Trice v. Biter
| Decision Date | 10 September 2014 |
| Docket Number | Case No. 1:11-cv-00951-LJO-SKO-HC |
| Court | U.S. District Court — Eastern District of California |
| Parties | KEVIN LAQUAN TRICE, Petitioner, v. MARTIN BITER, Warden, Respondent. TOMMY NICHOLS, Petitioner, v. SCOTT FRAUENHEIM, Warden, Respondent. |
Petitioners Kevin Laquan Trice and Tommy Nichols are state prisoners proceeding pro se and in forma pauperis with petitions for writ of habeas corpus pursuant to 28 U.S.C. § 2254. The matters have been referred to the Magistrate Judge pursuant to 28 U.S.C. § 636(b)(1) and Local Rules 302 through 304.
Pending before the Court are two consolidated petitions for writ of habeas corpus brought by Petitioners who were tried together.
Petitioner Trice's petition was filed in case number 1:11-00951-LJO-SKO-HC on May 25, 2011, and transferred to this Court on June 10, 2011. Respondent filed an answer on July 24, 2012, and Petitioner filed a traverse on September 21, 2012.
Petitioner Nichols's petition was filed in case number 1:13-cv-01561-AWI-BAM-HC on September 12, 2013. An answer was filed on December 16, 2013; no traverse has been filed.
Because the petitions were filed after April 24, 1996, the effective date of the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA), the AEDPA applies in this proceeding. Lindh v. Murphy, 521 U.S. 320, 327 (1997); Furman v. Wood, 190 F.3d 1002, 1004 (9th Cir. 1999).
The challenged judgment was rendered by the Superior Court of the State of California, County of Stanislaus (SCSC), which is located within the territorial jurisdiction of this Court. 28 U.S.C. §§ 84(b), 2254(a), 2241(a), (d). Further, Petitioners claim that in the course of the proceedings resulting in their convictions, they suffered violations of their constitutional rights. Accordingly, the Court has jurisdiction over the subject matter of the action pursuant to 28 U.S.C. §§ 2254(a) and 2241(c)(3), which authorize a district court to entertain a petition for a writ of habeas corpus by a person in custody pursuant to the judgment of a state court only on the ground that the custody is in violation of the Constitution, laws, or treaties of the UnitedStates. Williams v. Taylor, 529 U.S. 362, 375 n.7 (2000); Wilson v. Corcoran, 562 U.S. - , -, 131 S.Ct. 13, 16 (2010) (per curiam).
As to Petitioner Trice, an answer was filed on behalf of Respondent Ron Barnes, who at the time the answer was filed was the warden of the High Desert State Prison (HDSP), where Petitioner Trice was incarcerated at the time of the filing of the petition and the answer. Respondent sought to substitute Warden Barnes as the Respondent in place of Warden McDonald. (Doc. 42.)
Petitioner initially named as a respondent a person who had custody of Petitioner within the meaning of 28 U.S.C. § 2242 and Rule 2(a) of the Rules Governing Section 2254 Cases in the District Courts (Habeas Rules). See, Stanley v. California Supreme Court, 21 F.3d 359, 360 (9th Cir. 1994). The fact that Petitioner was transferred to the Kern Valley State Prison (see doc. 51, filed April 17, 2013) after the petition was filed does not affect this Court's jurisdiction; jurisdiction attaches on the initial filing for habeas corpus relief, and it is not destroyed by a transfer of the petitioner and the accompanying custodial change. Francis v. Rison, 894 F.2d 353, 354 (9th Cir. 1990) (citing Smith v. Campbell, 450 F.2d 829, 834 (9th Cir. 1971)). Accordingly, the Court has jurisdiction over the person of the Respondent.
However, in view of the fact that the official website of the California Department of Corrections and Rehabilitation (CDCR) shows that the warden at KVSP is Martin Biter,1 it is HEREBY ORDERED thatMartin Biter, Warden of the Kern Valley State Prison, be SUBSTITUTED as Respondent pursuant to Fed. R. Civ. P. 25.
As to Petitioner Nichols, an answer was filed on behalf of P.D. Brazelton, who was Petitioner Nichols's custodian at the Pleasant Valley State Prison (PVSP) when the answer was filed, and who sought to be substituted as Respondent. Thus, Petitioner Nichols named a person with custody sufficient to give the Court jurisdiction over the person of the Respondent custodian.
However, in view of the fact that the official website of the CDCR shows that the warden at PVSP is now Scott Frauenheim, it is HEREBY ORDERED that Scott Frauenheim, Warden of the Pleasant Valley State Prison, be SUBSTITUTED as Respondent pursuant to Fed. R. Civ. P. 25.
Petitioners Trice and Nichols were tried together with Jermaine Michael Dean in the SCSC from November 14, 2006 through March 16, 2007; Bobbie Blueblood was also charged but was tried separately. (3 CT 867, 5 CT 1230-39; LD 1-2.)2
Petitioners were convicted of the first degree murder of Jose Ruiz perpetrated on March 3, 2002, during the commission of a robbery with the personal use and discharge of a firearm; residential robbery of Tatum and Jose Ruiz with gang enhancements and with the personal use and discharge of a firearm; and false imprisonment of Roshyla and Ezra Ruiz involving the personal use of a firearm and with gang enhancements. (LD 3, 1-2.) Each crime was alleged to have been committed for the benefit of, at the directionof, or in association with the Pasadena Denver Lane Bloods (PDL), a criminal street gang, but the gang allegation was dismissed during trial as to the murder count. Following an evidentiary hearing on a motion for new trial, all gang enhancements were stricken, but the new trial motion was otherwise denied. (Id. at 2-3.)
Petitioner Trice was sentenced to life in prison without the possibility of parole plus determinate and indeterminate terms as well as restitution and fines. (Id. at 2-3.) On June 29, 2010, in People v. Nichols et al., case number F055572, the Court of Appeal of the State of California, Fifth Appellate District (CCA) modified the judgment with respect to a fine but otherwise affirmed the judgment as to Petitioner Trice. (LD 3.) Petitioner filed a petition for review in the California Supreme Court (CSC). On October 13, 2010, in case number S184678, the CSC denied review without any statement of reasoning or citation of authority. (LD 4, LD 5.)
Petitioner Nichols was found to have suffered two prior serious felony convictions that were also strikes (§ 667, subds.(a) & (d)) and to have served three prior prison terms (§ 667.5, subd. (b)). Petitioner Nichols was sentenced to life without the possibility of parole on the murder, plus determinate and indeterminate terms. On appeal, the CCA affirmed the convictions, but reversed the firearms enhancements pursuant to Cal. Pen. Code § 12022.53(c) and (d) for insufficiency of the evidence and ordered that sentence be imposed on the section 12022.53, subdivision (b) enhancements. (LD 3, 11819, 122.) A petition for review filed in the California Supreme Court (CSC) was denied summarily on October 13, 2010, in case number S184678. (LD 4, LD 5.)
Petitioner Nichols was resentenced, and he appealed from the resentencing; on March 13, 2012, in People v. Nichols, case number F061963, 2012 WL 832612 (March 13, 2012), the CCA affirmed the judgment but ordered the abstract be modified to delete fines and correctly reflect the term and custody credits.
The docket of the CCA and CSC3 show that Petitioner Nichols filed a petition for writ of habeas corpus in the CCA on September 2, 2011, which was denied on September 15, 2011. In re Tommy J. Nichols, case no. F063212. On June 25, 2012, Petitioner Nichols filed a petition for writ of habeas corpus in the CSC, which summarily denied it on November 14, 2012. In re Tommy J. Nichols, case no. S203621.
In a habeas proceeding brought by a person in custody pursuant to a judgment of a state court, a determination of a factual issue made by a state court shall be presumed to be correct; the petitioner has the burden of producing clear and convincing evidence to rebut the presumption of correctness. 28 U.S.C. § 2254(e)(1); Sanders v. Lamarque, 357 F.3d 943, 947-48 (9th Cir. 2004). This presumption applies to a statement of facts drawn from a state appellate court's decision. Moses v. Payne, 555 F.3d 742, 746 n.1 (9th Cir. 2009). Here, Petitioner Trice expressly adopts thestatement of the case and statement of the facts set forth on pages 1 through 31 of the CCA's decision. (Trav., doc. 47, 16.) Accordingly, the following statement of the facts of the offenses consists of a summary of the facts as recorded in the CCA's decision in People v. Nichols et al., case number F055572, filed on June 29, 2010.
In March 2002, Tatum and Jose "JoJo" Ruiz, the homicide victim, lived with their two children, eight-year-old Roshyla and five-year-old Ezra, in a house on Montilla Lane, a small cul-de-sac in Modesto. Ruiz was known to law enforcement as a member of a Norteno gang called the West Side Boyz, and as a major distributor of base cocaine in west Modesto based on information from, and controlled buys conducted by, confidential informant Phillip Collins, who was Ruiz's friend and fellow drug dealer. In the previous year or so, Ruiz regularly bought cocaine by the kilo, cooked the cocaine and turned it into rock form, and then sold the product mostly by the ounce. According to Tatum, Ruiz did not sell drugs from their residence or keep more than small amounts of...
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