a stay to exhaust his claims of allegedly improper joinder and ineffective assistance of counsel. However, Petitioner already raised hisunexhausted clams in his California Supreme Court habeas petition (see "Petitioner's "Compliance, etc.," Ex. A, pp. 10-18).⁴ Therefore, the California Supreme Court's recent denial of Petitioner's habeas petition⁵ exhausts Petitioner's previously unexhausted claims and moots Petitioner's request for a stay. See Zamudio v. McEwen, 2013 WL 1147813, at *2 (S.D. Cal. Mar. 18, 2013) (denying habeas petitioner's motion for a stay as moot because California Supreme Court denied habeas petition pending at time petitioner requested stay). For the reasons discussed below, the Court denies all of Petitioner's claims on the merits....