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. On May 12, 2014, he was convicted in the Placer County Superior Court of: (1) two counts of attempted first degree residential burglary (Pen. Code, § 459); (2) unlawful taking of a vehicle (Cal. Veh. Code §10851(a)); (3) evading an officer (Cal. Veh. Code § 2800.2);
In the early morning hours of November 15, 2011, Alice Hernandez heard the back door of her house close. She initially thought her husband, Atancio, had left the residence, but he remained in bed. Ms. Hernandez discovered the back door unlocked and promptly locked it.
Later that morning, a police officer knocked on the Hernandezes' front door, inquired whether they were victims of a burglary, and asked the couple to check whether any belongings were missing. Alice Hernandez discovered that her purse — in which she kept her credit cards, driver's license, and automobile insurance card — was missing. Atancio found that his wallet was missing.
At about 1:30 a.m. on November 15, 2011, Andrew Larsen woke to the sound of his pickup truck motor starting. He peered out his front window and witnessed someone driving away in the truck. Larsen borrowed a roommate's vehicle and gave chase while simultaneously contacting the Roseville Police Department. Soon, the stolen pickup was being pursued by police units. The chase proceeded, sometimes at high speeds, into Citrus Heights. There, the pickup collided with part of a telephone pole. The thief — whom a Roseville Police detective described as dressed in a black sweatshirt with a white logo, black pants with a red marking, and a black beanie — opened the driver's door and fled the scene.
Pursued on foot by police, the thief fled into a nearby backyard. Police set a perimeter and a canine soon located petitioner hiding in the bushes in front of a nearby residence. A pair of gloves and a black beanie were also found in the bushes. Petitioner's clothing matched the description of the pickup truck thief. A search of his person uncovered a cell phone, a screwdriver, and a small metallic container which contained a "AAA" insurance card issued to Alice Hernandez.
Later that morning, a resident who lived near the location where petitioner was apprehended found a black backpack near her garbage cans. She reported the find to the police, and a search of the backpack revealed Atancio Hernandez's wallet, Alice Hernandez's purse, and a flashlight.
Petitioner argued that he was a long-time drug addict who, due to his financial struggles, had started dealing drugs. On the night of November 14, 2011, petitioner's wife drove him to Roseville between eleven and midnight. Petitioner stated that he met a number of unnamed individuals in a 7-11 parking lot for a drug transaction. He gave these individuals a gram of heroin and, in exchange, received a purse, a wallet, a black backpack, a metallic cardholder, and a flashlight from the trunk of their car.
With respect to the truck, petitioner testified that he had previously completed a drug deal with Andrew Larsen. He stated that Larsen had provided him with keys to the pickup truck as collateral in the deal. After the deal in the 7-11 parking lot, petitioner went to retrieve the truck.
Petitioner was convicted of: (1) two counts of attempted first degree residential burglary (Pen. Code, § 459); (2) unlawful taking of a vehicle (Cal. Veh. Code §10851(a)); (3) evading an officer (Cal. Veh. Code §2800.2); and (4) misdemeanor resisting a peace officer (Pen. Code § 148). Petitioner was also alleged to have prior convictions: (1) two "strike" priors, within the meaning of § 667(b) — (i) and 1170.12 (a) — (d); (2) two serious felony priors within the meaning of § 667(a)(1); and (3) five prior prison terms within the meaning of § 667.5(b). While the jury was deliberating, petitioner waived his right to a jury trial on the prior conviction allegations. As noted above, the jury found petitioner guilty as charged, and the court found true the prior conviction allegations.
On direct appeal, the court of appeal stayed petitioner's sentence for resisting an officer and struck a one-year prior prison term enhancement after finding that both the prison term enhancement and a prior serious felony conviction enhancement were based on the same burglary conviction. It affirmed the judgment against petitioner in all other respects.
Petitioner sought review from the California Supreme Court. That court issued a summary denial of his claims.
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 there was insufficient evidence to support his burglary conviction.
Petitioner presented this claim on direct appeal and it was denied on the merits by the Court of Appeal in a reasoned decision. Lodg. Docs. 1 & 2. It was then presented to the California Supreme Court, which summarily denied it. Lodg. Docs. 3 & 4. The last reasoned decision belongs to the Court of Appeal which held:
People v. McCorkle, 2015 WL 5681894, at *5-6 (Cal.App. 3 Dist., 2015) (Lodg. Doc. 2).
Due process requires that each essential element of a criminal offense be proven beyond a reasonable doubt. United States v. Winship, 397 U.S. 358, 364 (1970). In reviewing the sufficiency of evidence to support a conviction, the question is "whether, viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt." Jackson v. Virginia, 443 U.S. 307, 319 (1974). If the evidence supports conflicting inferences, the reviewing court must presume "that the trier of fact resolved any such conflicts in favor of the prosecution," and the court must "defer to that resolution." Id. at 326. A jury's credibility determination is not subject to review during post-conviction proceedings. Schlup v. Delo, 513 U.S. 298, 330 (1995) ("under Jackson, the assessment of the credibility of witnesses is generally beyond the scope of review."). The federal habeas court determines the sufficiency of the evidence in reference to the substantive elements of the criminal offense as defined by state law. Jackson, 443 U.S. at 324 n.16.
The court of appeal's determination that sufficient evidence supported the burglary conviction was not unreasonable. At trial, one of the officers who pursued the stolen pickup truck identified petitioner as the driver. Reporter's Transcript, Vol. I, at 72-73. The officer also testified that, when petitioner was apprehended, he was in possession of a screw driver and a metal container wherein Alice Hernandez's insurance card was found. Id. at 77. Testimony was offered that a screw driver can be a burglary tool used to defeat locks or break open windows. Id. at 85. Finally, a backpack containing other stolen items was found near the location where petitioner was apprehended. Id. at 182-84, 222-24.
Respondent argues that the crux of this claim is petitioner's contention that his burglary conviction must be based on more than proof that he possessed stolen property. There is, however, no clearly established federal law specifically requiring this heightened level of proof in such cases. To the contrary, the Supreme Court has held "if property recently stolen be found in the possession of a certain person, it may be presumed that he stole it, and such presumption is sufficient to authorize the jury to convict, notwithstanding the presumption of his innocence." Dunlop v. United States, 165 U.S. 486, 502 (1897). Moreover, the jurors in this case were instructed pursuant to CALCRIM No. 376 that:
Clerk's Transcript on Appeal, Vol. I, at 177-78. Jurors are presumed, absent evidence to the contrary, to follow their instructions. Richardson v. Marsh, 481 U.S. 200, 211 (1987). And there was, as the court of appeal found, sufficient corroborating evidence to convict. For example: (1) petitioner led police on a high-speed chase; (2) he fled from the crashed truck and was found in bushes wearing dark clothing; and (3) he was carrying a screwdriver which could be used as a burglary tool. Thus, this claim fails.
Petitioner argues that the trial court erred in instructing the jury under CALCRIM No. 376 (the language of which is represented in the foregoing section). Specifically, he claims that this instruction "allowed the jury to cross-reference evidence from count two, vehicle theft, to count one, residential burglary." ECF No. 21 at 4.
The court of appeal denied this claim on direct appeal:
McCorkle, 2015 WL 5681894, at *6 (Lodg. Doc. 2).
Jury instructions are generally matters of state law and, as such, federal courts are bound by a state appellate court's determination that a particular instruction was warranted under state law. See Bradshaw v. Richey, 546 U.S. 74, 76 (2005) ("We have repeatedly held that 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."). In order to warrant federal habeas relief, a challenged jury instruction "cannot be merely undesirable, erroneous, or even universally condemned, but must violate some due process right guaranteed by the fourteenth amendment." Cupp v. Naughten, 414 U.S. 141, 146 (1973) (internal quotations omitted). A challenge to a trial court's jury instructions is reviewed under the standards in Brecht v. Abrahamson, 507 U.S. 619, 637 (1993) — that is, whether the error had a "substantial and injurious effect in determining the jury's verdict." See California v. Roy, 519 U.S. 2, 5 (1996).
The court of appeal's rejection of this claim was not unreasonable. As it noted, the jury was instructed that "[e]ach of the counts charged in this case is a separate crime. You must consider each count separately and return a separate verdict for each one." Clerk's Transcript on Appeal, Vol. I, at 183. Moreover, CALCRIM No. 376 warns jurors not to infer guilt based solely on a defendant's knowing possession of stolen goods. Id. at 177-78. And, again, juries are presumed to follow their instructions. Marsh, 481 U.S. at 211. There is no record evidence that the jury ignored the trial court's instructions and concluded that possession of Larsen's truck was sufficient to prove that petitioner burglarized the Hernandez residence. This claim should also be denied.
Finally, petitioner argues that the trial court abused its discretion in denying his Romero motion and refusing to strike one or more of his prior strike convictions.
The court of appeal denied this claim on direct appeal:
McCorkle, 2015 WL 5681894, at *6-8 (Lodg. Doc. 2).
"In conducting habeas review, a federal court is limited to deciding whether a conviction violated the Constitution, laws, or treaties of the United States." Estelle v. McGuire, 502 U.S. 62, 67-68 (1991)(internal citations omitted). And, generally, a challenge to a state court's application of state sentencing laws does not give rise to a federal question cognizable on federal habeas review. See Lewis v. Jeffers, 497 U.S. 764, 780 (1990). To assert a cognizable federal habeas claim based on a state court sentencing error, a habeas petitioner must demonstrate that the sentencing error was "so arbitrary or capricious as to constitute an independent due process or Eighth Amendment violation." Richmond v. Lewis, 506 U.S. 40, 50 (1992).
This claim must be rejected because this court must defer to the state court of appeal's interpretation of state law. See Bradshaw, 546 U.S. at 76 ("We have repeatedly held that 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."). Here, the state court held that there was no abuse of discretion in the trial court's denial of petitioner's Romero motion. The absence of a state law error necessarily precludes an analysis of whether such error was "arbitrary or capricious." Finally, petitioner may not attack the denial of his Romero motion in a federal habeas petition simply by stating that the denial violated his federal due process rights. See Langford v. Day, 110 F.3d 1380, 1389 (9th Cir. 1996)(a petitioner "may not . . . transform a state-law issue into a federal one merely by asserting a violation of due process").
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)(l). 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).
