JEREMY D. PETERSON, Magistrate Judge.
Sergio Solis Gonzalez, a state prisoner proceeding without counsel, seeks a writ of habeas corpus under 28 U.S.C. § 2254. Petitioner raises three claims for habeas relief: (1) the government used peremptory challenges to exclude two prospective jurors because of their race; (2) petitioner received ineffective assistance of counsel; and (3) petitioner was convicted on insufficient evidence. For the reasons discussed below, we recommend that the court deny the habeas petition.
This is a child molestation case. On November 19, 2009, the government charged petitioner by information with two counts of lewd conduct upon a child under the age of 14. CT 1:104-05; California Penal Code § 288(a).
The following facts are drawn from the opinion of the Court of Appeal of the State of California, Fifth Appellate District (the "Court of Appeal"), and a presumption of correctness applies to them. See 28 U.S.C. § 2254(e)(1); Crittenden v. Chappell, 804 F.3d 998, 1010-11 (9th Cir. 2015); ECF No. 14-1. An independent review of the record, see Nasby v. McDaniel, 853 F.3d 1049, 1054-55 (9th Cir. 2017), warrants the adoption of the following facts as a fair and accurate summary of the evidence. All alterations come from the Court of Appeal's opinion.
ECF No. 1 at 14-1 at 3-8; see also RT 5: 1089-1157 (Mariah's testimony).
A federal court may grant habeas relief when a petitioner shows that his custody violates federal law. See 28 U.S.C. §§ 2241(a), (c)(3), 2254(a); Williams v. Taylor, 529 U.S. 362, 374-75 (2000). Section 2254 of Title 28, as amended by the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"), governs a state prisoner's habeas petition. See § 2254; Harrington v. Richter, 562 U.S. 86, 97 (2011); Woodford v. Garceau, 538 U.S. 202, 206-08 (2003). To decide a § 2254 petition, a federal court examines the decision of the last state court that issued a reasoned opinion on petitioner's habeas claims. See Wilson v. Sellers, 138 S.Ct. 1188, 1192 (2018). The standard that governs our review of the state court's decision depends on whether the state court adjudicated petitioner's claims on the merits.
When a state court has adjudicated a petitioner's claims on the merits, a federal court reviews the state court's decision under the deferential standard of Section 2254(d). Section 2254(d) precludes a federal court from granting habeas relief unless a state court's decision is (1) contrary to clearly established federal law, (2) a result of an unreasonable application of such law, or (3) based on an unreasonable determination of facts. See § 2254(d); Murray v. Schriro, 882 F.3d 778, 801 (9th Cir. 2018). A state court's decision is contrary to clearly established federal law if it reaches a conclusion "opposite to" a holding of the United States Supreme Court or a conclusion that differs from the Supreme Court's precedent on "materially indistinguishable facts." Soto v. Ryan, 760 F.3d 947, 957 (9th Cir. 2014) (citation omitted). The state court's decision unreasonably applies clearly established federal law when the decision has "no reasonable basis." Cullen v. Pinholster, 563 U.S. 170, 188 (2011). An unreasonable determination of facts occurs when a federal court is "convinced that an appellate panel, applying the normal standards of appellate review, could not reasonably conclude that the finding is supported by the record." Loher v. Thomas, 825 F.3d 1103, 1112 (9th Cir. 2016). A federal habeas court has an obligation to consider arguments or theories that "could have supported a state court's decision." See Sexton v. Beaudreaux, 138 S.Ct. 2555, 2557 (2018) (quoting Richter, 562 U.S. at 102). In addition, one rule applies to all state prisoners' petitions adjudicated on the merits: The petitioner must show that the state court's decision is "so lacking in justification that there was an error well understood and comprehended in existing law beyond any possibility for fairminded disagreement." Richter, 562 U.S. at 103.
Even when a state court does not explicitly address a petitioner's claims on the merits, a Section 2254 petitioner still must satisfy a demanding standard to obtain habeas relief. When a state court gives no reason for denying a petitioner's habeas claim, a rebuttable presumption arises that the state court adjudicated the claim on the merits under Section 2254(d). See Richter, 562 U.S. at 99. And a federal habeas court's obligation to consider arguments or theories that could support a state court's decision extends to state-court decisions that offer no reasoning at all. See Sexton, 138 S. Ct. at 2557.
If a state court denies a petitioner's habeas claim solely on a procedural ground, then Section 2254(d)'s deferential standard does not apply. See Visciotti v. Martel, 862 F.3d 749, 760 (9th Cir. 2016). However, if the state court's decision relies on a state procedural rule that is "firmly established and regularly followed," the petitioner has procedurally defaulted on his claim and cannot pursue habeas relief in federal court unless he shows that the federal court should excuse his procedural default. See Johnson v. Lee, 136 S.Ct. 1802, 1804 (2016); accord Runningeagle v. Ryan, 825 F.3d 970, 978-79 (9th Cir. 2016). If the petitioner has not pursued his habeas claim in state court at all, the claim is subject to dismissal for failure to exhaust state-court remedies. See Murray v. Schriro, 882 F.3d 778, 807 (9th Cir. 2018).
If obtaining habeas relief under Section 2254 is difficult, "that is because it was meant to be." Richter, 562 U.S. at 102. As the Supreme Court has put it, federal habeas review "disturbs the State's significant interest in repose for concluded litigation, denies society the right to punish some admitted offenders, and intrudes on state sovereignty to a degree matched by few exercises of federal judicial authority." Id. at 103 (citation omitted). Our habeas review authority serves as a "guard against extreme malfunctions in the state criminal justice systems, not a substitute for ordinary error correction through appeal." Id. at 102-03 (emphasis added).
The prosecutor in petitioner's case used peremptory challenges to exclude two prospective jurors who had Spanish surnames, V.R. and M.G.
Purposeful racial discrimination in jury selection denies the equal protection guaranteed by the Fourteenth Amendment, and a criminal defendant can challenge a racially-motivated peremptory challenge through what is now known as a Batson challenge. See Batson v. Kentucky, 476 U.S. 79, 84 (1986); United States v. Mikhel, 889 F.3d 1003, 1028 (9th Cir. 2018). A court assesses a Batson challenge in three steps. See Mikhel, 889 F.3d at 1028. First, a criminal defendant must show a prima facie case that the government used a peremptory challenge because of a prospective juror's race. See id. Second, if the defendant carries that initial burden, the burden shifts to the government to offer a race-neutral reason for excluding the prospective juror in question. See id. Third, the court decides whether the defendant has shown purposeful racial discrimination. See id. The defendant bears the ultimate burden of persuasion to show purposeful racial discrimination. See Sifuentes v. Brazelton, 825 F.3d 506, 515 (9th Cir. 2016).
Here, we assume, without deciding, that petitioner has carried his initial burden of showing a prima facie case that the prosecutor in his case used peremptory challenges to exclude V.R. and M.G. because of their race.
Finding purposeful racial discrimination at the third step of the Batson analysis requires the court to evaluate the prosecutor's credibility. See Sifuentes, 825 F.3d at 515. The court must consider whether the prosecutor's stated reasons for excluding the juror are genuine and not pretexts designed to hide purposeful discrimination. See Mikhel, 889 F.3d at 1029. An inference of pretext may arise when the reasons are implausible, not supported by the record, or fantastic. See Sifuentes, 825 F.3d at 516. The court will also consider "subtle impressions" that the court has observed and other intangible factors to assess the prosecutor's credibility. Sifuentes, 825 F.3d at 515.
One way to show pretext is through a comparison of excluded and non-excluded jurors. For example, if the stated reasons for excluding an African American juror apply equally to a Caucasian juror, the prosecutor's choice not to exclude the Caucasian juror makes purposeful discrimination more likely. See id. at 515-16. On the other hand, if a different treatment of jurors resulted from an honest mistake, the prosecutor might yet be credible. See Aleman v. Uribe, 723 F.3d 976, 982 (9th Cir. 2013). The prosecutor need only provide reasons that "should be believed," and those reasons need not show "sound strategic judgment." Id. The prosecutor's credibility is a "pure issue of fact." Sifuentes, 825 F.3d at 515.
In a habeas case, we are particularly reluctant to overturn a credibility determination affirmed by a state appellate court. On direct appeal, an appellate court will affirm a trial court's credibility determination "unless it is clearly erroneous," meaning that the trial court's decision must leave the appellate court with a "definite and firm conviction that a mistake has been committed." Id. On habeas review, a federal court "may not second-guess a state court's fact-finding process unless, after review of the state-court record, it determines that the state court was not merely wrong, but actually unreasonable." Id. at 517. Considering these deferential standards together results in a "doubly deferential" standard: "unless the state appellate court was objectively unreasonable in concluding that a trial court's credibility determination was supported by substantial evidence, we must uphold it." Id. at 518. The record must "compel" the rejection of the prosecutor's race-neutral reasons and leave "no permissible alternative"—not one. See Rice v. Collins, 546 U.S. 333, 341 (2006).
Here, petitioner contends that the prosecutor's stated reasons for excluding V.R. and M.G.—that V.R. had served in a as a juror in a criminal proceeding that resulted in acquittal and that M.G. had an older brother in prison—were pretextual. Petitioner relies on what he describes as evidence of pretext: (1) V.R. could not recall whether the case in which she served as a juror was a civil or criminal case; (2) although V.R. stated that the prior case resulted in a verdict of not guilty, V.R., who was not a lawyer, could have meant by this that her prior jury had found a civil defendant not liable; (3) the prosecutor did not inquire V.R. about her prior juror experience; (4) the prosecutor did not exclude another juror, V.F., who petitioner argues was similar to V.R. and who had served as a juror in a criminal case that resulted in acquittal but did not have a Spanish surname; (5) M.G. was not close to her older brother because she stated that she did not associate with him or visit him in prison; (6) the prosecutor did not ask M.G. whether she could be impartial despite having a brother in prison; (7) the prosecutor did not exclude juror E.S., who petitioner argues was similar to M.G. and who had been the subject of a criminal investigation but who did not have a Spanish surname. See ECF No. 1 at 16-24.
In light of the evidence in the record, petitioner's arguments do not provide us with a basis for overturning the state court's credibility determination; the record supports the finding that the prosecutor did not exclude V.R. or M.G. because of race. When petitioner's counsel sought to exclude M.L., a prospective juror with a Spanish surname, the prosecutor opposed the exclusion of M.L. Aug. RT of October 17, 2009 at 276-78. When petitioner made Batson challenges for V.R. and M.G., at least one juror with a Spanish surname remained on the panel, and the prosecutor still had peremptory challenges he could have used to exclude that juror. Aug. RT of Oct. 17, 2009 at 285, 287-88. Although V.R. could not recall whether she had served as a juror in a criminal or civil case, she recalled that the jury returned the verdict of not guilty, which supported an inference that V.R. had served as a juror in a criminal case.
In sum, the record is inconclusive at best, and a reasonable jurist could find that the prosecutor excluded V.R. and M.G. because they might return a not-guilty verdict, not because of their race. Petitioner has not satisfied the stringent requirement under Section 2254, so the court cannot grant him habeas relief.
Petitioner contends that he received ineffective assistance of counsel in violation of the Sixth Amendment because his trial counsel (1) failed to argue that the Mariah was touched by an accidentally and (2) allowed petitioner to be sentenced to 15 years to life in prison. Petitioner raised these arguments in his habeas petition filed before the California Supreme Court, and the California Supreme Court summarily denied the habeas petition. In this habeas proceeding, petitioner repeats the same arguments.
A "doubly" deferential standard governs a federal habeas petitioner's claim of ineffective assistance of counsel. See id. at 105. On direct appeal, the two-step inquiry from Strickland v. Washington guides the analysis for an ineffective-assistance-of-counsel claim. See 466 U.S. 668, 687 (1984). First, a criminal defendant must show some deficiency in performance by counsel that is "so serious that counsel was not functioning as the counsel guaranteed the defendant by the Sixth Amendment." Id. Second, the defendant must show that the deficient performance caused him prejudice; this requires him to show "that counsel's errors were so serious as to deprive [the petitioner] of a fair trial." Id. On habeas review, coupled with Section 2254(d)'s fairminded-jurist standard, the Strickland requirements become even more deferential: The question is "whether there is any reasonable argument that counsel satisfied Strickland's deferential standard." Richter, 562 U.S. at 105 (emphasis added). That is, if there is even one reasonable argument that counsel did not violate the Strickland standard—even if the state court has not identified the argument—then the petitioner cannot obtain habeas relief. See id. at 106.
Here, petitioner has failed to satisfy the daunting Strickland requirements on habeas review. Neither of the two alleged errors—failure to argue that the touching of Mariah was accidental and allowing the sentence of 15 years to life—satisfies the first prong of Strickland, deficient performance.
Petitioner contends that his trial counsel should have argued that the touching was "accidental," relying on Mariah's interview in which she referred to the touching as accidental. ECF No. 1 at 36. Petitioner argues that accidental touching would have defeated the mens rea requirement of the charged offense, lewd act upon a child under the age of 14, because that offense required the government show that petitioner "willfully and lewdly" committed the act with the "intent of arousing, appealing to, or gratifying the lust, passions, or sexual desires." See Cal. Penal Code § 288(a)(1).
Although Mariah, a child, said during her interview that a man had "accidentally" touched her, a video recording of the interview provides a basis to conclude that the touching was far from accidental.
ECF No. 15, Ex. 24 at 12:20-15:43 (interview video) (emphasis added); see also CT 2:342-345 (interview transcript). The video shows Mariah demonstrating how the man touched her, pointing her hand toward her genital area. ECF No. 15, Ex. 24 at 13:05-30. Mariah also testified in court that the man had touched her vagina underneath her underwear with the middle finger of his right hand and demonstrated in court how the touching occurred. RT 5:1092-95. Considering the evidence, a reasonable attorney could have concluded that it would not be in petitioner's best interests to advance the argument that defendant had touched Mariah accidentally. Petitioner's counsel was not seriously deficient for not arguing that the touching was an accident.
Petitioner contends that his trial counsel was deficient because the attorney allowed petitioner to be sentenced to 15 years to life in prison. Again, petitioner has not shown deficient performance.
Section 667.61(b) of California Penal Code, a part of California's One Strike Law, imposes a sentence of 15 years to life for an offense listed under subdivision (c) committed under one of the circumstances listed under subdivision (e). See Cal. Penal Code § 667.61(b); People v. Valdez, 193 Cal.App.4th 1515, 1521-24 (2011).
Here, petitioner was charged by information with two counts of lewd or lascivious acts upon a child under the age of 14, with multiple victims. CT 1:104-05. The jury returned a guilty verdict on both counts and a separate verdict finding the presence of the multiple-victim circumstance under Subdivision (e). CT 2:455-47. Petitioner received the mandatory sentence for each count, to be served concurrently, CT 2:494-95, even though the sentencing report recommended consecutive terms, CT 2:497. Petitioner does not explain how his trial counsel could have helped him further. Petitioner's counsel was not seriously deficient for allowing petitioner to be sentenced to 15 years to life.
Petitioner states in passing that he would like an evidentiary hearing "to address (1) ineffective assistance of counsel; (2) whether the court violated appellant's Fifth, Sixth, and Fourteenth Amendment; and (3) whether the court violated appellant's right to counsel." ECF No. 1 at 38. Petitioner does not explain why he would be entitled to an evidentiary hearing.
A state prisoner seeking an evidentiary hearing must show that he "was not at fault in failing to develop that evidence in state court, or (if he was at fault) if the conditions prescribed by § 2254(e)(2) were met." Holland v. Jackson, 542 U.S. 649, 652-53 (2004). Under § 2254(e)(2), the petitioner must show either a new, retroactive rule of constitutional law that was unavailable to him or a fact that he could not have discovered through the exercise of due diligence. 28 U.S.C. § 2254(e)(2)(A)(ii). When the petitioner fails to carry this burden, the court may not hold an evidentiary hearing. Id. § 2254(e)(2).
Here, petitioner does not argue that he was without fault in failing to develop the record. He does not identify a new, retroactive rule of constitutional law that was unavailable to him. He also does not identify any fact that he could not have discovered through due diligence. The court therefore cannot hold an evidentiary hearing.
Petitioner contends that his due process rights under the Fourteenth Amendment have been violated because he was found guilty of count one despite insufficient evidence. In support of his claim, he argues that there was insufficient evidence that: (1) the touching was intentional; and (2) petitioner was the man who touched Mariah. The Court of Appeal rejected petitioner's arguments on the merits, finding that substantial evidence supported the jury's guilty verdict.
A habeas petitioner challenging the sufficiency of evidence must overcome "two layers of judicial deference." Coleman v. Johnson, 566 U.S. 650, 651 (2012). Under Jackson v. Virginia, the appellate court on direct appeal decides "whether, after 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." 443 U.S. 307, 319 (1979) (emphasis in original). On habeas review, "a federal court may not overturn a state court decision rejecting a sufficiency of the evidence challenge simply because the federal court disagrees with the state court. The federal court instead may do so only if the state court decision was objectively unreasonable." Maquiz v. Hedgpeth, 907 F.3d 1212, 1225 (9th Cir. 2018) (quoting Coleman, 566 U.S. at 651). Combining the Jackson and Section 2254 deference, petitioner must show that "no fairminded jurist could conclude that any rational trier of fact could have found sufficient evidence to support the conviction." Id. (emphasis in original).
Petitioner's first argument warrants little discussion. As discussed above, Mariah said during her interview that a man accidentally touched her, but the video recording of Mariah's interview supports a different interpretation. The jury saw the video recording of the interview, which included Mariah's demonstration of how the man touched her. ECF No. 14-1 at 5 n.7; ECF No. 15, Ex. 24 at 12:20-15:43. A fairminded jurist could find that the video recording shows that the man willfully and lewdly touched Mariah with the intent of gratifying his sexual desires.
Petitioner next contends that there was insufficient evidence that he was the man who touched Mariah. Petitioner argues that Mariah's identification of petitioner as the perpetrator was unreliable for numerous reasons. According to petitioner:
See ECF No. 1 at 25-33. Despite petitioner's contentions, a reasonable jurist could find sufficient evidence to conclude that petitioner was the man who touched Mariah. Mariah's inaccurate recollections of where or when the crime occurred did not warrant setting aside the jury verdict. A reasonable juror could conclude that the inaccurate recollections resulted from Mariah's age and her experience visiting multiple rides at the Fresno Fair. Mariah testified that both the Little Cricket Express and the Wacky Worm looked like rollercoasters to her. RT 5:1116. Detective Lopez testified that Mariah's various descriptions of the ride were combinations of different rides and were inconsistent with either the Little Cricket Express or the Wacky Worm. RT 7:1794 ("[T]here were bits and pieces of the rides, but they were of different rides."). In any event, victims "often confuse the details of particular incidents," see Ren v. Holder, 648 F.3d 1079, 1085-86 (9th Cir. 2011), and a witness's account of when an event occurred is a "poor test" of credibility, see id. at 1086. Despite the inaccurate recollections as to where or when the crime took place, what mattered was who molested Mariah. Mariah identified petitioner as the perpetrator in a photo lineup within 15 seconds, and that prompt identification provides sufficient basis for the jury's verdict.
Petitioner's ninth and tenth arguments, noted above, challenge Mariah's identification during the photo lineup, but those arguments lack merit. As for the ninth argument, comments by Detective Lopez and Mariah's mother that Mariah was "correct" and "did a great job" were uttered only after Mariah's prompt identification of petitioner as the perpetrator. Petitioner does not argue that the photo lineup was suggestive or rushed in any way. He also does not dispute that Mariah had heard and understood the instruction that the photographs might or might not include the perpetrator. A reasonable jurist could find that those comments uttered after Mariah's identification did not affect Mariah's pretrial identification.
As for the tenth argument, petitioner fails to show how Mariah's identification during a photo-lineup was the product of Mariah's poor perception and memory. Petitioner argues:
ECF No. 1 at 32. Petitioner cites no evidence in support of his argument, and the court need not accept petitioner's unsubstantiated theory. Besides, petitioner's counsel thoroughly challenged Mariah's identification of petitioner during four cross-examinations, and the jury nonetheless chose to credit Mariah's identification after considering the evidence presented. See RT 5:1110-1143, 1151-1153, 1156-57.
We end by addressing petitioner's allegation that the prosecutor had coached Mariah to identify the Little Cricket Express as the ride where the touching occurred. Petitioner relies on Mariah's testimony:
RT 5: 1125, 1143-44, 1148-49, 1152-53, 1155-56. Mariah's testimony does not compel a finding that the prosecutor coached Mariah. The jury heard Mariah's testimony and decided to credit her identification of petitioner as the perpetrator. A fairminded jurist could find sufficient evidence for petitioner's conviction. No other habeas claim remains for adjudication.
A petitioner seeking a writ of habeas corpus has no absolute right to appeal a district court's denial of a petition; he may appeal only in limited circumstances. See 28 U.S.C. § 2253; Miller-El v. Cockrell, 537 U.S. 322, 335-36 (2003). Rule 11 Governing Section 2254 Cases requires a district court to issue or deny a certificate of appealability when entering a final order adverse to a petitioner. See also Ninth Circuit Rule 22-1(a); United States v. Asrar, 116 F.3d 1268, 1270 (9th Cir. 1997). A certificate of appealability will not issue unless a petitioner makes "a substantial showing of the denial of a constitutional right." 28 U.S.C. § 2253(c)(2). This standard requires the petitioner to show that "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; accord Slack v. McDaniel, 529 U.S. 473, 484 (2000).
Here, petitioner has not made a substantial showing of the denial of a constitutional right. The court should therefore decline to issue a certificate of appealability.
We recommend that the court deny the petition for a writ of habeas corpus, ECF No. 1, and decline to issue a certificate of appealability.
These findings and recommendations are submitted to the U.S. District Court Judge presiding over this case under 28 U.S.C. § 636(b)(1)(B) and Rule 304 of the Local Rules of Practice for the United States District Court, Eastern District of California. Within 14 days of the service of the findings and recommendations, petitioner may file written objections to the findings and recommendations with the court and serve a copy on all parties. That document must be captioned "Objections to Magistrate Judge's Findings and Recommendations." The District Judge will then review the findings and recommendations under 28 U.S.C. § 636(b)(1)(C). Petitioner's failure to file objections within the specified time may result in the waiver of rights on appeal. See Wilkerson v. Wheeler, 772 F.3d 834, 839 (9th Cir. 2014).