1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

United States District Court

Eastern District of California 

Casey Joseph Cicero,

Petitioner, No. Civ. S 04-2519 MCE PAN P

vs. Findings and Recommendations

William Duncan, Warden,

Respondent.

-oOoPetitioner is a state prisoner without counsel seeking a

writ of habeas corpus. He challenges a Sacramento County

conviction of first degree murder (felony murder in the course of

a robbery), for which he was sentenced to serve 25 years to life. 

The judgment was final December 23, 2003, 90 days after the

California Supreme Court denied review. 

The petition herein was filed November 29, 2004. 

Petitioner and Maria Tenorio enticed the victim into their

car with a promise of sex with Tenorio; they then attempted to 

Case 2:04-cv-02519-MCE -PAN Document 14 Filed 11/29/05 Page 1 of 4
1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

1 The rule that a criminal conviction cannot rest upon the

uncorroborated testimony of an accomplice to a crime does not implicate any

constitutional principle.

2 Under California’s corpus delicti rule, a defendant cannot be

convicted based only on his extrajudicial statements, confessions or

admissions. The rule ensures no one will be convicted falsely, based on his

or her words alone, of a crime that never happened. Independent proof

permitting an inference of criminal conduct satisfies the rule.

2

rob the victim, and petitioner or Tenorio stabbed him to death. 

Douglas Pugh later told the police petitioner admitted to him the

attempted robbery and killing.

The original petition alleged the prosecution relied on

Tenorio’s testimony and Pugh’s statement to police (which Pugh

disavowed at trial). The pleading did not explain how that

violated petitioner’s constitutional rights1 and, therefore, the

court dismissed the petition for failing to state a federal

claim. Petitioner filed an amended petition April 27, 2005,

after the one-year limitation period expired.

The amended petition alleges (1) introduction of

incriminating testimony from Tenorio, who had entered a plea

agreement with the prosecution, violated due process; (2)

introduction of Pugh’s statement after he recanted it violated

due process; (3) the state court’s ruling that California’s

corpus delicti rule2 did not apply to charges of felony murder

violated equal protection and due process; and (4) petitioner was

convicted based on insufficient evidence of the attempted robbery 

in violation of due process. 

Respondent moved July 11, 2005, to dismiss the petition upon

Case 2:04-cv-02519-MCE -PAN Document 14 Filed 11/29/05 Page 2 of 4
1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

3

the ground claims one, two and four of the amended petition are

unexhausted and claim three is time-barred.

Petitions presented to the California courts contained two

arguments: (1) that the corpus delicti rule applied and, (2) if

not, failure to apply it violated due process and equal

protection. The second argument “fairly presented” to the state

court petitioner’s claim three herein, which is exhausted.

This sole exhausted claim is time-barred, however. 

Petitioner argues claim three relates back to his initial

pleading, which complained about the use of Tenorio’s testimony

and Pugh’s statement to convict him, thus raising “cumulative”

parts of a single, exhausted claim. The state appellate court

held that even if the corpus delicti rule were applied to felony

murder charges against petitioner, his conviction would stand

because evidence from Tenorio, Pugh, and other witnesses who saw

the victim get in the car, and the victim’s body dead of a stab

wound, corroborated petitioner’s admission. 

This court finds petitioner’s claims one and two are not

cumulative to claim three; rather, they are entirely separate

arguments positing an alternative ground for relief should claim

three be rejected. Moreover, the events underlying claims one

and two (admission of Tenorio’s testimony and Pugh’s statement)

are different in “both time and type” from the events underlying

claim three (instruction of petitioner’s jury on the corpus

delicti rule). See Mayle v. Felix, U.S. , 125 S.Ct. 2562

(2005). Claim three does not “relate back” to the initial

Case 2:04-cv-02519-MCE -PAN Document 14 Filed 11/29/05 Page 3 of 4
1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

3 Petitioner has moved the court to compel respondent provide him with

transcripts his appellate attorney failed to give him. Delay in receipt of

transcripts is of no present moment, because it could not have caused delay in

presenting petitioner’s untimely claim (which could have been pleaded simply

by attaching appellant’s opening brief on appeal). Whether good cause exists

for delay in exhausting other claims is not before the court. 

4

pleading.

Accordingly, the court hereby recommends respondent’s July

11, 2005, motion to dismiss be granted, claim three be dismissed

with prejudice as time-barred, and claims one, two and four be

dismissed as unexhausted.3

Pursuant to the provisions of 28 U.S.C. § 636(b)(l), these

findings and recommendations are submitted to the United States

District Judge assigned to this case. Written objections may be

filed within 10 days of service of these findings and

recommendations. The document should be captioned “Objections to

Magistrate Judge’s Findings and Recommendations.” The district

judge may accept, reject, or modify these findings and

recommendations in whole or in part.

Dated: November 29, 2005. 

 /s/ Peter A. Nowinski 

 PETER A. NOWINSKI

 Magistrate Judge

Case 2:04-cv-02519-MCE -PAN Document 14 Filed 11/29/05 Page 4 of 4