Ramirez v. Almager

Decision Date18 November 2008
Docket NumberNo. CV 08-896-ABC(E).,CV 08-896-ABC(E).
Citation619 F.Supp.2d 881
PartiesGregory Javier RAMIREZ, Petitioner, v. V.M. ALMAGER, Warden, Respondent.
CourtU.S. District Court — Central District of California

Gregory Javier Ramirez, Susanville, CA, pro se.

Joseph P. Lee, CAAG — Office of Attorney General of California, Los Angeles, CA, for Respondent.


AUDREY B. COLLINS, District Judge.

Pursuant to 28 U.S.C. section 636, the Court has reviewed the Petition, all of the records herein and the attached Report and Recommendation of United States Magistrate Judge. The Court approves and adopts the Magistrate Judge's Report and Recommendation.

IT IS ORDERED that Judgment be entered denying and dismissing the Petition with prejudice.

IT IS FURTHER ORDERED that the Clerk serve copies of this Order, the Magistrate Judge's Report and Recommendation and the Judgment herein by United States mail on Petitioner and counsel for Respondent.


Pursuant to the Order Adopting Findings, Conclusions and Recommendations of United States Magistrate Judge.

IT IS ADJUDGED that the Petition is denied and dismissed with prejudice.


CHARLES F. EICK, United States Magistrate Judge.

This Report and Recommendation is submitted to the Honorable Audrey B. Collins, 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.


Petitioner filed a "Petition for Writ of Habeas Corpus By a Person in State Custody" on February 8, 2008, accompanied by an attached Memorandum ("Pet. Mem."). Respondent filed an Answer on August 8, 2008. On August 27, 2008, Petitioner filed a Traverse and "Petitioner's Request to Conduct Discovery."


On December 12, 2003, Petitioner drove Jose Chavez to an intersection where Chavez exited Petitioner's car and fired shots at the driver of another car, Orlando Ortiz, and Ortiz' passenger, Refugio Perez. Ortiz was wounded but survived. Perez returned fire and shot Chavez dead.

A jury found Petitioner guilty of conspiracy to commit murder in violation of California Penal Code section 182(a)(1) and the willful, deliberate and premeditated attempted murder of Orlando Ortiz in violation of California Penal Code sections 187(a) and 664 (Reporter's Transcript ["R.T."] 3009-10); (Clerk's Transcript ["C.T."] 165-66). The jury found true the allegations that a principal personally and intentionally had discharged a firearm in the commission of the attempted murder of Ortiz within the meaning of California Penal Code section 12022.53(c) and 12022.53(e)(1) (R.T. 3010; C.T. 166), and that a principal personally and intentionally had discharged a firearm causing great bodily injury to Orlando Ortiz within the meaning of California Penal Code sections 12022.53(d) and 12022.53(e)(1) (R.T. 3010; C.T. 166). The jury found Petitioner not guilty of the attempted murder of Refugio Perez (C.T.167). The jury found not true the allegations that the offenses were committed for the benefit of, at the direction of, and in association with a criminal street gang within the meaning of California Penal Code section 186.22(b)(1) (R.T. 3010; C.T. 165-66). Petitioner received a sentence of twenty-five years to life (R.T. 3032; C.T. 178-81).

The Court of Appeal affirmed the judgment (Respondent's Lodgment D); see also People v. Ramirez, 2005 WL 2365217 (Cal.Ct.App. Sept.27, 2005). The California Supreme Court denied Petitioner's petition for review summarily (Respondent's Lodgments E, F).

Petitioner filed a habeas corpus petition in the California Supreme Court, which that court denied on December 21, 2005 with citations (Respondent's Lodgments G, H). Petitioner then filed a habeas corpus petition in this Court, Ramirez v. Evans, CV 07-576-ABC (E), which the Court denied and dismissed without prejudice for failure to exhaust available state remedies. Petitioner filed another habeas corpus petition in the California Supreme Court on July 11, 2007, which that court denied on January 16, 2008 with citations (Respondent's Lodgments I, J).


The following factual summary is taken from the opinion of the California Court of Appeal in People v. Ramirez, 2005 WL 2365217 (Cal.Ct.App. Sept.27, 2005). See Galvan v. Alaska Dep't of Corrections, 397 F.3d 1198, 1199 & n. 1 (9th Cir.2005) (taking factual summary from state appellate decision).

1. Prosecution Evidence
A. Background

Orlando [Ortiz] was the prosecution's chief witness. He had been appellant's friend for years, and did not want to testify against him. He lived with his mother, girlfriend and four-year-old son in the neighborhood of the Watts Varrio Grape street gang. He testified that his friends and older brothers were in the gang, but he did not belong to it himself. His brother "Crow" had been killed. His brothers "Lefty" and "Canejo" (sometimes called "Cujo") were incarcerated. Orlando, Canejo, and appellant used to "hang out" at a house on Holmes Avenue. Three of Orlando's friends who used to join them there, "Spanky," "Sneaky," and Eloy Sanchez (Eloy), were killed shortly before Orlando was shot.

Chavez, who was sometimes called "Payaso," also belonged to the gang, but was not Orlando's friend. He hung out and sold drugs at another location, Grape Street. Appellant, who was sometimes called "Bandit," frequented the Grape Street location as well as the Holmes Street location. Orlando testified that he did not know if appellant belonged to the gang. However, appellant admitted to the police that he was a member of the Watts Varrio Grape street gang, and the prosecution's gang expert testified that both Orlando and appellant belonged to the gang.

Before and after Chavez shot Orlando, Orlando made statements to the police which incriminated both Chavez and appellant. At the trial, Orlando testified that Chavez was guilty, appellant was innocent, the police were lying or confused, and he did not recall what he told them about appellant. He also said he did not want to testify because it was Chavez who shot him, and Chavez was dead. He denied that he feared being labeled a "snitch." He attributed his memory problems to stress medication, surgery, and his injuries.

In addition to Orlando's statements to the police and testimony at trial, the prosecution's case included a confession from appellant and other evidence.

B. Events Prior to the Shooting of Orlando

Sometime in May 2003, Chavez came to Orlando's house, looking for Orlando's brother Canejo. Chavez had a handgun under his shirt. He told Orlando he had just used the gun to shoot two men in a drive-by shooting. He asked Orlando to hide the gun. Orlando refused. Chavez left. They stopped speaking.

In October 2003, appellant told Orlando that Chavez had asked him to pick up Orlando and drive Orlando to a place where Chavez would kill him. Orlando went to Chavez and asked him if he wanted to kill him. Chavez denied it. Appellant later told Orlando that he should not have confronted Chavez, as Chavez would know that appellant warned Orlando about Chavez's intention.

Fearing for his life, Orlando told Detective Pantoja in October 2003 about Chavez's participation in the drive-by shooting and request that he hide the gun. Orlando stopped talking to appellant, and briefly lived somewhere else.

On December 11, 2003, while Orlando was at home with his mother and son, a man came into his yard and cocked a large weapon. Orlando closed the door and dialed 911. He also called his best friend, Eloy, to tell him what had happened.

Orlando also testified that at some other point, while he was in appellant's car, he asked appellant for the identity of the person who came to his house with a gun. Appellant became agitated, and Orlando left the car. At the trial, he said the conversation in the car occurred, but the police were confused about when it occurred.

On December 12, 2003, Orlando was at the Holmes Street house with Eloy, Refugio (also called "Mono"), Chavez, and another man, "Boxer." They were gathered there because it was "the day of Sneaky's wake." Appellant was not present. Chavez pulled out a gun, shot at Orlando, and missed. Other people began shooting. As Orlando ran away, Eloy tried to take the gun from Chavez. Chavez killed him.

About an hour later, Orlando received two telephone calls at his home. The first caller was appellant, asking what happened on Holmes Street. The second caller said to Orlando, "You're next." Orlando understood that the caller meant he would be the next person killed, as he was the only one of his friends who was still alive.

At the trial, Orlando testified that he was not sure if the second call came from appellant or from somebody else, such as Chavez. Fearing for his life, he went to the police station and talked to detectives, later on the night of December 12. In a secretly taped interview, he told them that it was appellant who made the "You're next" telephone call, after Eloy was killed.1 He gave the police many other details about his problems with Chavez and appellant. He said appellant had told him he was the driver of the car when Chavez committed the drive-by shooting. Chavez was angry because Orlando refused to hide the gun, and appellant was upset that Orlando talked to Chavez about Chavez's wanting to kill him. A person who looked exactly like appellant had come to his door on December 11 and cocked an "AK 47."2 When he asked appellant inside appellant's car who the person was who came to his house with a gun, appellant tossed a gun into a secret compartment in the car.

Orlando did not tell the police at that time that he was with Eloy...

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