Romero v. Kernan

• Decision Date: 30 May 2018
• Docket Number: Case No.: 14cv1284-GPC(BLM)
• Court: U.S. District Court — Southern District of California
• Parties: WILLIAM VINCENT ROMERO, Petitioner, v. SCOTT KERNAN, Secretary of the California Department of Corrections and Rehabilitation, et al., Respondent.

WILLIAM VINCENT ROMERO, Petitioner, v. SCOTT KERNAN, Secretary of the California Department of Correctionsand Rehabilitation, et al., Respondent.

Case No.: 14cv1284-GPC(BLM)

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF CALIFORNIA

May 30, 2018

REPORT AND RECOMMENDATION FOR ORDER DENYING PETITION FOR WRIT OF HABEAS CORPUS

[ECF No. 65]

This Report and Recommendation is submitted to United States District Court Judge Gonzalo P. Curiel pursuant to 28 U.S.C. § 636(b) and Civil Local Rules 72.1(d) and HC.2 of the United States District Court for the Southern District of California. On May 20, 2014, Petitioner William Vincent Romero, a state prisoner who is proceeding pro se and in forma pauperis, commenced these habeas corpus proceedings pursuant to 28. U.S.C. § 2254. ECF No. 1 ("Pet."). On October 4, 2017, Mr. Romero filed a First Amended Petition for Writ of Habeas Corpus. ECF No. 65 ("FAP"). Petitioner challenges his convictions for second degree murder, gross vehicular manslaughter, driving under the influence causing injury, driving with a .08 blood alcohol level or higher causing injury, and hit and run with death or permanent serious injury. FAP at 2; see also ECF No. 71-1 ("Answer") at 9 and Lodgment 34. Respondent answered the FAP on January 29, 2018. ECF No. 71. Petitioner filed a traverse on February 11, 2018. ECF No. 76.

This Court has considered the FAP, Answer, Traverse, and all supporting documents filed by the parties. For the reasons set forth below, this Court RECOMMENDS that Petitioner's Petition for Writ of Habeas Corpus be DENIED.

FACTUAL AND PROCEDURAL BACKGROUND

The following facts are taken from the California Court of Appeal's opinion in People v. Romero, 2013 WL 1808701 (Cal. Ct. App. April 30, 2013):

On Easter day in 2010, Romero went to a party at the home of his ex-wife, Christina Gold. When Romero arrived at Gold's home between 2:00 and 3:00 p.m., he was already intoxicated. Romero had tequila and some beer while at the party. He made a comment to Gold that if he drove, someone was going to die that night. After Romero became loud and belligerent, Gold told him to "crash on the couch." Romero vomited several times.

Romero's daughter, Victoria Shacreaw, left the party around 5:00 p.m. and returned two hours later. Romero was asleep while Shacreaw was gone. Around 7:30 p.m., Romero stated to Shacreaw, "If I drive right now either I'm gonna die or some innocent's gonna die." At 8:40 p.m., neighbors came to the house and said they were going to have Romero's car towed because it was in their driveway. Shacreaw asked Romero for his keys in order to move the car, but Romero pushed her and the neighbors out of the way and took off. As Romero was running down the stairs, Shacreaw told him to give her the keys because he was too drunk to drive.

Romero's son, Nicholas, was also at the party that day. Nicholas left the party in the afternoon and returned to the home that he shared with his father. Around 9:00 p.m. that night, Nicholas heard Romero's Camaro pull into the driveway. When Nicholas went outside to Romero's car, Romero was sitting in the driver's seat talking on the phone. Romero drove away around 10:00 p.m.

Shortly before midnight, Robert Houston was driving southbound on Interstate 5 near San Onofre when he looked in his rearview mirror and saw a sports car approaching him very fast. The sports car was traveling at approximately 100 miles per hour and recklessly changing lanes. Other witnesses also observed a dark Camaro traveling at a high rate of speed and recklessly moving across lanes of traffic. The Camaro then hit the rear end of a Ford Explorer, causing the Explorer to spin and hit the guardrail.

Lopez, Sr., and his son, Oscar Lopez, Jr., were thrown out of the Explorer. Lopez, Sr. died from his injuries and Lopez, Jr., who was found lying on the northbound side of the freeway, suffered a laceration on his head that required staples torepair. Two other passengers did not sustain any injuries requiring treatment.

When Officer Mark Keyes and his partner arrived at the site of the accident, they received information that the driver of the Camaro had fled the scene. The officers spotted Romero walking along a frontage road next to the freeway. Romero darted down a trail towards the beach. Border Patrol agents found Romero lying in the brush. Although agents did not mention the crash, Romero immediately stated that he was not the driver of the vehicle. He claimed the driver was a man named "Ted," who he met at Lucky John's bar in Fullerton that night. Romero told officers that he was drinking beers with Ted at the bar and later, in a nearby park.

Romero's blood was drawn at a hospital. His DNA matched DNA from blood samples taken from the driver's side airbag in the Camaro and a metal guardrail. When Romero's blood was drawn at 2:05 a.m., his blood alcohol level was .10 percent. Jorge Pena, a criminalist with the San Diego County Sheriff's Crime Laboratory, testified that based on a normal rate of elimination, Romero's blood alcohol level at the time of the crash was between .125 and .145 percent. Pena explained that because of the "Mellanby effect," a person feels the effects of alcohol more during intake than during the time the body is eliminating alcohol from the system.

Lodgment 5 at 2-4.¹

On September 6, 2011, the People of the State of California filed an amended information charging Petitioner with murder, gross vehicular manslaughter while intoxicated, vehicular manslaughter - non alcohol-gross negligence - unlawful manner, driving under the influence causing injury, driving with a measurable blood alcohol causing injury, and hit and run with death or permanent serious injury. Lodgment 34 at 7-10. Following a trial, the jury found Petitioner guilty of second degree murder, gross vehicular manslaughter while intoxicated, driving under the influence causing injury, driving with a .08 blood alcohol level or higher causing injury, and hit and run with death or permanent serious injury. Id. at 214-218. The jury also found true that Petitioner fled the scene of the crime and personally inflicted great bodily injury upon a person. Id. The trial court found that Petitioner had a prior conviction and one prisonprior. Id. at 378. Petitioner was sentenced to fifteen years to life plus one year. Id. at 334, 381; see also Lodgment 11.

Petitioner appealed his conviction, arguing that (1) the record lacked sufficient evidence to sustain a conviction for implied malice murder and (2) his convictions for driving under the influence and causing injury and driving with a .08 blood alcohol level or higher and causing injury had to be reversed as they were lesser included offenses of vehicular manslaughter. Lodgment 3. On April 30, 2013, the California Court of Appeals filed an opinion affirming the judgment of the trial court as modified.² Lodgment 5. Petitioner filed a petition for rehearing on May 21, 2013 which was denied on May 22, 2013. Lodgments 6 and 7. Petitioner filed a petition for review with the California Supreme Court on June 4, 2013 which was denied on July 10, 2013. Lodgments 8 and 9.

On September 19, 2013, Petitioner filed a petition for writ of habeas corpus in the Superior Court of California, County of San Diego arguing that he was (1) convicted on an invalid information, (2) the recipient of ineffective assistance of counsel (3) a victim of prosecutorial misconduct, and (4) the victim of abuse of discretion when his motion to reduce the degree of his offense to manslaughter was denied. Lodgment 10. On December 5, 2013, the court denied three of Petitioner's claims and issued an order to show cause why the petition should not be granted as to Petitioner's ineffective assistance of counsel claim. Lodgment 11.

On March 24, 2014, Petitioner filed a First Amended Petition for Writ of Habeas Corpus in the Superior Court of California, County of San Diego in which he alleged the same four claims as his previous petition. Lodgment 14. On May 29, 2014, the court found that the primary argument being raised in the Amended Petition was Petitioner's claim that his right to Due Process was violated when the People failed to file the information within fifteen days of his preliminary examination and denied the Amended Petition noting that Petitioner's claim was waived. Lodgment 16.

On May 20, 2014, Petitioner filed a petition for writ of habeas corpus in this Court. ECF No. 1. On June 14, 2014, Petitioner filed a Motion to Stay and Abey the federal proceedings while he exhausted his new claims in state court. ECF No. 11. The Court issued a Report and Recommendation for order denying Petitioner's motion to stay and motion to amend on February 27, 2015. ECF No. 38. On March 3, 2015, Petitioner filed a request to extend time to object to the Court's Report and Recommendation because he had an evidentiary hearing scheduled for March 20, 2015 in his habeas case that was still proceeding in state court. ECF No. 40. As part of the request, Petitioner provided the Court with an order from Judge Elias of the Superior Court for the County of San Diego setting the evidentiary hearing and summarizing the pending ineffective assistance of counsel claims. Id. at 5-6. This order was not provided to the Court by either party as part of the original lodgments and attachments to the original pleadings. See Docket; see also ECF No. 41. In light of the new information, the Court withdrew its February 2017 Report and Recommendation and filed an Amended Report and Recommendation on March 26, 2015. ECF No. 41. On August 5, 2015, District Judge Gonzalo P. Curiel issued an Order Adopting in Part the Court's Amended Report and Recommendation, Denying Petitioner's Motion for Stay and Abeyance Pursuant to Rhines, Granting Petitioner a Stay Pursuant to Kelly, and Denying Petitioner's Motion to Amend the Petition. ECF No. 45.

On January 27, 2015, Petitioner filed another petition for writ of habeas corpus in the...