Razo v. Thomas
| Decision Date | 18 May 2010 |
| Docket Number | No. CV 09-00462 SOM-KSC.,CV 09-00462 SOM-KSC. |
| Citation | 700 F.Supp.2d 1252 |
| Parties | Vince William RAZO, # A4015368, Plaintiff,v.T. THOMAS, Defendant. |
| Court | U.S. District Court — District of Hawaii |
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Vince William Razo, Eloy, AZ, pro se.
Richard K. Minatoya, Office of the Prosecuting Attorney, Wailuku, HI, for Defendant.
Findings and Recommendation having been filed and served on all parties on February 10, 2010, and no objections having been filed by any party,
IT IS HEREBY ORDERED AND ADJUDGED that, pursuant to Title 28, United States Code, Section 636(b)(1)(C) and Local Rule 74.2, the Findings and Recommendation are adopted as the opinion and order of this Court.
Because petitioner has not made a substantial showing of the denial of a constitutional right, a certificate of appealability is DENIED. See 28 U.S.C. § 2253(c)(2).
APPROVED AND SO ORDERED.
KEVIN S.C. CHANG, United States Magistrate Judge.
Before the court is pro se Petitioner Vince William Razo's petition for writ of habeas corpus (Petition) brought under to 28 U.S.C. § 2254, and referred to this court pursuant to 28 U.S.C. § 636(b). For the following reasons, the court FINDS that the Petition is without merit and RECOMMENDS that it be DENIED with prejudice.
On March 23, 2004, a jury of the Circuit Court of the Second Circuit, State of Hawaii (circuit court), found Razo guilty of Promoting a Dangerous Drug in the Second Degree (PDD2)(possession of at least 1/8 ounce of methamphetamine) (Count 1); 1 Prohibited Acts Related to Drug Paraphernalia (Count 2); 2 Promoting a Detrimental Drug in the Third Degree (PDD3) (possession of marijuana) (Count 3); 3 and Attempted Promoting a Dangerous Drug in the First Degree (Attempted PDD1) (Count 4).4 On May 24, 2004, the circuit court issued an amended final judgment of conviction and sentence, merging Count 1 with Count 4, and sentencing Razo to twenty years imprisonment on Count 4, five years imprisonment on Count 2, and thirty days imprisonment on Count 3, to run concurrently. (Resp.'s Ex. R.)
Razo appealed, claiming that jury instructions # 19 and # 26, defining PDD2 and Attempted PDD1, were erroneous and that there was insufficient evidence to sustain his Attempted PDD1 conviction. Razo did not challenge the convictions or sentences imposed on Counts 2 and 3.
On September 8, 2006, the Hawaii Intermediate Court of Appeals (ICA) affirmed Razo's conviction. The ICA held that: (1) in light of Razo's and other testimony and evidence adduced at trial, the evidence was sufficient to support the Attempted PDD1 conviction; (2) the Attempted PDD1 jury instruction # 26, although not endorsed by the ICA, was nonetheless sufficient and any error was harmless beyond a reasonable doubt; and (3) although the PDD2 jury instruction # 19 was erroneous, the error was harmless beyond a reasonable doubt because (a) Razo testified that the substance found in his backpack was more than 1/8 of an ounce of methamphetamine; and (b) the PDD2 charge was merged with the Attempted PDD1 charge, which the court had affirmed, rendering the PDD2 jury instruction challenge moot. The Hawaii Supreme Court denied certiorari on January 29, 2007.
On March 30, 2007, Razo, proceeding pro se, filed a petition for post-conviction relief, pursuant to Hawaii Rules of Penal Procedure (HRPP) Rule 40. Razo claimed ineffective assistance of counsel (IAC) for his appellate counsel's failure to raise federal constitutional issues on appeal, thereby allegedly prejudicing Razo's ability to challenge his conviction in federal court.5 Razo later added seven supplemental Addendum issues, unconnected to his IAC claim.6
The circuit court denied the Rule 40 Petition, holding first that Razo's appellate counsel was not ineffective under Hawaii's standard for evaluating IAC claims.7 Specifically, appellate counsel was not ineffective for failure to raise: (1) a Miranda claim, because the trial court conducted an extensive pre-trial voluntariness hearing and determined that Razo's statements were knowing and voluntary; (2) an insufficiency of the evidence claim under the Eighth Amendment, because this claim was patently frivolous; and (3) federal due process claims concerning jury instructions # 19 and # 26, because these claims were without merit under the prevailing federal standard and were raised and rejected on direct appeal, procedurally barring further review under HRPP 40(a)(3) and (g)(2).8 The circuit court then held that Razo's seven Addendum issues were each waived under HRPP 40(a)(3) for failure to raise them on direct appeal, and thus, were procedurally barred. The circuit court additionally found that Addendum issues 1 and 6 were raised and ruled upon prior to trial, 2, 4, and 5 were patently frivolous, and 3 and 7 were meritless.
Razo appealed, raising six points of error: (1) ineffective assistance of appellate counsel for failure to argue federal constitutional issues, denying him due process under the Fourteenth Amendment; (2) Speedy trial violation under HRPP 48, in violation of the Sixth Amendment and the due process clause of the Fourteenth Amendment; (3) insufficient evidence to convict for Attempted PDD1; (4) statute of limitation violation; (5) inaccurate measurement of the evidence; and (6) improper identification of the evidence.
On January 23, 2009, 119 Hawai‘i 467, 2009 WL 154480, the ICA affirmed, holding that each of Razo's points on appeal were procedurally defaulted and therefore barred from review. Specifically, the ICA held: (1) Razo's failure to support his IAC and statute of limitation claims with supporting facts or argument waived them under Hawaii Rules of Appellate Procedure (HRAP) 28(b)(7); 9 (2) Razo's failure to raise his speedy trial claim on direct appeal, and establish extraordinary circumstances for this, waived the claim under HRPP 40(a)(3), and Razo failed to establish circuit court error in denying the pre-trial motion to dismiss on this issue; (3) Razo's insufficient evidence claim was raised and rejected on direct appeal and further relief was unavailable under HRPP 40(a)(3); and (4) Razo's failure to raise his improper admission of the police expert's testimony regarding the weight and composition of the drug evidence claim on direct appeal, and to establish extraordinary circumstances for this, waived the claim under HRPP 40(a)(3), and Razo admitted to possessing 1/8 of an ounce of methamphetamine, thus any error regarding admission of this testimony was harmless beyond a reasonable doubt. The Hawaii Supreme Court denied certiorari on February 23, 2009.
This Petition is governed by the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA), 28 U.S.C. § 2254. Woodford v. Garceau, 538 U.S. 202, 204, 123 S.Ct. 1398, 155 L.Ed.2d 363 (2003); Brown v. Farwell, 525 F.3d 787, 792 (9th Cir.2008). Under the AEDPA, habeas corpus relief may not be granted on any claim that was adjudicated on the merits in state court unless the adjudication “resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established federal law as determined by the Supreme Court of the United States,” or “resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding.” 28 U.S.C. § 2254(d)(1),(2); Williams v. Taylor, 529 U.S. 362, 402-04, 120 S.Ct. 1495, 146 L.Ed.2d 389 (2000).
A decision is contrary to federal law if the state court applies a rule of law that contradicts Supreme Court precedent or makes a determination contrary to a Supreme Court decision on materially indistinguishable facts. Brown, 525 F.3d at 792. A state court unreasonably applies federal law when its application of Supreme Court precedent to the facts of petitioner's case is objectively unreasonable. Id. at 793 (citation omitted). “Factual determinations by state courts are presumed correct absent clear and convincing evidence to the contrary.” Cooper v. Brown, 510 F.3d 870, 919 (9th Cir.2007) ( quoting Miller-El v. Cockrell, 537 U.S. 322, 340, 123 S.Ct. 1029, 154 L.Ed.2d 931 (2003); 28 U.S.C. § 2254(e)(1)).
Relief may be granted on a federal habeas petition only if the state court error caused “actual prejudice” or had a “substantial and injurious effect or influence” in determining the jury's verdict. Brecht v. Abrahamson, 507 U.S. 619, 637, 113 S.Ct. 1710, 123 L.Ed.2d 353 (1993). In other words, relief may not be granted if a petitioner merely shows that there is a reasonable possibility that the error contributed to the verdict. Id.
The Petition raises four somewhat cryptic grounds for relief: (1) appellate counsel was ineffective for failing to raise (unspecified) federal issues on direct appeal, hindering Razo's ability to pursue federal habeas relief (Ground One); (2) a speedy trial violation under HRPP 48, for the alleged failure to commence trial within “the 180 days allowed by law” (Ground Two); (3) “Evidence which led to conviction” (Ground Three); and (4) “Attempt to Distribute” (Ground Four).
A petition for writ of habeas corpus may not be granted unless the petitioner has exhausted available state court remedies. 28 U.S.C. § 2254(b); Baldwin v. Reese, 541 U.S. 27, 124 S.Ct. 1347, 158 L.Ed.2d 64 (2004); Coleman v. Thompson, 501 U.S. 722, 731, 111 S.Ct. 2546, 115 L.Ed.2d 640 (1991). A claim is exhausted when: (1) no remedy remains available to the petitioner in state court; or (2) there is an absence of available state corrective process or circumstances exist that render...
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