Case 2:21-cv-07337-FLA-MAR Document 15 Filed 04/06/22 Page 1 of 6 Page ID #:476

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UNITED STATES DISTRICT COURT

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CENTRAL DISTRICT OF CALIFORNIA

8 9 10 DANIEL MARTINEZ, Case No. 2:21-cv-07337-FLA (MAR) 11 Petitioner, 12 v. AMENDED FINAL REPORT AND

RECOMMENDATION OF UNITED

13 B. CATES, STATES MAGISTRATE JUDGE 14 Respondent. 15 16 17 This Amended Final1 Report and Recommendation is submitted to the 18 Honorable Fernando L. Aenlle-Rocha, United States District Judge, pursuant to 28 19 U.S.C. § 636 and General Order 05-07 of the United States District Court for the 20 Central District of California. 21 I. 22 SUMMARY OF RECOMMENDATION 23 Petitioner, Daniel A. Martinez (“Petitioner”), proceeding pro se, has filed a 24 Petition for Writ of Habeas Corpus (“Petition”) pursuant to 28 U.S.C. § 2254 25 challenging his 2018 conviction. ECF Docket No. (“Dkt.”) 1 at 2. Respondent filed 26 1 This Amended Final Report and Recommendation is nearly identical to both the original 27 Report and Recommendation, Dkt. 12, and the Final Report and Recommendation, Dkt. 13, except that the Court has fixed typographical errors which have no bearing on the outcome of 28 the Court’s determination in the original or Final Report and Recommendation. Case 2:21-cv-07337-FLA-MAR Document 15 Filed 04/06/22 Page 2 of 6 Page ID #:477

1 a Motion to Dismiss contending Petitioner failed to exhaust state remedies for the 2 second claim. Dkt. 7 at 1. For the reasons that follow, the Court recommends: (1) 3 GRANTING the Motion to Dismiss; (2) dismissing Claim Two of the Petition 4 without prejudice; and (3) directing Respondent to file an Answer responding to 5 Claim One. 6 II. 7 PROCEDURAL HISTORY 8 A. STATE COURT PROCEEDINGS 9 On November 10, 2016, following a jury trial in the Los Angeles County 10 Superior Court, Petitioner was found guilty of first-degree murder (Cal. Penal Code § 11 187(a)); second degree robbery (Cal. Penal Code § 211(a)); and unlawful firearm 12 activity (Cal. Penal Code § 29805). Dkt. 1 at 2; Lodgs.2 1 at 35–37; 4 at 2–3. The jury 13 also found true the special allegation that Petitioner personally used a firearm during 14 the offenses (Cal. Penal Code § 12022.53(b), (c), (d), & (e)(1)) and found the gang 15 enhancement (Cal. Penal Code § 186.22(b)(1)(A) & (b)(1)(C)) allegation true as to the 16 murder but not as to the robbery. Id.; Lodg. 1 at 35–37. On January 4, 2018, 17 Petitioner was sentenced to sixty-three (63) years to life in state prison. Lodgs. 1 at 18 40-42; 4 at 3. 19 2 The Court’s citations to Lodged Documents refer to documents lodged in support of 20 Respondent’s October 29, 2021 Motion to Dismiss. See Dkt. 7. Respondent identifies the documents in Dkt. 8, as follows: 21 (1) Docket in Los Angeles County Superior Court case number BA426418 (“Lodg. 1”); 22 (2) Codefendant Julio Reyes’s Opening Brief filed in California Court of Appeal case number B287411 (“Lodg. 2”); 23 (3) Petitioner’s Opening Brief filed in California Court of Appeal case number B287411 (“Lodg. 3”); 24 (4) Opinion filed in California Court of Appeal case number B287411 (“Lodg. 4”); 25 (5) Codefendant Julio Reyes’s Petition for Review filed in California Supreme Court case number S262007 (“Lodg. 5”); 26 (6) Petitioner’s Petition for Review filed in California Supreme Court case number S262007 (“Lodg. 6”); and 27 (7) Order denying Petition for Review in California Supreme Court case number S262007 (“Lodg. 7”). 28 Dkt. 8 at 1–2 . 2 Case 2:21-cv-07337-FLA-MAR Document 15 Filed 04/06/22 Page 3 of 6 Page ID #:478

1 Petitioner timely appealed his convictions to the California Court of Appeal. 2 Dkt. 1 at 2–3. In his appeal, Petitioner presented three (3) issues in his brief: 3 (1) The judgment must be reversed because the prosecutor discriminated on 4 the basis of race in the exercise of his peremptory challenges; 5 (2) The evidence was insufficient to support the gang enhancement under 6 section Cal. Penal Code § 186.22(b)(1); and 7 (3) The trial court abused its discretion when it failed to strike the gun 8 enhancements in a case without convincing proof that appellant himself 9 possessed a gun or shot one. 10 Lodg. 4 at 22–72 Petitioner also specifically joined the following arguments made in 11 his codefendants’ briefs: 12 (1) Certain gang evidence was not admissible; 13 (2) The admission of Sailor’s statements to the paid informant deprived 14 appellant of his right to confrontation and violated the hearsay rules; 15 (3) The alterations of the transcript of the informant’s conversation with Sailor 16 deprived appellant of a fair trial; and 17 (4) Cumulative error requires a reversal. 18 Lodg. 4 at 73. Petitioner generally joined all other arguments of his codefendants to 19 the extent they benefited him. Id. On April 15, 2020, the California Court of Appeal 20 ordered the abstract of judgment corrected but otherwise affirmed the judgment. 21 Lodg. 4 at 55. On July 29, 2020, the California Supreme Court denied discretionary 22 review. Lodgs. 5–7 . Petitioner has not filed any state petitions for postconviction 23 relief. Dkt. 1 at 3–5. 24 B. FEDERAL HABEAS PETITION 25 26 27 28 3 Case 2:21-cv-07337-FLA-MAR Document 15 Filed 04/06/22 Page 4 of 6 Page ID #:479

1 On September 7, 2021, Petitioner constructively filed3 the instant 2 Petition. Dkt. 1. The Petition appears to present the following two (2) claims: 3 (1) Codefendant Sailor’s statements to the paid informant (A.M.) lacked 4 credibility (“Claim One”); 5 (2) Petitioner was notified by the Division of Adult Institution that an illegal 6 sentence was imposed (“Claim Two”). 7 Id. at 3. 8 On October 29, 2021, Respondent filed a Motion to Dismiss contending 9 Petitioner failed to exhaust his state remedies for Claim Two. Dkt. 7 at 1. Petitioner 10 has not filed an Opposition. 11 III. 12 DISCUSSION 13 A. CLAIM TWO HAS NOT BEEN PROPERLY EXHAUSTED AND 14 THEREFORE IS SUBJECT TO DISMISSAL 15 1. Applicable law 16 A state prisoner must exhaust his or her state court remedies before a federal 17 court may consider granting habeas corpus relief. 28 U.S.C. § 2254(b)(1)(A); 18 O’Sullivan v. Boerckel, 526 U.S. 838, 842 (1999). To satisfy the exhaustion 19 requirement, a petitioner must fairly present his or her federal claims in the state 20 courts to give the state the opportunity to pass upon and correct alleged violations of 21 the petitioner’s federal rights. Duncan v. Henry, 513 U.S. 364, 365 (1995) (per 22 curiam). A petitioner must give the state courts “one full opportunity” to decide a 23 federal claim by carrying out “one complete round” of the state’s appellate process to 24 properly exhaust a claim. O’Sullivan, 526 U.S. at 845. 25 26 27 3 Under the “mailbox rule,” when a pro se prisoner gives prison authorities a pleading to mail to 28 court, the court deems the pleading constructively “filed” on the date it is signed. Roberts v. Marshall, 627 F.3d 768, 770 n.1 (9th Cir. 2010). 4 Case 2:21-cv-07337-FLA-MAR Document 15 Filed 04/06/22 Page 5 of 6 Page ID #:480

1 For a petitioner in California custody, this generally means the petitioner must 2 have fairly presented his or her claims in a petition to the California Supreme Court. 3 See O’Sullivan, 526 U.S. at 845 (interpreting 28 U.S.C. § 2254(c)); Gatlin v. Madding, 4 189 F.3d 882, 888 (9th Cir. 1999) (applying O’Sullivan to California). A claim has 5 been fairly presented if the petitioner has both “adequately described the factual basis 6 for [the] claim” and “identified the federal legal basis for [the] claim.” Gatlin, 189 7 F.3d at 888. 8 2. Analysis 9 Here, although Petitioner filed a Petition for Review of the California Court of 10 Appeal decision with the California Supreme Court, his petition did not include Claim 11 Two. Lodg. 5–7. In his Petition for Review, Petitioner raised three (3) claims: 12 (1) the judgment must be reversed because the prosecutor discriminated on the 13 basis of race in the exercise of his peremptory challenges; 14 (2) the evidence was insufficient to support the gang enhancement under Cal. 15 Penal Code section 186.22(b)(1); and 16 (3) the trial court abused its discretion when it failed to strike the gun 17 enhancements in a case without convincing proof that Petitioner himself 18 possessed a gun or shot one. 19 Lodg. 6 at 23–36. None of these claims could be fairly construed to be identical to 20 Claim Two, and therefore the state courts have not had “one full opportunity” to 21 decide Claim Two. See O’Sullivan, 526 U.S. at 845; Gatlin, 189 F.3d at 888. 22 Accordingly, Claim Two has not been properly exhausted and appears subject to 23 dismissal. 24 IV. 25 RECOMMENDATION 26 27 28 5 Case □□□□□□□□□□□□□□□□□□□□□ Document 15 Filed 04/06/22 Page6of6 Page ID #:481

1 Accordingly, Claim Two appears subject to dismissal because it is 2 | unexhausted.* IT IS THEREFORE RECOMMENDED that the Court issue an 3 | Order: 4 (1) accepting this Report and Recommendation; 5 (2) GRANTING the Motion to Dismiss as to Claim Two; 6 (3) dismissing Claim Two of the Petition without prejudice; and 7 (4) directing Respondent to file an Answer responding to Claim One.’ 9 | Dated: April 6, 2022 10 J A 3 — 11 HONORABLE MARGO A. ROCCONI 12 United States Magistrate Judge 13 14 15 16 17 18 19 20 21 22 23 24 25 | * Furthermore, as of the date of this Recommendation, Petitioner has not filed an Opposition to the 26 | Motion to Dismiss. Petitioner’s non-opposition may be fairly construed as consent to grant the 27 Motion. See L.R. 7-12. Respondent should not file an Answer, nor should Petitioner file a Reply, at this time. The Court 28 | will issue instructions when and if this Report and Recommendation is accepted by the District Judge. □