Free Answer to Complaint - District Court of California - California

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1 EDMUND G. BROWN JR. Attorney General of the State of California 2 DANE R. GILLETTE Chief Assistant Attorney General 3 GARY W. SCHONS Senior Assistant Attorney General 4 KEVIN VIENNA Supervising Deputy Attorney General 5 ANTHONY DA SILVA, State Bar No. 159330 Deputy Attorney General 110 West A Street, Suite 1100 6 San Diego, CA 92101 P.O. Box 85266 7 San Diego, CA 92186-5266 Telephone: (619) 645-2608 8 Fax: (619) 645-2271 Email: [email protected] 9 10 Attorneys for Respondent 11 12 13 14 15 16 17 18 19 Respondents. 20 21 COMES NOW RESPONDENT, MACK JENKINS, Chief Probation Officer for San 22 23 24 1. Lopez has named California Attorney General Edmund G. Brown Jr. as an additional 25 respondent to his Petition. On federal habeas, if a "petitioner is on probation or parole, he may name his probation or parole officer `and the official in charge of the parole or probation agency, or the 26 state correctional agency, as appropriate.'" Ortiz-Sandoval v. Gomez, 81 F.3d 891, 894 (9th Cir. 27 1996). Attorney General Brown is not a proper respondent in this action. Rule 2 of the Rules following § 2254 provides that the state officer having custody of the petitioner shall be named as 28 the respondent. Rule 2(a), 28 U.S.C. foll. § 2254. However, "[i]f the petitioner is not yet in custody ­ but may be subject to future custody ­ under the state-court judgment being contested, the petition
08CV0457

IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF CALIFORNIA

ERNESTO RIVAS LOPEZ, Petitioner, v. MACK JENKINS, Chief Probation Officer, et. al.,

08CV0457-LAB (AJB) ANSWER TO PETITION FOR WRIT OF HABEAS CORPUS

Diego County,1/ by and through his counsel, Edmund G. Brown Jr., Attorney General for the

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1 State of California, and Anthony Da Silva, Deputy Attorney General, files his Answer to the 2 Petition for Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254 filed by Ernesto Rivas Lopez in 3 compliance with this Court's orders filed on April 25 and May 12, 2008. Under Rule 5 of the 4 Rules Governing Section 2254 Cases in the United States District Courts, Respondent hereby 5 denies and affirmatively alleges as follows: 6 7 8 I. PROCEDURAL AVERMENTS Lopez is lawfully on probation for five years in Respondent's custody on the condition

9 that he serve 365 days in county jail following a conviction by a San Diego County jury of 10 possession of cocaine for sale (Cal. Health & Safety Code § 11351; count 1); possession of 11 methamphetamine for sale (Cal. Health & Safety Code § 11378; count 2); possession of 12 marijuana for sale (Cal. Health & Safety Code § 11359; count 3); possession of ketamine (Cal. 13 Health & Safety Code § 11377(b)(2); count 5); possession of paraphernalia used for narcotics 14 (Cal. Health & Safety Code § 11364; count 6); and unauthorized possession of a hypodermic 15 needle or syringe (Cal. Bus. & Prof. Code § 4140; count 7) in Case No. SCD187886. (Lod. 1 16 Clerk's Transcript (CT) at 1-4; 52-57; Lod. 3 - Reporter's Transcript (RT) at 283-284.) The 17 court suspended imposition of the sentence and placed Lopez on probation for five years on the 18 condition that he serve 365 days in county jail. (Lod. 1 - CT at 132-134, 161; Lod. 3 - RT at 19 362-364.) 20 Lopez appealed, contending that: (1) the trial court erred in instructing the jury that

21 they could find him liable for possession for sale (counts 1-3) where he did not have the specific 22 intent to personally sell the controlled substance, but rather the specific intent that someone else 23 do so; and (2) the order granting probation improperly reflected the terms and conditions 24 imposed by the court. (Lod. 4 - Lopez's Opening Brief at 7-19.) In an unpublished opinion, the 25 California Court of Appeal, Fourth Appellate District, Division One, affirmed the judgment and 26 27 must name as respondents both the officer who has current custody and the attorney general of the 28 state where the judgment was entered. " Rule 2(b), 28 U.S.C. foll. § 2254. Here, there is no basis for Lopez to have named Attorney General Brown as a respondent in this action.
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1 remanded the case for the trial court to redetermine the terms of probation. (Lod. 7 - People v. 2 Lopez, No. D046705, slip. op. at 1-12 (June 2, 2006).) Lopez filed a review petition raising the 3 same claims (Lod. 8), which was denied by the California Supreme Court in Case No. S144907, 4 on August 16, 2006. (Lod. 9.) 5 On September 7, 2006, Lopez filed a habeas petition in San Diego County Superior

6 Court Case No. HC18635, wherein he alleged that he received ineffective assistance by his trial 7 counsel because he failed: (1) to pursue an "upward plea" to a greater but non-aggravated 8 offense which would have made Lopez eligible for relief from deportation; and, (2) to investigate 9 and present evidence that would have shown that Lopez was only guilty of possession or 10 transportation of drugs, leaving Lopez eligible for relief from deportation. (Lod. 10.) The 11 Superior Court issued an order to show cause (Lod. 11), and the San Diego County District 12 Attorney's Office filed a return. (Lod. 12.) Lopez filed a traverse. (Lod. 13.) The superior 13 court issued an order denying Lopez's petition on January 24, 2007. (Lod. 14.) 14 On February 27, 2007, Lopez filed a habeas petition raising the same claims in

15 California Court of Appeal, Fourth Appellate District, Division One, Case No. D050345.) (Lod. 16 15.) The Court of Appeal issued an order denying the petition on March 13, 2007. (Lod. 16.) 17 On June 25, 2007, Lopez filed a habeas petition raising the same claims in California

18 Supreme Court Case No. S154133. (Lod. 17.) The Supreme Court requested an informal 19 response, which was filed by Office of the Attorney General. (Lod. 18.) Lopez filed a reply. 20 (Lod. 19.) The California Supreme Court issued an order denying the Petition on February 13, 21 2008. (Lod. 20.) 22 23 24 25 Lopez filed the instant Petition in this Court on March 12, 2008. II. FACTUAL AVERMENTS The facts relevant to the determination of Lopez's Petition are summarized in the

26 opinion of the California Court of Appeal (Lod. 7 - People v. Lopez, No. D046705, slip. op. at 227 4), as well as the orders by the superior court (Lod. 14) and state appellate court (Lod. 16) 28 denying his state habeas corpus petitions. The state court's recitations are presumed to be
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1 correct. Briggs v. Galaza, 242 F.2d 1082, 1087 (9th Cir. 2001). 2 3 4 III. STANDARD OF REVIEW Lopez's Petition is governed by the Antiterrorism and Effective Death Penalty Act of

5 1996 ("AEDPA") because it was filed after its enactment on April 26, 1996. 110 Stat. 1214. See 6 Woodford v. Garceau, 538 U.S. 202, 207, 123 S. Ct. 1398, 155 L. Ed. 2d 363 (2003) (habeas 7 application filed after the AEDPA's effective date of April 24, 1996, is reviewed under the 8 AEDPA); Lockyer v. Andrade, 538 U.S. 63, 70, 123 S. Ct. 1166, 155 L. Ed. 2d 144 (2003). To 9 obtain federal habeas relief, Ma must satisfy either 28 U.S.C. § 2254(d)(1) or § 2254(d)(2). 10 Williams v. Taylor, 529 U.S. 362, 403, 120 S. Ct. 1495, 146 L. Ed. 2d 389 (2000). As amended 11 by the AEDPA, 28 U.S.C. § 2254 reads: 12 13 14 15 16 17 18 19 To obtain federal habeas relief, Lopez must satisfy either § 2254(d)(1) or § 2254(d)(2). (2) 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. (1) 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 (d) An application for a writ of habeas corpus on behalf of a person in custody pursuant to the judgement of a State court shall not be granted with respect to any claim that was adjudicated on the merits in State court proceedings unless the adjudication of the claim ­

20 Williams v. Taylor, 529 U.S. 362, 403, 120 S. Ct. 1495, 146 L. Ed. 2d 389 (2000). In addition, 21 the state court's factual determinations must be presumed correct, and the federal court must 22 accept all factual findings made by the state court unless the petitioner can rebut "the 23 presumption of correctness by clear and convincing evidence." 28 U.S.C. § 2254(e)(1); Purkett 24 v. Elem, 514 U.S. 765, 769, 115 S. Ct. 1769, 131 L. Ed. 2d 834 (1995); Thompson v. Keohane, 25 516 U.S. 99, 109, 116 S. Ct. 457, 133 L. Ed. 2d 383 (1995); Langford v. Day, 110 F.3d 1380, 26 1388 (9th Cir. 1997). 27 /// 28 ///
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IV. STATUTE OF LIMITATIONS, EXHAUSTION, PROCEDURAL BARS Lopez's Petition was timely filed with this Court. 28 U.S.C. § 2244(d)(1)(A). The

4 claims contained in his petition have been exhausted in the state courts and are not procedurally 5 barred. 6 7 8 V. CLAIMS Lopez claims that he received ineffective assistance by his trial counsel because he

9 failed: (1) to pursue an "upward plea" to a greater but non-aggravated offense which would have 10 made Lopez eligible for relief from deportation; and, (2) to investigate and present evidence that 11 would have shown that Lopez was only guilty of possession or transportation of drugs, leaving 12 Lopez eligible for relief from deportation. Lopez is not entitled to federal habeas corpus relief 13 because the state courts' denial on his claims on habeas corpus were not contrary to or an 14 unreasonable interpretation of established United States Supreme Court precedent, Strickland v. 15 Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984), and were not based on 16 an unreasonable determination of the facts presented to the state courts. See 28 U.S.C. § 17 2254(d). 18 19 20 VI. EVIDENTIARY HEARING Lopez claims that he is entitled to an evidentiary hearing because he has raised a

21 "colorable claim" of ineffective assistance of counsel and he should have been given such a 22 hearing by the state courts. (Pet. at 8; First Amend. Memo P&A at 22-24.) But the Ninth 23 Circuit's "colorable claim" standard on which Lopez relies (First Amended Memo P&A at 22, 24 citing Stankewitz v. Woodford, 365 F.3d 706, 708 (9th Cir. 2002) (quoting Smith v. McCormick, 25 914 F.2d 1153, 1170 (9th Cir. 1990)), has been overruled by the Supreme Court's decision in 26 Schriro v. Landrigan, (2007) 550 U.S. ___, 127 S. Ct. 1933, 167 L. Ed. 2d 482 (2007). The 27 analysis in evaluating the merits of a petition under § 2254(d) also applies when considering 28 whether to grant an evidentiary hearing on the petition: "[I]f the record refutes the applicant's
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1 factual allegations or otherwise precludes habeas relief, a district court is not required to hold an 2 evidentiary hearing." Schriro v. Landrigan, 127 S. Ct. at 1940. Schriro v. Landrigan overrules 3 Ninth Circuit authority regarding evidentiary hearings. Relying on pre-AEDPA authority, the 4 Ninth Circuit previously held that petitioners must receive an evidentiary hearing when they 5 satisfy the relatively "'low bar'" of alleging a "colorable claim" for relief. See Landrigan v. 6 Schriro, 441 F.3d 638, 643, 650 (9th Cir. 2006) (en banc), rev'd 127 S. Ct. 1933, 1944 (2007); 7 Earp v. Ornoski, 431 F.3d 1158, 1170 (9th Cir. 2005) (citing Insyxiengmay v. Morgan, 403 F.3d 8 657, 669-70 (9th Cir. 2005)); also Horton v. Mayle, 408 F.3d 570, 581-82 & n.6 (9th Cir. 2005); 9 cf. Williams v. Woodford, 384 F.3d 567, 586 (9th Cir. 2004) (pre-AEDPA); Phillips v. Woodford, 10 267 F.3d 966, 973 (9th Cir. 2001) (pre-AEDPA). With Lopez, state courts have already 11 considered his evidence, made findings, and reached legal conclusions regarding his claims that 12 attorney Besse rendered ineffective assistance. No further development of the record is 13 necessary because the state courts have already considered and rejected the evidence proffered 14 by Lopez. Accordingly, Lopez cannot show that an evidentiary hearing could enable him to 15 prove that the factual allegations of his Petition, if true, would entitle him to federal habeas 16 relief. Schriro v. Landrigan, 127 S. Ct. at 1940. 17 18 19 VII. LODGMENTS Counsel for Respondent will be lodging all the transcripts, briefs, and opinions in

20 counsel's possession that are required by Rules 5(c) and 5(d), 28 U.S.C. foll. § 2254. 21 /// 22 /// 23 /// 24 25 26 27 28
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VIII. CONCLUSION Respondent incorporates by reference the Memorandum of Points and Authorities filed

4 in support of his Answer. Except as expressly admitted in this Answer, Respondent denies each 5 and every allegation in Lopez's pending Petition. Respondent denies Lopez's claim of any 6 violation of his federal Constitutional rights, affirmatively alleges that the judgment and 7 conviction did not result from any violation of his federal Constitutional rights, and alleges that 8 the absence of any violation of the federal Constitution compels denial of federal habeas corpus 9 relief. 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28
08CV0457

Dated: June 18, 2008 Respectfully submitted, EDMUND G. BROWN JR. Attorney General of the State of California DANE R. GILLETTE Chief Assistant Attorney General GARY W. SCHONS Senior Assistant Attorney General KEVIN VIENNA Supervising Deputy Attorney General

s/Anthony DaSilva ANTHONY DA SILVA Deputy Attorney General Attorneys for Respondent ADS:jr
80251244.wpd

SD2008700230

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