SHEILA K. OBERTO, Magistrate Judge.
Petitioner, David Valenzuela Arzate, is a state prisoner proceeding pro se with a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254.
Petitioner was dating Kari Moncibaiz ("Kari") and was the father of her unborn child. Kari and her estranged husband, Joel Moncibaiz ("Joel"), were arguing in the parking lot of their place of employment.
A short time later, Kari drove back to the parking lot, followed by Petitioner in a separate car. Petitioner got out of the car and he and Joel immediately began fighting. During a lull in the fight, Kari approached Petitioner, lifted his shirt, and took a handgun out of his waistband. Kari returned to her car and Petitioner and Joel resumed fighting.
At some point during the fight, Petitioner broke away and went to Kari's car, entering the car on the passenger side. In the car, Petitioner and Kari struggled over the gun and Kari eventually threw the gun out of the car window. Petitioner exited the car and retrieved the gun.
Petitioner pointed the gun at Joel, who was 20 to 25 feet from him, and fired the gun. Joel turned and ran in a zig zag pattern away from Petitioner until he fell down, unharmed. In total, Petitioner fired the gun at Joel seven times.
After Petitioner stopped firing, Joel stood up and yelled at Petitioner. Kari left in her car, and Petitioner got into his car and left.
Petitioner was charged with four counts: count 1 — attempted premeditated murder (Cal. Penal Code §§ 664, 187); count 2 — assault with a firearm (Cal. Penal Code § 245(a)(2)); count 3 — participation in a street gang (Cal. Penal Code § 186.22(a)); and count 4 — possession of a firearm by a convicted felon (Cal. Penal Code § 12021(a)). The attempted premeditated murder and assault with a firearm offense were also alleged to have been committed for the benefit of, at the direction of, or in association with a criminal street gang ("criminal street gang enhancement"). (Cal. Penal Code §186.22(b)(1)).
On March 28, 2007, a jury found Petitioner guilty on all counts. However, the jury did not find the criminal street gang enhancement allegations to be true. Petitioner was sentenced to a prison term of 45 years to life, plus 26 years for firearm and prior-conviction enhancements, for a total operative sentence of 71 years to life on count 1. The court imposed and stayed a sentence on count 2, pursuant to California Penal Code § 654(a).
Petitioner filed a direct appeal, which was denied by the California Court of Appeal, Fifth Appellate District on April 2, 2009. The Court of Appeal affirmed the conviction, but corrected the sentence on count 1 to 25 years to life plus six years.
On December 11, 2009, Petitioner filed a petition for writ of habeas corpus with the District Court (the "2009 Petition"). Petition for Writ of Habeas corpus, Azarte v. Holland, No. 1:06-cv-02156-MSJ (E.D. Cal. Dec. 11, 2009), ECF No. 1. In his 2009 Petition for habeas relief, Petitioner raised seven claims: (1) insufficient evidence to convict Petitioner of active participation in a criminal street gang; (2) trial court improperly denied his objections to gang evidence; (3) trial court improperly allowed prejudicial and inflammatory evidence linking Petitioner to a planned 2004 killing and an attempt to shoot an expert witness; (4) trial court erred in admitting evidence connecting the Norteño street gang to the Mexican Mafia prison gang; (5) trial court failed to give a limiting instruction regarding gang evidence, and Petitioner's counsel was ineffective for failing to request the instruction; (6) trial court improperly denied Petitioner's request for a mistrial based on jury misconduct;
On November 26, 2012, Petitioner filed his Notice of Appeal with the Ninth Circuit Court of Appeals. On November 18, 2015, the Ninth Circuit dismissed Petitioner's appeal.
On April 10, 2014, the Attorney General of the State of California submitted a petition for writ of habeas corpus on Petitioner's behalf with the Superior Court of Stanislaus County. The Attorney General argued that Petitioner's custody "with respect to count 3[, participation in a street gang,] is unlawful and the [Attorney General] should not be compelled to unlawfully constrain [Petitioner]." (Lodged Doc. 1 at 1.) The Attorney General based this argument on a 2012 California Supreme Court opinion, which held that a defendant must act in concert with another in order to commit the crime of participation in a street gang. People v. Rodriguez, 55 Cal.4th 1125, 1132, 1138-39 (2012). Because Petitioner's conviction for participation in a street gang was based on his own conduct and not on conduct in concert with another person, the Attorney General argued Petitioner was factually innocent of the offense. (Lodged Doc. 1 at 2.)
On May 6, 2014, the Stanislaus County Superior Court "recalled" Petitioner's sentence imposed on count 3, vacated Petitioner's conviction pursuant to California Penal Code § 186.22(a), and issued a new judgment on the remaining counts. (Lodged Doc. 5.)
On August 14, 2015, Petitioner filed a new petition for writ of habeas corpus with this Court, seeking relief based on the new judgment.
A person in custody as a result of the judgment of a state court may secure relief through a petition for habeas corpus if the custody violates the Constitution or laws or treaties of the United States. 28 U.S.C. § 2254(a); Williams v. Taylor, 529 U.S. 362, 375 (2000). On April 24, 1996, Congress enacted the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"), which applies to all petitions for writ of habeas corpus filed thereafter. Lindh v. Murphy, 521 U.S. 320, 322-23 (1997). Under the statutory terms, the petition in this case is governed by AEDPA's provisions because it was filed after April 24, 1996.
Habeas corpus is neither a substitute for a direct appeal nor a device for federal review of the merits of a guilty verdict rendered in state court. Jackson v. Virginia, 443 U.S. 307, 332 n. 5 (1979) (Stevens, J., concurring) [hereinafter Viginia]. Habeas corpus relief is intended to address only "extreme malfunctions" in state criminal justice proceedings. Id. Under AEDPA, a petitioner can obtain habeas corpus relief only if he can show that the state court's adjudication of his claim:
28 U.S.C. § 2254(d); Lockyer v. Andrade, 538 U.S. 63, 70-71 (2003); Williams, 529 U.S. at 413.
"By its terms, § 2254(d) bars relitigation of any claim `adjudicated on the merits' in state court, subject only to the exceptions set forth in §§ 2254(d)(1) and (d)(2)." Harrington v. Richter, 562 U.S. 86, 98 (2011).
As a threshold matter, a federal court must first determine what constitutes "clearly established Federal law, as determined by the Supreme Court of the United States." Lockyer, 538 U.S.at 71. In doing so, the Court must look to the holdings, as opposed to the dicta, of the Supreme Court's decisions at the time of the relevant state-court decision. Id. The court must then consider whether the state court's decision was "contrary to, or involved an unreasonable application of, clearly established Federal law." Id. at 72. The state court need not have cited clearly established Supreme Court precedent; it is sufficient that neither the reasoning nor the result of the state court contradicts it. Early v. Packer, 537 U.S. 3, 8 (2002). The federal court must apply the presumption that state courts know and follow the law. Woodford v. Visciotti, 537 U.S. 19, 24 (2002). Petitioner has the burden of establishing that the decision of the state court is contrary to, or involved an unreasonable application of, United States Supreme Court precedent. Baylor v. Estelle, 94 F.3d 1321, 1325 (9th Cir. 1996).
"A federal habeas court may not issue the writ simply because the court concludes in its independent judgment that the relevant state-court decision applied clearly established federal law erroneously or incorrectly." Lockyer, 538 U.S. at 75-76. "A state court's determination that a claim lacks merit precludes federal habeas relief so long as `fairminded jurists could disagree' on the correctness of the state court's decision." Harrington, 562 U.S. at 101 (quoting Yarborough v. Alvarado, 541 U.S. 652, 664 (2004)). Thus, the AEDPA standard is difficult to satisfy since even a strong case for relief does not demonstrate that the state court's determination was unreasonable. Harrington, 562 U.S. at 102.
In his first ground for habeas review, Petitioner asserts his Due Process Rights were violated when the trial court admitted "highly prejudicial gang evidence." (Doc. 1 at 6.) Petitioner argues that the effect of this prejudicial evidence was exacerbated by the fact that the jury was not given a limiting instruction to only consider the gang evidence in connection with the gang charges. (Doc. 14 at 2.) Respondent counters that the admission of evidence is a matter of state law that is not cognizable on federal habeas review. (Doc. 12 at 7.)
Issues regarding the admission of evidence are matters of state law, generally outside the purview of a federal habeas court. Holley v. Yarborough, 568 F.3d 1091, 1101 (9th Cir. 2009). "The admission of evidence does not provide a basis for habeas relief unless it rendered the trial fundamentally unfair in violation of due process." Johnson v. Sublett, 63 F.3d 926, 930 (9th Cir. 1995). "[T]he Due Process Clause does not permit the federal courts to engage in a finely tuned review of the wisdom of state evidentiary rules." Marshall v. Lonberger, 459 U.S. 422, 438 n. 6 (1983). "Although the [U.S. Supreme] Court has been clear that a writ should be issued when constitutional errors have rendered the trial fundamentally unfair, see Williams, 529 U.S. at 375. . ., it has not yet made a clear ruling that admission of irrelevant or overtly prejudicial evidence constitutes a due process violation sufficient to warrant issuance of the writ." Holley, 568 F.3d at 1101.
Petitioner was charged, among other charges, with active participation in a criminal street gang (Cal. Penal Code § 186.22(a)), and enhancements alleging his commission of attempted premeditated murder and assault with a firearm offense were committed for the benefit of, at the direction of, or in association with a criminal street gang (Cal. Penal Code § 186.22(b)(1)). People v. Arzate (Cal. Ct. App. April 2, 2009) (No. F053074). On May 6, 2014, the Stanislaus County Superior Court vacated Petitioner's conviction for active participation in a criminal street gang and issued a new judgment. (Lodged Doc. 5.)
Petitioner then filed a petition for writ of habeas corpus with the Court of Appeal based on the new judgment issued by the Superior Court on May 6, 2014. On January 22, 2015, the Court of Appeal summarily denied the petition, citing to a California Supreme Court opinion, People v. Rios, 222 Cal.4th 542, 560-64 (2013). The Court in Rios analyzed California Penal Code § 186.22(b)(1),
Petitioner contends that presenting the gang evidence at trial was so prejudicial that it violated his constitutional rights. (Doc. 1 at 6.) Petitioner maintains the evidence was admitted only to "show [Petitioner] had a criminal disposition." (Doc. 14 at 3.)
"Evidence introduced by the prosecution will often raise more than one inference, some permissible, some not; we must rely on the jury to sort them out in light of the court's instructions." Jammal v. Van de Kemp, 926 F.2d 918, 920 (9th Cir. 1991). However, when there is no permissible inference the jury could draw from evidence, its admission violates due process. Id.
Here, Petitioner was charged with active participation in a criminal street gang, (Cal. Penal Code § 186.22(a)), and enhancements alleging his commission of attempted premeditated murder and assault with a firearm offense were committed for the benefit of, at the direction of, or in association with a criminal street gang (Cal. Penal Code § 186.22(b)(1)). The gang evidence was admitted to establish Petitioner's culpability for the murder and assault with a firearm offense based on his gang participation, which was impermissible. See Kennedy v. Lockyer, 379 F.3d 1041, 1055-56 (9th Cir. 2004) ("Evidence of gang membership may not be introduced . . . to prove intent or culpability.") (citing Mitchell v. Prunty, 107 F.3d 1337, 1342-43 (9th Cir. 1997) (holding that evidence of membership in a gang cannot serve as proof of intent, because, while someone may be an "evil person," that is not enough to make him guilty under California law)).
Although Petitioner's conviction for active participation in a criminal street gang was eventually overturned, the presentation of gang evidence was proper to prove the gang enhancement. As the Court of Appeal noted in its original opinion:
People v. Arzate (Cal. Ct. App. April 2, 2009) (No. F053074), at *8. The Court does not find the admission of the gang evidence violated Petitioner's Due Process Rights.
Petitioner additionally argues that the prejudicial effect of the gang evidence was exacerbated because the court did not give a limiting instruction as to how the jury should use the evidence. (Doc. 14 at 2.) However, a state trial court's instructional error alone does not raise a cognizable ground for federal habeas relief. Dunckhurst v. Deeds, 859 F.3d 110, 114 (9th Cir. 1988). To form the basis of a federal constitutional claim, the error must so infect the trial that the resulting conviction violates due process. Estelle, 502 U.S. at 72. Here, given the fact that the jury did not find the gang enhancement to be true, the Court cannot say that the evidence improperly influenced their verdict. See Park v. California, 202 F.3d 1146, 1150 (9th Cir. 2000) ("We have held that the failure of the jury to convict on all counts is the best evidence of the jury's ability to compartmentalize the evidence.") (internal quotation marks and citations omitted). Therefore, the Court will deny Petitioner's claim that the admission of gang evidence violated his Due Process Rights.
Further, even if the Court found that Petitioner's Due Process Rights had been violated, no clearly established Federal law applies to permit a grant of federal habeas relief for the admission of evidence that is considered prejudicial. Holley, 568 F.3d at 1101 (The Supreme Court has not determined whether the admission of irrelevant or prejudicial evidence constitutes a due process violation.). Consequently, the Court will deny relief on Petitioner's claim that gang evidence was improperly admitted at trial.
In his second ground for habeas relief, Petitioner contends that the trial court erred by failing to declare a mistrial or holding a hearing on juror bias. (Doc. 1 at 8.) Respondent counters that this claim was raised in the 2009 Petition and the Court need not revisit the issue, because the claim was properly rejected on the merits. (Doc. 12 at 11.)
In his 2009 Petition, Petitioner argued that the trial court erred in failing to declare a mistrial due to juror bias. Arzate v. Holland, 2012 WL 5386578. The District Court described Petitioner's argument and the state court opinion:
The last reasoned state court decision is from the California Court of Appeal, Fifth Appellate District Court's decision confirming Petitioner's conviction. The court explained:
Id. at *16-19.
Addressing the trial court's failure to declare a mistrial based on juror bias from the 2009 Petition, the District Court noted:
Id. at *19-20.
In sum, the District Court dismissed Petitioner's claim in the 2009 Petition that the trial court erred by failing to declare a mistrial due to juror bias because the state court's decision was not an objectively unreasonable application of Supreme Court precedent. Id.
The issue of whether the trial court erred in failing to declare a mistrial based on juror bias was decided with the denial of the 2009 Petition. See Id. Generally, a petitioner may not make a claim in a second or successive habeas petition that was presented in a prior application. 28 U.S.C. § 2244(b)(1). However, in this case, a new judgment was entered in state court after the 2009 Petition was denied. The Supreme Court has held "where . . . there is a `new judgment intervening between [ ] two habeas petitions,' . . . an application challenging the resulting new judgment is not `second or successive' at all." Magwood v. Patterson, 561 U.S. 320, 340 n. 15 (2010) (quoting Burton v. Stewart, 549 U.S. 147, 156 (2007)).
The Supreme Court has not directly decided whether a new judgment allows a petitioner to re-raise a claim rejected on the merits in a previous federal petition. Instead, the Court has noted "[i]t will not take a court long to dispose of such claims where the court has already analyzed the legal issues." Magwood v. Patterson, 561 U.S. 320, 340 n. 15 (2010).
In this case, a new judgment was entered in state court, but Petitioner is simply re-raising a claim that was rejected on the merits in the 2009 Petition. The new state court judgment did not alter the legal or factual basis upon which the District Court's analysis of this claim rests. Accordingly, this Court will deny Petitioner's juror bias claim. As thoroughly analyzed and expounded upon in the order denying the 2009 Petition, the Court of Appeal's finding that Petitioner's constitutional rights were not violated when the trial court denied Petitioner's motion for mistrial, was not objectively unreasonable. Consequently, the Court will deny Petitioner's claim that the trial court erred in failing to declare a mistrial due to juror bias.
A petitioner seeking a writ of habeas corpus has no absolute entitlement to appeal a district court's denial of his petition, but may only appeal in certain circumstances. Miller-El v. Cockrell, 537 U.S. 322, 335-36 (2003). The controlling statute in determining whether to issue a certificate of appealability is 28 U.S.C. § 2253, which provides:
If a court denies a habeas petition, the court may only issue a certificate of appealability "if jurists of reason could disagree with the district court's resolution of his constitutional claims or that jurists could conclude the issues presented are adequate to deserve encouragement to proceed further." Miller-El, 537 U.S. at 327; Slack v. McDaniel, 529 U.S. 473, 484 (2000). Although the petitioner is not required to prove the merits of his case, he must demonstrate "something more than the absence of frivolity or the existence of mere good faith on his. . . part." Miller-El, 537 U.S. at 338.
Reasonable jurists would not find the Court's determination that Petitioner is not entitled to federal habeas corpus relief debatable, wrong, or deserving of encouragement to proceed further. Accordingly, the Court declines to issue a certificate of appealability.
Based on the foregoing, the Court hereby DENIES with prejudice the petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254 and declines to issue a certificate of appealability. The Clerk of the Court is directed to enter judgment for the Respondent.
People v. Arzate (Cal. Ct. App. April 2, 2009) (No. F053074), at *14.
