Free Response to Order to Show Cause - District Court of California - California

Case 3:07-cv-04796-WHA

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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 GERALD A. ENGLER Senior Assistant Attorney General 4 JULIET B. HALEY Deputy Attorney General 5 RENÉ A. CHACÓN, State Bar No. 119624 Supervising Deputy Attorney General 455 Golden Gate Avenue, Suite 11000 6 San Francisco, CA 94102-7004 Telephone: (415) 703-5957 7 Fax: (415) 703-1234 Email: [email protected] 8 9 Attorneys for Respondent 10 11 12 13 14 FLORENCIO TORRES RODRIGUEZ, 15 Petitioner, 16 v. 17 RICHARD SUBIO, 18 Respondent. 19 20 Respondent, Richard Subio, Warden at Chuckawalla Valley State Prison at Blythe, 21 California, provides this Answer to the Order to Show Cause. 22 23 24 I. CUSTODY Petitioner is lawfully confined in the custody of the California Department of Corrections No. C 07-04796 WHA IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF CALIFORNIA SAN FRANCISCO DIVISION

25 and Rehabilitation, pursuant to a judgment imposed by the Santa Clara County Superior Court on 26 July 20, 2004. A jury found petitioner guilty of four counts of lewd and lascivious conduct on a 27 child under the age of 14, Cal. Penal Code § 288(a), and returned findings of substantial sexual 28 conduct with respect to two counts, Cal. Penal Code § 1203.066(a)(8). The trial court sentenced
Answer Rodriguez v. Subio, No. C 07-04796 WHA

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1 petitioner to state prison for 10 years. See Respondent's Exhibit A (hereinafter "CT") at 130-34, 2 247-50, 253, 381, 384-85. 3 4 5 By amended information the Santa Clara County District Attorney charged petitioner with II. STATE PROCEDURAL HISTORY

6 four counts of lewd and lascivious conduct on a child under the age of 14 years, Cal. Penal Code § 7 288(a), and alleged substantial sexual conduct with respect to two counts, Cal. Penal Code § 8 1203.066(a)(8). See CT at 130-34. The information also alleged one prior prison term commitment, 9 Cal. Penal Code § 667.5(b). CT at 133. 10 On February 18, 2004, a jury found petitioner guilty as charged and found true the

11 substantial sexual conduct allegations with respect to two counts. CT at 247-50, 253. 12 On July 20, 2004, the trial court denied the defense motion for a new trial. CT at 381.

13 The trial court denied petitioner probation and imposed a 10-year prison term. CT at 381, 384-85. 14 On April 17, 2006, the California Court of Appeal affirmed the judgment in an

15 unpublished decision. See Petn. Exh. A. 16 17 Exh. B. 18 19 20 On September 18, 2007, petitioner filed the instant petition for writ of habeas corpus under III. FEDERAL PROCEDURAL HISTORY On June 28, 2006, the California Supreme Court denied the petition for review. See Petn.

21 28 U.S.C. § 2254. On September 24, 2007, the Court issued the Order to Show Cause. 22 23 24 Respondent denies each of petitioner's claims, denies that any of petitioner's claims state IV. CLAIMS FOR RELIEF

25 a basis for federal habeas corpus relief, and affirmatively alleges that petitioner's convictions did 26 not result from a violation of any federal constitutional right. Respondent incorporates by reference 27 the Points and Authorities filed in support of the Answer. Respondent specifically responds to each 28 claim as follows.
Answer Rodriguez v. Subio, No. C 07-04796 WHA

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1 Due Process Challenge To Venue 2 The California Court of Appeal found the claim was waived because petitioner failed to Accordingly, petitioner's federal claim is

3 raise a venue challenge in the state trial court.

4 procedurally defaulted. See Harris v. Reed, 489 U.S. 255, 260-63 (1989). Further, petitioner has 5 not met his burden of demonstrating cause for, or prejudice resulting from, this procedural default, 6 nor has petitioner demonstrated that the failure to reach the issue will result in a fundamental 7 miscarriage of justice. See Schlup v. Delo, 513 U.S. 298, 327 (1995). 8 Insufficient Evidence In Support Of Count Four 9 Petitioner has failed to show that the state court's disposition was "contrary to, or involved

10 an unreasonable application" of Jackson v. Virginia, 443 U.S. 307 (1979), or "was based on an 11 unreasonable determination of the facts in light of the evidence presented in the State court 12 proceeding." See 28 U.S.C. § 2254(d)(1), (2). 13 Ineffective Assistance Of Counsel 14 The state record shows that the state court's resolution of the merits is a reasonable

15 application of Strickland v. Washington, 466 U.S. 668 (1984). Petitioner has failed to show that the 16 state court's disposition was "contrary to, or involved an unreasonable application" of clearly 17 established United States Supreme Court precedent or "was based on an unreasonable determination 18 of the facts in light of the evidence presented in the State court proceeding." See 28 U.S.C. § 19 2254(d)(1), (2). 20 21 22 Petitioner exhausted his state remedies with respect to the federal claims found cognizable V. EXHAUSTION

23 in the instant petition. Rose v. Lundy, 455 U.S. 509 (1982); see Respondent's Exhibit B. 24 25 26 Respondent has lodged with the Clerk of the Court copies of the relevant state record: VI. AVAILABLE TRANSCRIPTS AND RECORD

27 Exhibit A (Clerk's Transcript); Exhibit B (Petition for Review); Exhibit C (Reporter's Transcript 28 of Opening Statements, pages 1-17); Exhibit D (Reporter's Transcript of February 9, 2004,
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1 Proceedings, pages 1-98); Exhibit E (Reporter's Transcript of Trial, pages 1-659). 2 3 4 Respondent alleges that petitioner received a full and fair hearing on all of this claims in VII. EXPRESS AND IMPLIED FACTUAL FINDINGS

5 the state courts, and that all express and implied factual findings by the state courts are entitled to 6 a presumption of correctness. 28 U.S.C. § 2254(d), (e)(1). Respondent denies that any claim made 7 by petitioner requires an evidentiary hearing by this Court. 28 U.S.C. § 2254(e)(2). 8 9 10 Respondent denies each and every factual or procedural allegation in the petition affording VIII. GENERAL DENIAL

11 a basis for relief that has not been expressly admitted in the Answer. Respondent incorporates by 12 reference any statements of fact material to the issues herein which are contained in the 13 accompanying memorandum of points and authorities or in the exhibits filed with this Court, to the 14 extent not inconsistent with the respondent's factual allegations herein. 15 16 17 18 19 20 21 22 23 24 25 26 27 28
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CONCLUSION Accordingly, respondent respectfully requests that the Court deny the petition for writ of

3 habeas corpus. 4 5 6 7 8 9 10 11 12 13 14 15 16 RAC:eaw 17 18 19 20 21 22 23 24 25 26 27 28
Answer Rodriguez v. Subio, No. C 07-04796 WHA 40199467.wpd SF2007402694

Dated: December 20, 2007 Respectfully submitted, EDMUND G. BROWN JR. Attorney General of the State of California DANE R. GILLETTE Chief Assistant Attorney General GERALD A. ENGLER Senior Assistant Attorney General JULIET B. HALEY Deputy Attorney General

/s/ RENÉ A. CHACÓN Supervising Deputy Attorney General Attorneys for Respondent

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