Trevino v. Evans, No. 94CV1913 IEG (RBB).

CourtUnited States District Courts. 9th Circuit. United States District Court (Southern District of California)
Writing for the CourtIrma E. Gonzalez
Citation521 F.Supp.2d 1104
PartiesAnthony William TREVINO, Petitioner, v. Michael EVANS,<SMALL><SUP>1</SUP></SMALL> Respondent.
Docket NumberNo. 94CV1913 IEG (RBB).
Decision Date18 September 2007
521 F.Supp.2d 1104
Anthony William TREVINO, Petitioner,
v.
Michael EVANS,1 Respondent.
No. 94CV1913 IEG (RBB).
United States District Court, S.D. California.
September 18, 2007.

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COPYRIGHT MATERIAL OMITTED

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Anthony William Trevino, Soledad, CA, pro se.

Rebecca Putnam Jones, Law Offices of Rebecca Putnam Jones, San Diego, CA, for Petitioner.

Attorney General, Office of the Attorney General, San Diego, CA, for Respondent.

ORDER (1) REJECTING OBJECTIONS, (2) ADOPTING MAGISTRATE JUDGE'S REPORT AND RECOMMENDATION, (3) DENYING PETITION FOR WRIT OF HABEAS CORPUS, (4) DENYING MOTION FOR APPOINTMENT OF COUNSEL, and (5) GRANTING CERTIFICATE OF APPEALABILITY

IRMA E. GONZALEZ, Chief Judge.


Petitioner Anthony William Trevino ("Trevino"), a state prisoner proceeding through counsel, has filed a petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254 challenging his June 1992 conviction for first degree murder, conspiracy to shoot at an unoccupied vehicle, and shooting at an unoccupied vehicle. On March 6, 2007, Magistrate Judge Ruben B. Brooks filed a Report and Recommendation ("R & R") recommending the Court deny the petition. On March 26, 2007, Petitioner filed objections to the R & R. On July 20, 2007, petitioner filed a renewed motion for appointment of counsel, which Magistrate Judge Brooks previously denied.

Having reviewed all of the relevant pleadings in this case de novo, the Court finds Magistrate Judge Brooks's R & R to

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be thorough, complete, and an accurate analysis of the legal issues presented in the petition. The Court hereby rejects petitioner's objections to the R & R, adopts the R & R in full, and denies the petition. The Court likewise denies the renewed motion for appointment of counsel.

BACKGROUND

A. Factual Background2

Petitioner was prosecuted for his role in two shootings in the Greenfield Mobile Home Park ("Greenfield") on December 2, 1991. Petitioner and co-defendant Joseph Kinsey were passengers in a car driven by co-defendant Robert Connelly. A Chevrolet Blazer driven by James Whitney cut off Connelly's car. Connelly followed the Blazer to Greenfield, located it, and exited the park. Connelly, Kinsey, and petitioner then met co-defendant Carlos Gutierrez, Jr. at the San Diego Factory Outlet. Petitioner asked Gutierrez, "what was up with the nine?" and left the Factory Outlet with a gun.

The four co-defendants re-entered Greenfield in Gutierrez's car and located the Blazer. Then, they exited Greenfield and got into Connelly's car, with petitioner occupying the front passenger seat. Connelly drove back into Greenfield and by the Blazer. Petitioner filed several shots at the Blazer. As Connelly turned the street corner, petitioner fired a second series of shots, one of which hit and killed Alfredo Rodriguez. Kinsey testified that petitioner later stated he shot at Rodriguez because petitioner thought Rodriguez might have seen his face or Connelly's license plate.

On December 16, investigators found a loaded 9 millimeter handgun in petitioner's bedroom. The casings from the crime scene matched this weapon.

B. Procedural Background

In an information filed February 21, 1992, petitioner was charged with murder, conspiracy to shoot at an unoccupied vehicle, and shooting at an unoccupied vehicle. The information further alleged that petitioner used a firearm and intentionally inflicted great bodily injury by discharging a firearm from a motor vehicle. Attorney Hank Howlett initially represented petitioner and filed motions for discovery, severance, and suppression of evidence. (Lodgment No. 1, at 33.) On April 7, petitioner's family retained attorney Brent Barnes, who was substituted as counsel on April 10. (Lodgment No. 1(a), at 343-45.) When Mr. Barnes was substituted as counsel, the Hon. Frederic L. Link ("assignment judge") set the matter for trial on April 27. (Lodgment No. 3, at 7.)

On April 27, the assignment judge denied Mr. Barnes's motion for a continuance and assigned the trial to the Hon. Richard M. Murphy ("trial judge"). (Lodgment No. 3(b), at 2-3.) That same day, the trial judge estimated the trial would be trailed for two weeks because of a previously scheduled trial.3 (Lodgment No. 2(a), at

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273.) The previously scheduled trial ended with a plea agreement on April 29, and the trial judge trailed petitioner's case to May 1. (Id. at 292.) On May 1, the trial judge again trailed the case to May 5 but refused to hear Mr. Barnes's motion for a continuance because the assignment judge previously denied that motion. (Id. at 301, 305.) On May 4, the assignment judge trailed the case to May 11 and, directed Mr. Barnes to file no further continuance motions. (Lodgment No. 3, at 9.) On May 11, relying on the assignment judge's order that no further continuances would be granted, the trial judge denied Mr. Barnes's motion for an additional continuance. (Lodgment No. 2(c), at 1255.)

Mr. Barnes joined in the motion to sever on the basis of co-defendants' inculpatory statements, which Mr. Howlett previously filed. (Id. at 1296.) The trial judge denied all motions to sever. (Id. at 1299.)

Prior to trial, Kinsey pled guilty to one count of shooting at an unoccupied vehicle. (Lodgment No. 11, at 14.) At trial, Mr. Barnes joined co-defendants' objections to jury instructions on accomplice testimony. (See Lodgment No. 3(c), at 69-70 (during voir dire proceedings on May 12), & No. 2(l), at 3759-60 (during trial on May 27).) Therefore, the trial judge did not instruct the jury to view Kinsey's testimony "with care and caution," see CALJIC 3.18, or to require corroborating evidence before convicting petitioner on the basis of that testimony, see CALJIC 3.11. The trial judge did, however, instruct the jury not to consider why a person who may have been involved in the crime was not a defendant at trial. See CALJIC 2.11.5. The trial judge further instructed the jury concerning the general credibility of witnesses. See CALJIC 2.20 (enumerating `nonexclusive list of factors that "ha[ve] a tendency reasonably to prove or disprove the truthfulness of the testimony of a witness").

The jury convicted petitioner on all three counts and found the special allegations were true. (Lodgment No. 1, at 170-74.) Petitioner received an aggregate sentence of thirty years to life. (Lodgment No. 1(a), at 353.) Petitioner moved for a new trial or modification of verdict, id. at 309, and submitted a supplemental memorandum in support of this motion, id. at 337-41. This motion was denied. (Id. at 423.)

Petitioner appealed his conviction on July 28, 1992, alleging that he was deprived of his right to effective counsel by the trial court's denials of requests for a continuance, counsel's objection to accomplice jury instructions, and counsel's failure to move for severance on the basis of inconsistent defenses. (Id. at 455, & Lodgment No. 4, Table of Contents.) Petitioner also filed a petition for writ of habeas of corpus in the California Court of Appeal (Lodgment No. 5.) The California Court of Appeal jointly considered the appeal and petition, affirming the conviction and denying the petition. (Lodgment No. 11.) The Court of Appeal likewise denied petitioner's petition for rehearing. (Lodgment No. 13.)

Petitioner then filed a petition for review and petition for writ of habeas corpus in the California Supreme Court. (Lodgment Nos. 14 & 15.) The court summarily denied both petitions on February 23, 1994. (Lodgment Nos. 16 & 17.)

On December 21, 1994, petitioner filed a petition for writ of habeas corpus in this Court. (Doc. No. 1.) On June 29, 1995, petitioner moved to withdraw the single unexhausted claim included in that petition. (Doc. No. 4.) Magistrate Judge Roger C. McKee nonetheless issued a report

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and recommendation on July 10, 1995, recommending dismissal of the entire petition for the failure to exhaust. (Doc. No. 5.) This Court adopted the report and recommendation on September 8, 1995 and dismissed the petition. (Doc. No. 6.)

On April 18, 1996, petitioner moved again to withdraw the unexhausted claim and requested reconsideration of his petition. (Doc. No. 8.) In an Order issued May 15, 1996, the Court recognized the prior dismissal of the petition and stated that it would disregard documents filed subsequent to that dismissal. (Doc. No. 9.)

Petitioner filed a first amended petition nunc pro tune to January 29, 2004. (Doc. No. 11.) The amended petition raised the three claims petitioner exhausted in state court (i.e., denial of continuance, failure to move for severance based on inconsistent defenses, and objection to accomplice jury instructions). This Court construed the first amended petition as a motion for relief from judgment pursuant to Federal Rule of Civil Procedure 60(b). (Doc. No. 12.) The Court denied Rule 60(b) relief on May 21, 2004. (Doc. No. 21.)

On November 15, 2005, the Ninth Circuit reversed, holding that the Court should have granted petitioner's motion to amend his original petition. Trevino v. Prunty, 150 Fed.Appx. 741, 742 (9th Cir. 2005). The panel cited this Court's failure to acknowledge petitioner's first motion to withdraw his unexhausted claim, the "misleading" directive not to file further pleadings after the petition was dismissed, the incompetence of petitioner's first attorney (who let the statute of limitations run), and the procrastination of petitioner's second attorney (who failed to act for an additional two years). Id. All these factors amounted to "extraordinary circumstances" warranting Rule 60(b) relief. Id. The panel directed this Court to consider the amended petition on the merits. Id.

Respondent answered the first amended petition on' August 16, 2006. (Doc. No. 49.) Petitioner filed a traverse on October 10, 2006. (Doc. No. 51.) On March 6, 2007, Magistrate Judge Ruben B. Brooks issued a forty' four page R & R recommending this Court deny the petition with respect to all three of...

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2 practice notes
  • Kessler v. Johnson, No. 1:10-cv-00322-LJO-BAM HC
    • United States
    • United States District Courts. 9th Circuit. United States District Courts. 9th Circuit. Eastern District of California
    • January 4, 2016
    ...guilt in pretrial conference, used profanity before the jury, and failed to request an overt act instruction); Trevino v. Evans, 521 F.Supp.2d 1104, 1119 (S.D.Cal. 2007) (declining to apply presumption of prejudice where counsel had only 30 days to prepare for trial after his substitution);......
  • Abdin v. Ryan, CV-16-2003-PHX-GMS (JFM)
    • United States
    • United States District Courts. 9th Circuit. United States District Courts. 9th Circuit. District of Arizona
    • March 28, 2017
    ...that the verdict would have been different' if the trial judge granted the hypothetical severance motion." Trevino v. Evans, 521 F. Supp. 2d 1104, 1111-12 (S.D. Cal. 2007). Here, the evidence of Petitioner's guilt was not in equilibrium. On the one hand, the prosecution presented evide......
2 cases
  • Kessler v. Johnson, No. 1:10-cv-00322-LJO-BAM HC
    • United States
    • United States District Courts. 9th Circuit. United States District Courts. 9th Circuit. Eastern District of California
    • January 4, 2016
    ...guilt in pretrial conference, used profanity before the jury, and failed to request an overt act instruction); Trevino v. Evans, 521 F.Supp.2d 1104, 1119 (S.D.Cal. 2007) (declining to apply presumption of prejudice where counsel had only 30 days to prepare for trial after his substitution);......
  • Abdin v. Ryan, CV-16-2003-PHX-GMS (JFM)
    • United States
    • United States District Courts. 9th Circuit. United States District Courts. 9th Circuit. District of Arizona
    • March 28, 2017
    ...that the verdict would have been different' if the trial judge granted the hypothetical severance motion." Trevino v. Evans, 521 F. Supp. 2d 1104, 1111-12 (S.D. Cal. 2007). Here, the evidence of Petitioner's guilt was not in equilibrium. On the one hand, the prosecution presented evidence t......

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