EDMUND F. BRENNAN, Magistrate Judge.
Petitioner is a California state prisoner proceeding pro se with an application for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. He was convicted in the Sacramento County Superior Court of aiding and abetting first degree murder. He now raises the following claims: (1) the trial court erred and abused its discretion by admitting unauthenticated evidence, namely posts from the social networking service Instagram; and (2) the admission of those Instagram posts violated petitioner's due process rights because it constituted unreliable hearsay. Respondent filed an answer to these claims, ECF No. 23, and petitioner filed a traverse, ECF No. 26. The matter is submitted for decision.
On January 25, 2014, Victor Aranda was socializing with several friends — Marissa Mesa (the woman Aranda was dating), Yvette Arguello, and Derrick ("D.J.") Kamekona — in the driveway of a house that belonged to an acquaintance named Sergio Cortez (who was also present). Three men — petitioner, his nephew Victor Lopez, and his cousin Ruben Guajardo — approached Cortez's house. Petitioner and Lopez walked up the driveway toward Aranda and the others. Guajardo hung back and paced in the street in front of the house.
Conversation was initially friendly. Petitioner asked Cortez if he knew where he could get some cocaine and the latter said that he did not. Petitioner then turned his attention to Aranda and asked him if he would step away from the others to talk privately — again about the possibility of obtaining cocaine. Aranda agreed and the two men moved away from the house and toward the street. Lopez remained with the others and Guajardo remained in the street.
At some point after the separation Arguello testified that she heard running footsteps approaching and someone call out "What's up nigger?" Aranda was heard to reply, "What's up?" The questioner then said, "All right, bitch ass, nigger." Gunshots rang out — witness accounts differ as to the number of shots, ranging from five to twelve. The gathered friends scattered.
Aranda died after sustaining multiple gunshot wounds. An autopsy found eleven separate entrance and exit wounds caused by four bullets. Based on the entrance wounds on Aranda's body, investigators determined that the killer had been four or five feet away from Aranda when he opened fire.
Petitioner and Guajardo were both arrested and the homicide detectives informed the two men that they knew one of them was the shooter. Initially, Guajardo denied being present that night. Later he changed his story, acknowledging his presence but stating that three masked men were responsible for the killing. In an interview with detectives, petitioner stated that he didn't know what happened the night of Aranda's murder. He also repeatedly emphasized that he had three children and could not imagine being imprisoned and kept away from them.
Eventually, after detectives made clear that they had multiple witnesses placing him at the scene on the night of the murder, Guajardo admitted that he shot Aranda. He claimed that he had done so after Aranda looked at him with "death in his eyes" and dipped into his pocket for something — possibly a gun. Guajardo stated his belief that it was "either me or him."
After Guajardo's admission, detectives left petitioner and Guajardo alone in the interview room. Petitioner told Guajardo "You should have went with my gut when I said, `No, nigga, let's not go.'" Guajardo replied "They're not gonna find the gun. What you guys do with my clothes? You burn `em? Are you sure?" Petitioner replied "Everything, seriously."
Petitioner was eventually charged with aiding and abetting the first-degree murder. Over his objections, law enforcement testified about recovered Instagram posts which were dated to November 24, 2013. An account with the handle "Smackcityboy" — whom the prosecution alleged was petitioner — wrote to user "Vickfukndamone" — an account identified as belonging to Aranda.
Prosecutors argued that the posts were evidence that a debt had gone bad between the two men and was the underlying motive for Aranda's murder. They argued petitioner planned the killing with Guajardo and intended to lure Aranda down the driveway to facilitate a clear shot.
28 U.S.C. § 2254, as amended by the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"), provides in relevant part as follows:
Section 2254(d) constitutes a "constraint on the power of a federal habeas court to grant a state prisoner's application for a writ of habeas corpus." (Terry) Williams v. Taylor, 529 U.S. 362, 412 (2000). It does not, however, "imply abandonment or abdication of judicial review," or "by definition preclude relief." Miller El v. Cockrell, 537 U.S. 322, 340 (2003). If either prong (d)(1) or (d)(2) is satisfied, the federal court may grant relief based on a de novo finding of constitutional error. See Frantz v. Hazey, 533 F.3d 724, 736 (9th Cir. 2008) (en banc).
The statute applies whenever the state court has denied a federal claim on its merits, whether or not the state court explained its reasons. Harrington v. Richter, 562 U.S. 86, 100 (2011). State court rejection of a federal claim will be presumed to have been on the merits absent any indication or state law procedural principles to the contrary. Id. at 784-785 (citing Harris v. Reed, 489 U.S. 255, 265 (1989) (presumption of a merits determination when it is unclear whether a decision appearing to rest on federal grounds was decided on another basis)). "The presumption may be overcome when there is reason to think some other explanation for the state court's decision is more likely." Id. at 785.
The phrase "clearly established Federal law" in § 2254(d)(1) refers to the "governing legal principle or principles" previously articulated by the Supreme Court. Lockyer v. Andrade, 538 U.S. 63, 71 72 (2003). Only Supreme Court precedent may constitute "clearly established Federal law," but courts may look to circuit law "to ascertain whether...the particular point in issue is clearly established by Supreme Court precedent." Marshall v. Rodgers, 133 S.Ct. 1446, 1450 (2013).
Section 2254(d)(1) applies to state court adjudications based on purely legal rulings and mixed questions of law and fact. Davis v. Woodford, 384 F.3d 628, 637 (9th Cir. 2003). The two clauses of § 2254(d)(1) create two distinct exceptions to AEDPA's limitation on relief. Williams, 529 U.S. at 404-05 (the "contrary to" and "unreasonable application" clauses of (d)(1) must be given independent effect, and create two categories of cases in which habeas relief remains available).
A state court decision is "contrary to" clearly established federal law if the decision "contradicts the governing law set forth in [the Supreme Court's] cases." Id. at 405. This includes use of the wrong legal rule or analytical framework. "The addition, deletion, or alteration of a factor in a test established by the Supreme Court also constitutes a failure to apply controlling Supreme Court law under the `contrary to' clause of the AEDPA." Benn v. Lambert, 283 F.3d 1040, 1051 n.5 (9th Cir. 2002). See, e.g., Williams, 529 U.S. at 391, 393 95 (Virginia Supreme Court's ineffective assistance of counsel analysis "contrary to" Strickland
A state court decision "unreasonably applies" federal law "if the state court identifies the correct rule from [the Supreme Court's] cases but unreasonably applies it to the facts of the particular state prisoner's case." Williams, 529 U.S. at 407 08. It is not enough that the state court was incorrect in the view of the federal habeas court; the state court decision must be objectively unreasonable. Wiggins v. Smith, 539 U.S. 510, 520 21 (2003). This does not mean, however, that the § (d)(1) exception is limited to applications of federal law that "reasonable jurists would all agree is unreasonable." Williams, 529 U.S. at 409 (rejecting Fourth Circuit's overly restrictive interpretation of "unreasonable application" clause). State court decisions can be objectively unreasonable when they interpret Supreme Court precedent too restrictively, when they fail to give appropriate consideration and weight to the full body of available evidence, and when they proceed on the basis of factual error. See, e.g., Williams, 529 U.S. at 397-98; Wiggins, 539 U.S. at 526 28 & 534; Rompilla v. Beard, 545 U.S. 374, 388 909 (2005); Porter v. McCollum, 558 U.S. 30, 42 (2009).
The "unreasonable application" clause permits habeas relief based on the application of a governing principle to a set of facts different from those of the case in which the principle was announced. Lockyer, 538 U.S. at 76. AEDPA does not require a nearly identical fact pattern before a legal rule must be applied. Panetti v. Quarterman, 551 U.S. 930, 953 (2007). Even a general standard may be applied in an unreasonable manner. Id. In such cases, AEDPA deference does not apply to the federal court's adjudication of the claim. Id. at 948.
Review under § 2254(d) is limited to the record that was before the state court. Cullen v. Pinholster, 563 U.S. 170, 180-81 (2011). The question at this stage is whether the state court reasonably applied clearly established federal law to the facts before it. Id. In other words, the focus of the § 2254(d) inquiry is "on what a state court knew and did." Id. at 182.
Where the state court's adjudication is set forth in a reasoned opinion, § 2254(d)(1) review is confined to "the state court's actual reasoning" and "actual analysis." Frantz, 533 F.3d at 738 (emphasis in original). A different rule applies where the state court rejects claims summarily, without a reasoned opinion. In Richter, supra, the Supreme Court held that when a state court denies a claim on the merits but without a reasoned opinion, the federal habeas court must determine what arguments or theories may have supported the state court's decision, and subject those arguments or theories to § 2254(d) scrutiny. Richter, 562 U.S. at 101-102.
Relief is also available under AEDPA where the state court predicated its adjudication of a claim on an unreasonable factual determination. Section 2254(d)(2). The statute explicitly limits this inquiry to the evidence that was before the state court.
Even factual determinations that are generally accorded heightened deference, such as credibility findings, are subject to scrutiny for objective reasonableness under § 2254(d)(2). For example, in Miller El v. Dretke, 545 U.S. 231 (2005), the Supreme Court ordered habeas relief where the Texas court had based its denial of a Batson claim on a factual finding that the prosecutor's asserted race neutral reasons for striking African American jurors were true. Miller El, 545 U.S. at 240.
An unreasonable determination of facts exists where, among other circumstances, the state court made its findings according to a flawed process — for example, under an incorrect legal standard, or where necessary findings were not made at all, or where the state court failed to consider and weigh relevant evidence that was properly presented to it. See Taylor v. Maddox, 366 F.3d 992, 999 1001 (9th Cir.), cert. denied, 543 U.S. 1038 (2004). Moreover, if "a state court makes evidentiary findings without holding a hearing and giving petitioner an opportunity to present evidence, such findings clearly result in a `unreasonable determination' of the facts" within the meaning of § 2254(d)(2). Id. at 1001; accord Nunes v. Mueller, 350 F.3d 1045, 1055 (9th Cir. 2003) (state court's factual findings must be deemed unreasonable under section 2254(d)(2) because "state court . . . refused Nunes an evidentiary hearing" and findings consequently "were made without . . . a hearing"), cert. denied, 543 U.S. 1038 (2004); Killian v. Poole, 282 F.3d 1204, 1208 (9th Cir. 2002) ("state courts could not have made a proper determination" of facts because state courts "refused Killian an evidentiary hearing on the matter"), cert. denied, 537 U.S. 1179 (2003).
A state court factual conclusion can also be substantively unreasonable where it is not fairly supported by the evidence presented in the state proceeding. See, e.g., Wiggins, 539 U.S. at 528 (state court's "clear factual error" regarding contents of social service records constitutes unreasonable determination of fact); Green v. LaMarque, 532 F.3d 1028 (9th Cir. 2008) (state court's finding that the prosecutor's strike was not racially motivated was unreasonable in light of the record before that court); Bradley v. Duncan, 315 F.3d 1091, 1096 98 (9th Cir. 2002) (state court unreasonably found that evidence of police entrapment was insufficient to require an entrapment instruction), cert. denied, 540 U.S. 963 (2003).
To prevail in federal habeas proceedings, a petitioner must establish the applicability of one of the § 2254(d) exceptions and also must also affirmatively establish the constitutional invalidity of his custody under pre AEDPA standards. Frantz v. Hazey, 533 F.3d 724 (9th Cir. 2008) (en banc). There is no single prescribed order in which these two inquiries must be conducted. Id. at 736 37. The AEDPA does not require the federal habeas court to adopt any one methodology. Lockyer v. Andrade, 538 U.S. 63, 71 (2003).
In many cases, § 2254(d) analysis and direct merits evaluation will substantially overlap. Accordingly, "[a] holding on habeas review that a state court error meets the § 2254(d) standard will often simultaneously constitute a holding that the [substantive standard for habeas relief] is satisfied as well, so no second inquiry will be necessary." Frantz, 533 F.3d at 736. In such cases, relief may be granted without further proceedings. See, e.g., Goldyn v. Hayes, 444 F.3d 1062, 1070 71 (9th Cir. 2006) (finding § 2254(d)(1) unreasonableness in the state court's conclusion that the state had proved all elements of the crime, and granting petition); Lewis v. Lewis, 321 F.3d 824, 835 (9th Cir. 2003) (finding § 2254(d)(1) unreasonableness in the state court's failure to conduct a constitutionally sufficient inquiry into a defendant's jury selection challenge, and granting petition); Williams v. Ryan, 623 F.3d 1258 (9th Cir. 2010) (finding § 2254(d)(1) unreasonableness in the state court's refusal to consider drug addiction as a mitigating factor at capital sentencing, and granting penalty phase relief).
In other cases, a petitioner's entitlement to relief will turn on legal or factual questions beyond the scope of the § 2254(d) analysis. In such cases, the substantive claim(s) must be separately evaluated under a de novo standard. Frantz, 533 F.3d at 737. If the facts are in dispute or the existence of constitutional error depends on facts outside the existing record, an evidentiary hearing may be necessary. Id. at 745; see also Earp, 431 F.3d 1158 (remanding for evidentiary hearing after finding § 2254(d) satisfied).
Petitioner argues that the above referenced Instagram posts should not have been admitted into evidence at trial. First, he claims that the posts were not properly authenticated. Second, he claims that the posts amount to unreliable hearsay and their admission violated his due process rights under the Fourteenth Amendment. Both claims fail for the reasons stated hereafter.
The last reasoned decision belongs to the Court of Appeal which, on direct appeal, held that the Instagram postings were admissible. It explained its analysis as follows:
Admissibility of Instagram Posts
People v. Taylor, 2017 Cal. App. Unpub. LEXIS 3247, at *7-19 (Cal.App. 3 Dist., 2017).
The Supreme Court has held that a state evidentiary ruling does not give rise to a cognizable federal habeas claim unless the ruling violated a petitioner's due process right to a fair trial. Estelle v. McGuire, 502 U.S. 62, 67-68 (1991). In other words, "federal habeas corpus relief does not lie for errors of state law." Lewis v. Jeffers, 497 U.S. 764, 780 (1990). Additionally, a federal habeas court is bound by a state court's interpretation of state law. See Waddington v. Sarausad, 555 U.S. 179, 192 n.5 (2009) ("we have repeatedly held that it is not the province of a federal habeas court to reexamine state-court determinations on state-law questions") (citation and internal quotations omitted); Bradshaw v. Richey, 546 U.S. 74, 76 (2005) (per curiam) ("a state court's interpretation of state law, including one announced on direct appeal of the challenged conviction, binds a federal court sitting in habeas corpus") (citations omitted); Hicks v. Feiock, 485 U.S. 624, 629-30 (1988) ("We are not at liberty to depart from the state appellate court's resolution of these issues of state law. Although petitioner marshals a number of sources in support of the contention that the state appellate court misapplied state law on these two points, the California Supreme Court denied review of this case, and we are not free in this situation to overturn the state court's conclusions of state law.") (footnote omitted).
First, petitioner's claim that the trial court erred by admitting the Instagram without proper authentication sounds in state law and, consequently, does not afford a basis for federal habeas relief. See Johnson v. Sublett, 63 F.3d 926, 931 (9th Cir. 1995) (concluding that argument that admission of wooden clubs found at defendant's house was constitutional error due to lack of evidence linking clubs to crimes "presents state-law foundation and admissibility questions that raise no federal habeas issues"). And the state court which issued the last reasoned decision — the court of appeal — determined that "[t]he content contained in smackcityboy's Instagram account was a sufficient prima facie showing to justify the trial court's admission of the evidence." Taylor, 2017 Cal. App. Unpub. LEXIS 3247 at *16. As noted by the case law in the foregoing section, this court must defer to this determination of state law. See, e.g., Wainwright, 464 U.S. at 84.
Second, with regard to petitioner's unreliable hearsay due process claim, the Supreme Court has never held that the admission
The Instagram posts at issue here do not fall into any reasonable definition of "testimonial." They were posted well before the murder and obviously bore no formal qualities. There could be no reasonable expectation, at the time the posts were made, that the posts would be used in future judicial proceedings. See United States v. Saget, 377 F.3d 223, 228 (2d. Cir. 2004) ("[T]he types of statements cited by the Court as testimonial share certain characteristics; all involve a declarant's knowing responses to structured questioning in an investigative environment or a courtroom setting where the declarant would reasonably expect that his or her responses might be used in future judicial proceedings."). Thus, the court concludes that, even if the Instagram posts were unreliable hearsay, no clearly established federal law barred their admission.
And, to the extent that petitioner argues that the admission of this evidence violated his due process rights in some other way, the court is not persuaded. The erroneous admission of evidence in a state criminal trial gives rise to federal habeas relief only where the admission deprived the petitioner of his right to a fair trial. See Henry v. Kernan, 197 F.3d 1021, 1031 (9th Cir. 1999). Plaintiff appears to argue that the evidence of aiding and abetting against him was weak. ECF No. 1 at 10 ("the only evidence that connected Petitioner to this crime was the unauthenticated Instagram post from a social media account with the name of smackcityboy attached to it."). But, as the state court of appeal noted, that is a separate argument from whether the evidence was properly admitted. Taylor, 2017 Cal. App. Unpub. LEXIS 3247 at *17-18. What weight to assign the evidence was up to the jury. "Evidence introduced by the prosecution will often raise more than one inference, some permissible, some not." Jammal v. Van de Kamp, 926 F.2d 918, 920 (9th Cir.1991). In such cases, "we must rely on the jury to sort [the inferences] out in light of the court's instructions." Id. Admission of evidence violates due process "[o]nly if there are no permissible inferences the jury may draw" from it. Id. There were clearly permissible inferences the jury could draw from the Instagram posts — specifically a potential motive for petitioner's participation in Aranda's murder.
For all the reasons explained above, the state courts' denial of petitioner's claims was not objectively unreasonable within the meaning of 28 U.S.C. § 2254(d). Accordingly, IT IS HEREBY RECOMMENDED that the petition for writ of habeas corpus be denied.
These findings and recommendations are submitted to the United States District Judge assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(1). Within fourteen days after being served with these findings and recommendations, any party may file written objections with the court and serve a copy on all parties. Such a document should be captioned "Objections to Magistrate Judge's Findings and Recommendations." Any reply to the objections shall be served and filed within fourteen days after service of the objections. Failure to file objections within the specified time may waive the right to appeal the District Court's order. Turner v. Duncan, 158 F.3d 449, 455 (9th Cir. 1998); Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991). In his objections petitioner may address whether a certificate of appealability should issue in the event he files an appeal of the judgment in this case. See Rule 11, Rules Governing Section 2254 Cases (the district court must issue or deny a certificate of appealability when it enters a final order adverse to the applicant).
