(HC) Valencia v. Gipson, No. 1:2012cv01783 - Document 8 (E.D. Cal. 2012)
Court Description: FINDINGS and RECOMMENDATIONS recommending that Grounds Two and Five be DISMISSED From the Petition for Writ of Habeas Corpus (Doc. 1 ), signed by Magistrate Judge Gary S. Austin on 11/20/2012. Referred to Judge O'Neill. Objections to F&R due within thirty (30) days. (Jessen, A)
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(HC) Valencia v. Gipson Doc. 8 1 2 3 4 5 6 7 8 9 UNITED STATES DISTRICT COURT 10 EASTERN DISTRICT OF CALIFORNIA 11 LUIS ALBERTO VALENCIA, 1:12-CV-01783 LJO GSA HC 12 Petitioner, 13 FINDINGS AND RECOMMENDATION REGARDING PETITION FOR WRIT OF HABEAS CORPUS v. 14 15 CONNIE GIPSON, Warden, 16 Respondent. / 17 18 19 Petitioner is a state prisoner proceeding pro se with a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254. 20 On October 31, 2012, Petitioner filed the instant petition. He challenges his conviction 21 sustained on October 21, 2010, in Merced County Superior Court for first degree murder; 22 commission of murder during the commission of mayhem; commission of murder during the 23 commission or attempted commission of torture; and kidnaping. Petitioner was sentenced to life 24 without the possibility of parole and a term of life with the possibility of parole plus ten years. 25 Petitioner raises five claims for relief: 1) He claims he was denied his constitutional right to a 26 speedy trial; 2) He contends the judgment must be reversed because the evidence given by an 27 accomplice was not corroborated; 3) He claims the jury was misinstructed about statements made by 28 the accomplice; 4) He alleges the prosecutor committed Griffin error by penalizing him for U .S. D istrict C ourt E. D . C alifornia cd 1 Dockets.Justia.com 1 exercising his Fifth Amendment right to refrain from testifying; and 5) He contends the abstract of 2 judgment must be corrected to indicate that the restitution amount is the joint and several 3 responsibility of all defendants convicted. 4 5 DISCUSSION I. Preliminary Review of Petition 6 Rule 4 of the Rules Governing § 2254 Cases requires the Court to make a preliminary review 7 of each petition for writ of habeas corpus. The Court must dismiss a petition "[i]f it plainly appears 8 from the petition . . . that the petitioner is not entitled to relief." Rule 4 of the Rules Governing 9 2254 Cases; see also Hendricks v. Vasquez, 908 F.2d 490 (9th Cir.1990). A federal court may only 10 grant a petition for writ of habeas corpus if the petitioner can show that "he is in custody in violation 11 of the Constitution . . . ." 28 U.S.C. § 2254(a). A habeas corpus petition is the correct method for a 12 prisoner to challenge the “legality or duration” of his confinement. Badea v. Cox, 931 F.2d 573, 574 13 (9th Cir. 1991), quoting, Preiser v. Rodriguez, 411 U.S. 475, 485 (1973); Advisory Committee Notes 14 to Rule 1 of the Rules Governing Section 2254 Cases. 15 II. Dismissal of Claim Two 16 In his second claim for relief, Petitioner complains that the evidence given by accomplice 17 Vasquez was not corroborated. Petitioner does not allege a violation of the Constitution. 18 Presumably, Petitioner’s claim centers on a violation of California’s rule that an accomplice’s 19 testimony be corroborated. See Cal. Penal Code § 1111.1 20 As a threshold matter, Petitioner's complaints about the alleged lack of corroboration for 21 Vasquez's testimony do not give rise to any federal constitutional concerns cognizable in federal 22 habeas review. “The Fourteenth Amendment does not forbid a state court to construe and apply its 23 laws with respect to the evidence of an accomplice.” Lisenba v. California, 314 U.S. 219, 227 24 (1941). While California law requires that accomplice testimony be corroborated, the corroboration 25 of accomplice testimony is not constitutionally mandated. See United States v. Augenblick, 393 26 27 28 1 Cal. Penal Code § 1111 provides that “[a] conviction can not be had upon the testimony of an accomplice unless it be corroborated by such other evidence as shall tend to connect the defendant with the commission of the offense; and the corroboration is not sufficient if it merely shows the commission of the offense or the circumstances thereof.” U .S. D istrict C ourt E. D . C alifornia cd 2 1 U.S. 348, 352 (1969) (“When we look at the requirements of procedural due process, the use of 2 accomplice testimony is not catalogued with constitutional restrictions.”); Laboa v. Calderon, 224 3 F.3d 972, 979 (9th Cir.2000) (“[a]s a state statutory rule, and to the extent that the uncorroborated 4 testimony is not ‘incredible or substantial on its face,’ [Section 1111] is not required by the 5 Constitution or federal law”; citations omitted); United States v. Lopez, 803 F.2d 969, 973 (9th 6 Cir.1986) (“The uncorroborated testimony of an accomplice is enough to sustain a conviction unless 7 the testimony is incredible or unsubstantial on its face.”); Odle v. Calderon, 884 F.Supp. 1404, 1418 8 (N.D.Cal.1995) ( “corroboration of accomplice testimony is not a federal constitutional 9 requirement”). Therefore, the mere fact that California law may have been violated in connection 10 with the accomplice’s testimony does not warrant federal habeas relief. See also Harrington v. Nix, 11 983 F.2d 872, 874 (8th Cir.1993) (“state laws requiring corroboration do not implicate constitutional 12 concerns that can be addressed on habeas review,” because “[t]here is no constitutional requirement 13 that accomplice testimony be corroborated”); Brown v. Collins, 937 F.2d 175, 182 n. 12 (5th 14 Cir.1991) (“the Constitution imposes no requirement that the testimony of an accomplice-witness be 15 corroborated by independent evidence,” and “a state court's failure to enforce that purely state rule, 16 simply would not warrant constitutional attention”); Takacs v. Engle, 768 F.2d 122, 127 (6th 17 Cir.1985) (“If uncorroborated accomplice testimony is sufficient to support a conviction under the 18 Constitution, there can be no constitutional right to instruct the jury that it must find corroboration 19 for an accomplice's testimony.”). Accordingly, the claim should be dismissed. 20 III. Dismissal of Claim Five 21 In his fifth claim for relief, Petitioner challenges the restitution fine imposed by the trial 22 court. He claims the abstract of judgment must be corrected to reflect joint and several responsibility 23 for the amount by all defendants convicted. The Court is without jurisdiction to consider such a 24 claim. See Bailey v. Hill, 599 F.3d 976, 982 (9th Cir. 2010) (“We . . . conclude that § 2254(a) does 25 not confer jurisdiction over a state prisoner's in-custody challenge to a restitution order imposed as 26 part of a criminal sentence.”). Therefore, Ground Five of the petition should be dismissed as well. 27 RECOMMENDATION 28 Accordingly, the Court RECOMMENDS that Grounds Two and Five be DISMISSED from U .S. D istrict C ourt E. D . C alifornia cd 3 1 the petition for writ of habeas corpus. 2 This Findings and Recommendation is submitted to the Honorable Lawrence J. O’Neill, 3 United States District Court Judge, pursuant to the provisions of 28 U.S.C. § 636 (b)(1)(B) and Rule 4 304 of the Local Rules of Practice for the United States District Court, Eastern District of California. 5 Within thirty (30) days after service of the Findings and Recommendation, Petitioner may file 6 written objections with the Court. Such a document should be captioned “Objections to Magistrate 7 Judge’s Findings and Recommendation.” The Court will then review the Magistrate Judge’s ruling 8 pursuant to 28 U.S.C. § 636 (b)(1)(C). Petitioner is advised that failure to file objections within the 9 specified time may waive the right to appeal the District Court’s order. Martinez v. Ylst, 951 F.2d 10 1153 (9th Cir. 1991). 11 12 13 IT IS SO ORDERED. Dated: 6i0kij November 20, 2012 /s/ Gary S. Austin UNITED STATES MAGISTRATE JUDGE 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 U .S. D istrict C ourt E. D . C alifornia cd 4
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