Wednesday, October 27, 2010

Northern California Judges deny petitions for Habeas Corpus

Photo Courtesy of Publik15
Several Northern California Judges have recently denied petitions for habeas corpus.

Sosa v. Curry involves a petitioner convicted by a Los Angeles County jury of second degree murder and subsequently sentenced by the trial judge to fifteen years to live in prison.  The Board of Parole Hearings denied his request for parole in 2007 and 2008.  Mr. Sosa contends that this denial violates Due Process or, alternately, effectively is a life sentence without parole in violation of the Ex Post Facto Clause of Article 1 Section 10 of the U.S. Constitution.

Judge William H. Alsup never reached the merits of the petition because the Ex Post Facto claim was not raised in Mr. Sosa's state petition for habeas corpus.  Since there is a claim that has not yet been exhausted the entire petition must be dismissed.  It's not clear how much the Ex Post Facto argument would have helped Mr. Sosa since the U.S. Supreme Court found that the California parole statute was not an Ex Post Facto law in California Dept. of Corrections v. Morales (U.S. 1995).
Navarro v. Curry involves a known arsonist who an Alameda County Superior Court jury convicted of reckless burning in 2000 and arson in 2003.  The trial court sentenced Mr. Navarro to ten years in prison.  Mr. Navarro now seeks to be released because his trial was delayed for five months in violation of his Sixth Amendment right to a speedy trial.  Judge William Alsup stated that under Barker v. Wingo (U.S. 1972) courts consider 1) the length of the delay, 2) the reasons for the delay, 3) the defendant's assertion of his right to a speedy trial, and 4) the prejudice to the defendant.  Here Mr. Navarro proffered no reason for the delay nor did he explain any prejudice therefore his claim failed.  Judge Alsup denied the petition.

In Bell v. Curry, a Los Angeles County Superior Court jury convicted Mr. Bell of second degree murder with a firearm.  The facts remain in dispute to this day, but Mr. Bell and his wife went over to his daughter's with shotguns and when her daughter's friend was leaving, Mrs. Bell shot her in the back with a shotgun.  The dispute appeared to be over $28 Mr. Bell gave his daughter.  Presently, Mr. Bell disputes a 2005 decision of Board of Parole Hearings (BPH) that denied him parole he claims that he has reformed since being in prison and should have been released.  Judge Marilyn Hall Patel disagreed stating that Mr. Bell has provided inconsistent accounts of the events underlying his imprisonment, relegating the incident to a mere accident and the underlying offense was serious enough in itself that BPH had "some evidence" to deny his parole.  She denied the petition.

Leonardos v. Duddress involves a former teacher at Alta Loma Middle School who made sexually suggestive remarks to a student leading to his conviction for annoying or molesting a minor (a misdemeanor) for which he is presently on probation.  Mr. Leonardos raises a claim of actual innocence as a basis for his petition.  Judge Jeffery S. White notes that there is some tension about whether actual innocence is a cognizable basis for habeas relief.  The confusion comes from seemingly contradicting passages in Herrera v. Colins (U.S. 1993).
[A] claim of "actual innocence" is not itself a constitutional claim, but instead a gateway through which a habeas petitioner must pass to have his otherwise barred constitutional claim considered on the merits.
We may assume, for the sake of argument in deciding this case, that in a capital case a truly persuasive demonstration of "actual innocence" made after trial would render the execution of a defendant unconstitutional, and warrant federal habeas relief if there were no state avenue open to process such a claim.
The Ninth Circuit read Herrera to create a due process right to pursue a claim of actual innocence as Judge White explained:
Under the Ninth Circuit’s interpretation of Herrera, a petitioner may raise claims of actual innocence in a habeas petition. See Carriger v. Stewart, (9th Cir. 1997) (en banc), cert. denied (1998). In reaching that interpretation, the court noted that "a majority of the Supreme Court assumed, without deciding, that execution of an innocent person would violate the Constitution[, and a] different majority of the Justices would have explicitly so held."  In a later opinion, the Ninth Circuit clarified its interpretation of Herrera when it held that “a majority of the Justices in Herrera would have supported a claim of free-standing actual innocence." Jackson v. Calderon,  (9th Cir. 2000).
Judge White first stated that actual innocence was no basis for a habeas petition and if it was, Mr. Leonardos' confession precluded its application in this case.

Gutierrez v. Malfi concerns a convicted burglar who alleged he received some lousy legal advice.  A Contra Costa County jury indited Mr. Gutierrez with second degree robbery by taking property by force or fear, second degree burglary by entering with the intent to commit larceny, second degree commercial burglary by entering with intent to commit larceny, and petty theft. The jury also found probable cause for using a deadly weapon (which carried a five-year sentencing enhancement).  The prosecutor offered the petitioner a plea deal whereby he would receive three years in prison with eligibility for work credit reductions.  Mr. Gutierrez's attorney recommended denying the plea stating that conviction for robbery was remote and the sentencing enhancement could not be enforced without the robbery conviction.  He further advised that the maximum sentence was five to six years and that the attorney would like to proceed to trial.

Mr. Gutierrez denied the plea offer and proceeded to trial.  It was a bad decision.  The jury convicted him of burglary AND the judge imposed the sentence enhancement resulting in nine and a half years in prison.  Mr. Gutierrez moved for a new trial citing ineffective assistance of counsel in that he would have taken the plea deal had he been properly advised of the sentencing framework.  The trial court conducted two evidentiary hearings on the issue and denied the motion.  The state appellate court denied the appeal on the merits stating that it was not clear that Mr. Gutierrez would have taken the plea even with knowledge of sentencing enhancements.

Judge Jeremy Fogel denied the petition for habeas corpus stating that Mr. Gutierrez needed to produce clear and convincing evidence that he would have taken the plea which he failed to do.

Cash v. Ayers involves a petitioner convicted of first degree murder who claims that the prosecutor's peremptory challenge of a juror based on religious belief was unlawful under Batson v. Kentucky.  Batson held that prosecutors could not discriminate against jurors on the basis of race.  Judge Jeremy Fogel explained that religion is a valid basis to challenge a prospective juror:
Both federal and state courts have held that it is not discriminatory to remove a juror whose religious beliefs would hinder him from convicting a criminal defendant or imposing the death penalty. See U.S. v. DeJesus,  (3d Cir. 2003); [U.S. v.] Stafford, [(7th Cir 1998)]; [P]eople v. Catlin,(Cal. 2001); People v. Ervin, (Cal. 2000).
He denied the petition for habeas corpus.

Casanas v. Yates involves a man who was admitted to a hospital on April 16, 2005 when he was stabbed in the buttocks with a knife.  While at the hospital, a police officer seized Mr. Casanas' pants and found drug paraphernalia.  After treatment he told police that he lived in a hotel room with his girlfriend Kimberly.  It turned out that Kimberly was a 16-year old addicted to methamphetamine which Mr. Casanas provided to her.  The record does not indicate where the trial occurred.  But, apparently, having an underage girlfriend is pretty common there because Juror Number Three was talking with Juror Number Five and a friend from high school about how he went to prom with a 17-year old girl when he was 22 and may have done some things as to incur liability under the same statute Mr. Casanas was accused of violating.  The judge dismissed Juror Number Three as he believed the juror could not fairly deliberate in the case.

Mr. Casanas' legal theory is interesting.
Citing Grotemeyer v. Hickman, 393 F.3d 871, 878-79 (9th Cir. 2004), Petitioner argues that Juror Number Three was merely bringing his life experiences to assist the jury in its deliberations.
Grotemeyer involved a physician who gave his opinion, as a doctor, on the evidence presented about the defendant's mental health.  Judge Claudia Wilken didn't see the connection:
Juror Number Three
related his personal experience in regard to the legitimacy of the charges against Petitioner, not to the evidence. The appellate court reasonably found that Juror Number Three was applying his experience to question the law, not using his experience to determine the facts.
She denied the petition for habeas corpus, but granted a certificate of appealability.

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