Free Response to Habeas Petition - District Court of California - California

Case 3:08-cv-00088-WQH-NLS

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Filed 03/17/2008

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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 GARY W. SCHONS Senior Assistant Attorney General 4 DANIEL ROGERS Deputy Attorney General 5 KYLE NIKI SHAFFER, State Bar No. 122374 Deputy Attorney General 110 West A Street, Suite 1100 6 San Diego, CA 92101 P.O. Box 85266 7 San Diego, CA 92186-5266 Telephone: (619) 645-2226 8 Fax: (619) 645-2191 Email: [email protected] 9 10 Attorneys for Respondent 11 12 13 14 15 16 17 18 19 20 21 22 RESPONDENT, Thomas Hoffman,1/ by and through his counsel, Edmund G. Brown Jr., v. THOMAS HOFFMAN, Director, Respondent. RONALD EDWARD MONTIJO, SR., Petitioner, 08cv0088 WQH (NLS) ANSWER TO PETITION FOR WRIT OF HABEAS CORPUS

IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF CALIFORNIA

23 Attorney General of the State of California, and Kyle Niki Shaffer, Deputy Attorney General, 24 files this Answer to the Petition for Writ of Habeas Corpus (the "Petition") pursuant to the order of 25 this Court filed on January 16, 2008. Respondent alleges as follows: 26 1. Pursuant to Rule 25(d) of the Federal Rules of Civil Procedure, Respondent respectfully requests that Thomas Hoffman, Director of Adult Parole Operations, be substituted as the proper 28 named respondent in this case. 27
ANSWER TO PETITION FOR WRIT OF HABEAS CORPUS 08cv0088 WQH (NLS)

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I. Petitioner is in the lawful constructive custody of Respondent pursuant to a valid judgment

3 of conviction for preparing false documentary evidence in violation of California Penal Code section 4 134. Petitioner admitted the truth of an allegation that he had sustained one prior conviction for a 5 serious and/or violent felony (Cal. Penal Code §§ 667, 1170.12). Petitioner's judgment was entered 6 in the San Diego County Superior Court on March 11, 2005, before the Honorable Yuri Hoffman 7 in case number SCN 184797. 8 9 II. The Petition appears to have been filed within the applicable limitations period. 28 U.S.C.

10 § 2254(d). 11 12 III. Petitioner appears to have exhausted his available state-court remedies by presenting his

13 claims to the California Supreme Court in a petition for review. However, to the extent Petitioner 14 has failed to exhaust any claim, or any aspect of any claim, those claims are unexhausted. Without 15 waiving the right to require that Petitioner exhaust his remedies, Respondent respectfully requests 16 that this Court deny all of Petitioner's claims on the merits, notwithstanding any perceived failure 17 to exhaust, pursuant to 28 U.S.C. § 2254(b)(2). 18 19 IV. The deferential standard of federal habeas corpus review established by the Antiterrorism

20 and Effective Death Penalty Act of 1996 ("AEDPA"), 28 U.S.C. § 2254(d), applies to Petitioner's 21 claims. Under this deference standard, Petitioner's claims must be denied without de novo review 22 because the state courts previously rejected Petitioner's claims on the merits. The state courts' 23 findings were neither contrary to, nor an unreasonable application of, United States Supreme Court 24 precedent or the facts presented. 25 26 V. The state courts made numerous express and implied factual findings. Petitioner has

27 shown no grounds why the presumption of correctness mandated by 28 U.S.C. § 2254(e)(1) should 28 not apply to these factual findings.
ANSWER TO PETITION FOR WRIT OF HABEAS CORPUS 08cv0088 WQH (NLS)

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VI. Petitioner is not entitled to an evidentiary hearing to resolve his pending claims.

3 28 U.S.C. § 2254(e). 4 5 VII. The relevant facts and procedural history set forth in the accompanying Memorandum

6 of Points and Authorities are incorporated by reference herein. Except as expressly admitted, 7 Respondent denies each and every allegation of the Petition and specifically denies that Petitioner's 8 confinement is in any way improper, that any condition of Petitioner's confinement is illegal, or that 9 any of his rights has been or is being violated in any way. 10 For the reasons set forth more fully in the accompanying Memorandum of Points and

11 Authorities, the Petition should be denied with prejudice, the proceedings dismissed, and any 12 request for certificate of appealability denied. 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28
ANSWER TO PETITION FOR WRIT OF HABEAS CORPUS 08cv0088 WQH (NLS)
KNS:sm 80216868.wpd SD2008700055

Dated: March 17, 2008. Respectfully submitted, EDMUND G. BROWN JR. Attorney General of the State of California DANE R. GILLETTE Chief Assistant Attorney General GARY W. SCHONS Senior Assistant Attorney General DANIEL ROGERS Deputy Attorney General

s/KYLE NIKI SHAFFER KYLE NIKI SHAFFER Deputy Attorney General Attorneys for Respondent

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