Quintero v. Tilton
| Decision Date | 26 November 2008 |
| Docket Number | No. CV 06-7985-CAS(RC).,CV 06-7985-CAS(RC). |
| Citation | 588 F.Supp.2d 1121 |
| Parties | Vanessa Maria QUINTERO, Petitioner, v. James E. TILTON, Secretary, California Department of Corrections and Rehabilitation; Debra Jacquez, Warden, Central California Women's Facility, State of California Department of Corrections, Respondents. |
| Court | U.S. District Court — Central District of California |
Jeffrey A. Needelman, Jeffrey A. Needelman Law Offices, San Francisco, CA, for Petitioner.
James W. Bilderback, II, Lance E. Winters, CAAG-Office of Attorney General of California, Los Angeles, CA, for Respondents.
Pursuant to the Order of the Court adopting the findings, conclusions, and recommendations of United States Magistrate Judge Rosalyn M. Chapman,
IT IS ADJUDGED that the petition for writ of habeas corpus is denied and the action is dismissed with prejudice.
Pursuant to 28 U.S.C. Section 636, the Court has reviewed the Petition and other papers along with the attached Report and Recommendation of United States Magistrate Judge Rosalyn M. Chapman, as well as petitioner's objections, and has made a de novo determination.
IT IS ORDERED that (1) the Report and Recommendation is approved and adopted; (2) the Report and Recommendation is adopted as the findings of fact and conclusions of law herein; and (3) Judgment shall be entered denying the petition for writ of habeas corpus and dismissing the action with prejudice.
IT IS FURTHER ORDERED that the Clerk shall serve petitioner by United States Mail with copies of this Order, the Judgment and the Magistrate Judge's Report and Recommendation.
This Report and Recommendation is submitted to the Honorable Christina A. Snyder, United States District Judge, by Magistrate Judge Rosalyn M. Chapman, pursuant to the provisions of 28 U.S.C. § 636 and General Order 05-07 of the United States District Court for the Central District of California.
On June 20, 2003, in Los Angeles County Superior Court case no. VA073626, a jury convicted petitioner Vanessa Maria Quintero of second degree robbery in violation of California Penal Code ("P.C.") § 211, and the jury also found petitioner personally used a firearm (handgun) in the commission of the robbery within the meaning of P.C. § 12022.53(b). Clerk's Transcript ("CT") 89-91. On August 11, 2003, the trial court sentenced petitioner to 13 years in state prison.1 CT 93-95.
The petitioner appealed her conviction and sentence to the California Court of Appeal, CT 96, which affirmed the judgment in an unpublished opinion filed April 21, 2005. Lodgment nos. 10-12. On May 18, 2005, petitioner, proceeding through counsel, filed a petition for review in the California Supreme Court, which denied the petition on July 20, 2005. Lodgment nos. 17-18. On October 16, 2005, petitioner filed a petition for writ of certiorari in the United States Supreme Court, which denied the petition on December 12, 2005. Lodgment no. 19; Quintero v. California, 546 U.S. 1078, 126 S.Ct. 834, 163 L.Ed.2d 711 (2005).
The California Court of Appeal, in affirming petitioner's conviction, made the following factual findings underlying the offense and trial:2 At about 10:15 p.m. on October 24, 2002, Lenia Solorzano (Solorzano) was walking home from work on Ludell Street in Bell Gardens. Two women were walking toward her on the sidewalk. The one in front was heavyset and was pushing a stroller. Petitioner, who was thinner, was walking behind the woman pushing the stroller.
Petitioner walked up to Solorzano and demanded her purse. When Solorzano did not give it to her, petitioner pointed a gun at Solorzano and again demanded her purse. Afraid, Solorzano gave the purse to her. Petitioner and the other woman then left. Solorzano went home, telephoned the police, told them what had happened and described petitioner.
On the following day, Bell Gardens Police Officer Eduardo Vasquez heard a description of the robbery suspect and believed it fit petitioner. He and Officer So went to petitioner's home and received permission to search it from petitioner's mother. In a cupboard under the oven, Officer So found Solorzano's cellular telephone. Officer Vasquez got Solorzano and took her to petitioner's home. Solorzano identified petitioner as the woman who robbed her. Petitioner was placed under arrest.
On May 6, 2003, Solorzano attended a lineup at the county jail. At that time, she again identified petitioner as the robber.
Defense:
Several hours before the robbery, Bell Gardens Police Officer Marc Cobian saw petitioner pushing a stroller down the street. A heavier woman was with her. Bell Gardens Police Detective Brendan Kirkpatrick obtained information for the prosecution in this case. Although he knew petitioner had been with another woman at the time of the robbery, he made no attempt to locate the other woman.
Dr. Edward Geiselman is an expert in human memory. He testified that during an emotionally-charged situation, a witness's memory can be affected. Where the witness is the victim of a crime in which a weapon is used, the victim tends to focus on the weapon, rather than the perpetrator's face, and is less likely to make an accurate identification of the perpetrator. Where there is more than one perpetrator, the victim's ability to identify a perpetrator decreases.
Dr. Geiselman additionally testified that a one-person show-up increases the probability that the victim will make an identification, correct or incorrect. Once the victim has made the identification, he or she is more likely to identify the same person in a subsequent lineup and at trial.
On December 15, 2006, petitioner filed her habeas corpus petition under 28 U.S.C. § 2254 and a supporting memorandum of points and authorities, and on February 9, 2007, respondent filed an answer to the petition. On April 12, 2007, petitioner filed her traverse.
On August 14, 2008, the Court issued sua sponte an Order to Show Cause why this action should not be dismissed as untimely, pursuant to Day v. McDonough, 547 U.S. 198, 209-10, 126 S.Ct. 1675, 1684, 164 L.Ed.2d 376 (2006), and in response thereto petitioner filed an opposing memorandum of points and authorities and the declaration of Mr. Needelman, with exhibits. On September 18, 2008, respondent filed an opposition to petitioner's response to the Order to Show Cause, and on September 30, 2008, petitioner filed her reply.
The pending habeas corpus petition raises the following claims:
Ground One—"The decision of the California Court of Appeal that Petitioner's trial counsel did not adequately preserve her peremptory challenge to a retired security guard juror (hereafter `Juror No. 6') on the record was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding" (Petition at 4);
Ground Two—"If the record on appeal was insufficient to show that her trial counsel made a peremptory challenge, the California courts' refusal to engross a settled statement of a discussion between the trial court and the parties in the courthouse hallway, during which her trial counsel made the peremptory challenge, was contrary to clearly established federal law entitling Petitioner to meaningful appellate review when state law provides a right to appeal" (Petition at 4-5); and
Ground Three— (citations omitted). Petition at 5.
The Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA") "established a one-year period of limitations for federal habeas petitions filed by state prisoners," Bryant v. Arizona Attorney Gen., 499 F.3d 1056, 1059 (9th Cir.2007), as follows:
(1) A 1-year period of limitation shall apply to an application for a writ of habeas corpus by a person in custody pursuant to the judgment of a State court. The limitation period shall run from the latest of—
(A) the date on which the judgment became final by the conclusion of direct review or the expiration of the time for seeking such review....
A state court criminal judgment becomes final when the Supreme Court "affirms a conviction on the merits on direct review or denies a petition for a writ of certiorari, or when the time for filing a certiorari petition expires." Clay v. United States, 537 U.S. 522, 527, 123 S.Ct. 1072, 1076, 155 L.Ed.2d 88 (2003); see also Wixom v. Washington, 264 F.3d 894, 897 (9th Cir.2001) (), cert. denied, 534 U.S. 1143, 122 S.Ct. 1097, 151 L.Ed.2d 994 (2002); Trapp v. Spencer, 479 F.3d 53, 58 (1st Cir.2007) ().
The Supreme Court denied petitioner's application for a writ of certiorari on December 12, 2005, and that is the date on which petitioner's conviction became final. The AEDPA's statute of limitations began to run the next day, on December 13, 2005, and expired one year later on ...
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