Rodrigo Andrade v. S. Frauenheim

• Court: District Court, C.D. California
• Decided: February 20, 2020
• Docket: 8:18-cv-00959
• Status: Unknown

Opinion

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA 10 RODRIGO ANDRADE, ) Case No. 8:18-cv-00959-JAK-JC 11 ) Petitioner, ) 12 ) v. ) ORDER ACCEPTING FINDINGS, 13 ) CONCLUSIONS, AND S. FRAUENHEIM, ) RECOMMENDATIONS OF 14 ) UNITED STATES MAGISTRATE Respondent. ) JUDGE 15 ) _______________________________ ) 16 17 Pursuant to 28 U.S.C. § 636, the Court has reviewed the Petition for Writ of 18 Habeas Corpus by a Person in State Custody (“Petition”), the parties’ submissions 19 in connection with petitioner’s Motion for Stay and Abeyance (“Stay Motion”), 20 and all of the records herein, including the November 1, 2019 Report and 21 Recommendation of United States Magistrate Judge (“Report and 22 Recommendation”), and petitioner’s objections thereto filed on February 13, 2020 23 (“Objections”). 24 The Court has made a de novo determination of those portions of the Report 25 and Recommendation to which objection is made. The Court concurs with and 26 accepts the findings, conclusions, and recommendations of the United States 27 Magistrate Judge, and overrules the Objections. 28 1 Petitioner complains that the Court has not given him sufficient warnings/ 2 time to file “final motions” with the Court. (Objections at 1). This contention is 3 frivolous. As the docket reflects, petitioner was granted eight extensions of time to 4 file a Reply to respondent’s Answer to the Petition (Docket Nos. 19, 21, 23, 25, 27, 5 29, 32, 34), four extensions of time to file a Reply to respondent’s Opposition to 6 the Stay Motion (Docket Nos. 39, 41, 47, 49) – the last of which advised petitioner 7 that no further extensions of such deadline would be granted, yet was followed by 8 further extension requests leading the Court to notify petitioner that if he wished to 9 make further arguments to support his Stay Motion he could do so in any 10 objections he might elect to file to the Report and Recommendation – and two 11 extensions of time to file objections to the Report and Recommendation. Petitioner 12 ultimately filed his Reply to the Answer on July 8, 2019, and his Objections to the 13 Report and Recommendation on February 13, 2020, which presumably include any 14 arguments petitioner might otherwise have intended to include in any reply to the 15 Opposition to the Stay Motion. There are no other pleadings which require 16 responses from petitioner. 17 In the Objections, petitioner appears to be attempting to raise for the first 18 time additional unexhausted claims to support the Stay Motion, i.e., ineffective 19 assistance of trial and appellate counsel claims for failure to challenge the 20 sufficiency of the evidence and failure to raise prosecutorial and judicial 21 misconduct at trial and on appeal, and an Eighth Amendment challenge to his 22 sentence. (Objections at 2-6, 8). The Court finds no cause to stay this action while 23 petitioner exhausts these new claims because – like the other unexhausted claims 24 addressed in detail in the Report and Recommendation – they are plainly meritless. 25 Rhines v. Weber, 544 U.S. 269, 277-78 (2005); Kelly v. Small, 315 F.3d 1063, 26 1070 (9th Cir.), cert. denied, 538 U.S. 1042 (2003), overruled on other grounds by 27 Robbins v. Carey, 481 F.3d 1143 (9th Cir. 2007). As explained in the Report and 28 Recommendation, petitioner’s Brady and sufficiency of the evidence claims are 2 1 without merit. See Report and Recommendation at 13-16. Accordingly, his trial 2 and appellate counsel were not ineffective for failing to raise such meritless claims 3 at trial or on appeal. See Rupe v. Wood, 93 F.3d 1434, 1445 (9th Cir. 1996), cert. 4 denied, 519 U.S. 1142 (1997). Petitioner’s appellate counsel raised on direct 5 appeal a specific challenge to the trial court’s denial of the new trial motion and 6 motion to unseal juror information, so counsel was not deficient for failing to raise 7 “judicial misconduct” claims. See Objections at 3 (noting claims appellate counsel 8 raised which includes the conduct petitioner complains about as “judicial 9 misconduct”). 10 The jury convicted petitioner of twelve counts for sexually molesting three 11 young girls by anal penetration, vaginal penetration, and groping/rubbing their 12 buttocks, breasts, and vaginas. (CT 315-23). Petitioner’s indeterminate sentence 13 of 45 years to life for these offenses which he alleges involved “nothing but 14 toachings [sic], squeezings [sic] and rubbing on the girls [sic] ‘private parts’” (see 15 Objections at 6), does not violate the Eighth Amendment. “The Eighth 16 Amendment, which forbids cruel and unusual punishments, contains a ‘narrow 17 proportionality principle’ that ‘applies to noncapital sentences.’” Ewing v. 18 California, 538 U.S. 11, 20 (2003) (quoting Harmelin v. Michigan, 501 U.S. 957, 19 996-97 (1991) (Kennedy, J., concurring)); see also Lockyer v. Andrade, 538 U.S. 20 63, 72 (2003) (noting that under “clearly established” Eighth Amendment 21 jurisprudence, “[a] gross disproportionality principle is applicable to sentences for 22 terms of years”). However, “[t]he gross disproportionality principle reserves a 23 constitutional violation for only the extraordinary case.” Andrade, 538 U.S. at 77; 24 see also Rummel v. Estelle, 445 U.S. 263, 272 (1980) (“Outside the context of 25 capital punishment, successful challenges to the proportionality of particular 26 sentences have been exceedingly rare.”). Petitioner’s indeterminate sentence of 45 27 years to life is not grossly disproportionate, and his is not an “extraordinary case” 28 of cruel and unusual punishment. Andrade, 538 U.S. at 76; Ewing, 538 U.S. at 3 1 || 30-31. Similarly lengthy sentences for crimes less serious than petitioner’s crimes 2 || have been upheld by the Supreme Court. See, e.g., Ewing, 538 U.S. at 29-31 3 || (upholding 25 years to life sentence for recidivist convicted most recently of grand 4 || theft); Andrade, 538 U.S. at 76 (upholding sentence of two consecutive 25 years to 5 || life terms for recidivist convicted most recently of two counts of petty theft with a 6 || prior conviction); Harmelin, 501 U.S. at 996 (upholding sentence of life without 7 || the possibility of parole for first offense of possession of 672 grams of cocaine); 8 || see also Chan v. Martel, 2009 WL 1445898 (C.D. Cal. May 20, 2009) (sentence of 9 || ten consecutive indeterminate prison terms of 50 years to life was not grossly 10 || disproportionate for defendant convicted of ten counts of committing a forcible 11 || lewd act upon a child, and thus sentence was not constitutionally cruel and 12 || unusual). 13 In light of the foregoing, the Court approves and accepts the Report and 14 || Recommendation, overrules the Objections, and denies the Stay Motion. 15 IT IS SO ORDERED. 16 17 || DATED: February 20, 2020 G hn, 18 19 20 (uted States District Judge 21 22 23 24 25 26 27 28