SHEILA K. OBERTO, District Judge.
Petitioner, Juan Perez, Jr., is a state prisoner proceeding pro se with a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254. Petitioner presents five grounds for habeas relief: (1) insufficient evidence; (2) a due process violation based on the trial court consolidating two cases; (3) prosecutorial misconduct; (4) jury instruction error; and (5) cumulative error. The Court referred the matter to the Magistrate Judge pursuant to 28 U.S.C. § 636(b)(1) and Local Rules 302 and 304. Having reviewed the record and applicable law, the undersigned recommends that the Court deny habeas relief.
In July 2011, Ignacio Gonzalez ("Gonzalez") was a 20-year-old former Northerners gang member living in Earlimart, California. Gonzalez had dropped out of the gang in July 2008, after he assisted police in a murder investigation.
After leaving the gang, Gonzalez got into fights with gang members. In January 2011, Gonzalez was attacked by two men in the front yard of his family's home. One attacker had a knife, the other was carrying a bat. Gonzalez had to jump through a window into his home to escape the attack. Gonzalez told police that one of the attackers was "the Lopez young brother," who Gonzalez said attached him because Gonzalez had "ratted" by giving the authorities information about a murder in July 2008. A member of Gonzalez's former gang, Julio Macias ("Macias"), referred to Gonzalez as "Dead man walking," because Gonzalez had snitched on one of the gang members. Macias also said, "they were going to smoke [Gonzalez's] ass."
On January 14, 2011, Gonzalez was barbequing in his front yard with his family and his friend Victor Almaguer ("Almaguer"). Almaguer worked with Gonzalez but had never been a member of a gang. Elena Becerra ("Becerra"), Gonzalez's mother, left the home at 6:00 p.m. and returned at approximately 8:00 p.m. Gonzalez and Almaguer were still in the front yard when Becerra returned.
Shortly after Becerra returned, a group of young people dressed in black hooded sweatshirts who had been seen huddling together nearby approached Gonzalez and Almaguer, fired multiple shots at both men, and killed them. Almaguer had a gunshot wound to the leg and a fatal wound to his head. Gonzalez had gunshot wounds to his head and chest, either of which would have been fatal.
Becerra, Gonzalez's mother, heard multiple gunshots and ran out of the house. She saw men running toward a van, including Petitioner. Petitioner looked straight at Becerra, who recognized him because he used to pick Gonzalez up to play basketball. Petitioner walked around the van, got into another car, and both vehicles drove away in different directions.
Freddy Hernandez, Jr., was using a payphone at a market across the street from the Gonzalez's home and was hit in the left knee and right leg by stray bullets. Marina Gutierrez was waiting at a stop sign when a bullet shattered her windshield. Gutierrez told investigators she heard a "rash" of gunshots.
Investigators found 31 nine-millimeter shell casings at the scene. The casings were ejected from two different semiautomatic guns.
At 6:30 p.m. on the day of the murders, a two-door, yellow or golden Chevrolet Cobalt was stolen from a residence in Delano, California, about eight miles from Earlimart. The Cobalt was later found at 10:36 p.m. by firefighters. The car was engulfed in flames and completely burned.
Approximately one hour after the murders, Macias, a member of the Northerners gang, spoke to friend on the phone. The friend asked Macias whether he had committed the murders. Macias responded by laughing, but did not affirmatively admit to committing the murders. When the friend asked why Almaguer was killed, Macias replied, "It was that bitch deserved what he got." Macias later explained that he warned Almaguer on the day of the murders, "I wouldn't be here today if I was you." Almaguer responded by stating that Gonzalez was his friend. Macias stated, "It was funny I even warned him and he still — still stayed."
On October 12, 2011, Tulare County Sheriff's Detectives learned a Northerner gang dropout, Uriel Uribe ("Uribe"), was in custody and questioned him about the murders. Uribe spoke to Macias on the night of the murders. Macias stated he and other gang members drove by Gonzalez's house earlier in the day and saw Gonzalez and Almaguer in the front yard. Gonzalez "flipped off" Macias and his party as they drove by. Macias called Antonio Valdez ("Valdez") to let him know that Gonzalez was in his front yard. Macias and his party continued to the home of a different gang member, Angel Gutierrez ("Gutierrez").
When Macias arrived at Gutierrez's house, Gutierrez told Macias that Petitioner, Valdez, and a third person had picked up two firearms and left. Approximately 10 minutes later, the group at Gutierrez's house heard gunshots and drove to the scene of the crime, where they stayed for five minutes before leaving.
As Uribe was driving around Earlimart with Macias on the night of the murder, Macias received a call from Valdez. Valdez was screaming that he had just shot Gonzalez in the face and Petitioner had shot Almaguer.
At an apartment later in the evening, Uribe heard Petitioner say Valdez shot Gonzalez in the face. Petitioner detailed that he and Valdez approached Gonzalez's home from the rear, jumped over the fence, shot the victims, and left the scene in a stolen car. Petitioner stated they burned the stolen vehicle, as well as the clothes they were wearing. Petitioner described the gun he used as "very strong," and said, "the [dropouts] thought they were cool chilling outside their house."
On November 16, 2011, Gutierrez was arrested on gun charges. In exchange for a plea deal, Gutierrez gave statements to the police about the double murders and testified at Petitioner's trial. Gutierrez was a Northerner gang member since the age of 13 and had known Petitioner since high school.
Gutierrez's job for the gang was to hold guns for fellow gang members. He was good friends with Gonzalez, the murder victim, until Gonzalez dropped out of the gang, after which, the two remained friends "on the down low." The gang did not like the friendship between Gutierrez and Gonzalez because members were not supposed to associate with dropouts. Gutierrez was told by fellow gang members that Gonzalez was "not good for the hood."
A week before the murders, a gang member dropped off a nine-millimeter handgun, referred to as "Rusty Old 9," at Gutierrez's house. Gutierrez placed the gun in the truck bed of his uncle's truck. Petitioner picked up the gun from Gutierrez's house either on the day of the murders or two to three days before. Gutierrez saw other gang members in a four-door beige car with Petitioner when he picked up the gun, but could not identify them.
Gutierrez testified that at 6:00 or 7:00 p.m. on the day of the murders, Macias and two others went to Gutierrez's house. The group smoked marijuana and talked about gang dropouts, specifically mentioning Gonzalez, stating they might beat up Gonzalez if they saw him. The visitors stayed at Gutierrez's house for several hours, until they heard gunshots. The men left Gutierrez's home shortly thereafter.
In May 2011, Pablo Garcia ("Garcia") lived in Earlimart, California, next door to Ernie Medrano ("Medrano"). Garcia was not part of a gang; however, gang members who wore red clothing
At 8:30 p.m. on May 8, 2011, Garcia left his house to pick up his sister in his pickup truck. As he left his house, Jacinto Magallenas ("Magallenas") stopped him in front of Medrano's house and asked for a ride for himself and two of his friends, one of whom was Petitioner. Magallenas sat next to Garcia, while Petitioner and the other male sat in the bed of the pickup truck. Magallenas directed Garcia as he drove.
On Earlimart Avenue, Magallenas told Garcia to stop the car. Magallenas exited the car, walked around to the driver's side, opened the door, and shot Garcia in the neck. Petitioner jumped out of the pickup bed at the same time Magallenas shot Garcia. Garcia was pulled out of the truck and Magallenas, Petitioner, and the third man drove away.
Lupe Lopez, Jr., ("Lopez") saw the shooting from approximately 100 yards away. He told sheriff's deputies he saw a man in a white shirt pull Garcia from the truck, lay him on the ground in the middle of the street, get in the driver's seat, and drive away. Lopez gave sheriff's deputies several different versions of the events. At trial, Lopez testified he only saw the victim on the road after the shooting, and the victim was the man in the white shirt. Lopez's statements to the sheriff's deputies were admitted as prior inconsistent statements.
A blue denim hat was found next to Garcia's body.
On November 21, 2011, a search warrant was served on Petitioner's home. While attempting to enter the house, investigators saw Petitioner try to jump over a fence to flee. After being seen, Petitioner went back into the house.
At trial, Petitioner's brother, mother, and another family member testified that Petitioner was at a barbeque at his mother's house on May 8, 2011, and did not leave until after the shooting. A nine-year old boy also testified that he saw the shooting, and Petitioner was not present at the shooting.
A few weeks after the shooting, Garcia identified Magallenas and Petitioner from photographic lineups.
Tulare County Sheriff's Sergeant Crystal Derington ("Derington") testified as a gang expert at Petitioner's trial. Derington testified that the worst thing a gang member can do is to be a snitch, which is viewed as being a traitor and a dropout. Gang members cannot associate with dropouts, especially when they are snitches.
The Northerners gang is an umbrella group that includes the prison gang, Nuestra Familia, and the Infamous Youngsters ("IY"). The primary activities of the Northerners gang include homicides, shootings, robberies, burglaries, drive-by shootings, assaults, drug dealing, prostitution, extortion, carjacking, and witness intimidation. Gang members often use stolen vehicles to commit crimes.
In 2008, Petitioner and another IY gang member were involved in a fight with a school resources officer at Petitioner's high school. In 2009, Petitioner was contacted by law enforcement three times while he was with other IY gang members. The first time, Petitioner was wearing a red and white T-shirt and denied any gang affiliation. The third time, he admitted gang membership.
In 2010, Petitioner encountered law enforcement four times. The first time, he was wearing a red baseball cap with the letter "N" on it, but denied it was gang attire. The second time, he was found in possession of gang indicia that included membership with the IY gang, and spoke about looking for dropouts. The third time, he was wearing an IY t-shirt. The fourth time, he was in the company of a fellow gang member.
Tulare County Sheriff's Sergeant Derington had 15 contacts with Petitioner, and law enforcement in general had at least 60 contacts with him. Based on contacts, photographs, and other evidence, Derington testified that Petitioner was a member of the IY clique of the Northerners gang. Derington also found evidence that Gutierrez, Macias, and Valdez were members of the Northerners gang, and they promoted, furthered, and assisted the gang.
Regarding Garcia's shooting, Derington testified the Southerners gang associates with the color blue and is a rival to the Northerners. Gang members in Earlimart are predominantly from the Northerners gang and are expected to kill as many Southerner gang members as possible. A person who lived near a Northerner gang member and wore a blue hat could be perceived by Northerners as a rival gang member. Garcia could be perceived as a rival gang member because he was a close neighbor to Medrano, a Northerner gang member, but did not associate with Medrano.
Evidence of another crime Petitioner allegedly committed, but was not charged with, was also presented at trial. Efrain Sarabia ("Sarabia") was a high-ranking Northerner gang member who spent time with Petitioner, before he dropped out of the gang. Sarabia was also good friends with Gonzalez. After he dropped out of the gang, Sarabia got into fights with members of the Northerners.
On March 18, 2010, at 9:30 p.m., Sarabia, his brother-in-law, and a child were sitting in a car in front of Sarabia's house. Petitioner, Valdez, and two other gang members drove by the car several times in a large, white SUV. During one of the drive-bys, Petitioner and Valdez fired shots at Sarabia. One of the passengers was shot in the knee and Sarabia was shot in the neck. Sarabia described the gun used by Petitioner as similar to a nine-millimeter Uzi.
The SUV used by Petitioner and the other gang members was located the following morning at 6:33 a.m. on a rural dirt road near Earlimart. The car had been stolen around 8:00 p.m. on the night of the shooting.
Petitioner was charged in two separate cases, one for double murder of Gonzalez and Almaguer, and the other for attempted murder and carjacking of Garcia. On the prosecution's motion, the court consolidated the cases. The information alleged crimes occurring on January 14, 2011 (counts 1 through 5), and May 8, 2011 (counts 6 and 7). In count 1, Petitioner was alleged to have entered into a conspiracy to commit murder (Cal. Penal Code §§182(a)(1), 187(a)(1)). Five overt acts were alleged in count 1: (1) [Petitioner] and his coconspirators traveled to Angel Gutierrez's residence in Earlimart; (2) [Petitioner] and a coconspirator obtained guns from Angel Gutierrez; (3) [Petitioner] possessed a gun; (4) [Petitioner] and his coconspirators traveled to State and Washington Streets in Earlimart; and (5) [Petitioner] and a coconspirator fired guns.
Further, Petitioner was alleged to have committed the offense of criminal street gang conspiracy to assist felonious criminal conduct by members of the gang (Cal. Penal Code § 182.5, count 2); murder of Victor Almaguer (Cal. Penal Code § 187(a), count 3); and murder of Ignacio Gonzalez (count 4). Counts 3 and 4 further alleged special circumstance allegations for being an active participant in a criminal street gang, murdering to further the activities of the criminal street gang (Cal. Penal Code §190.2(a)(22)), and multiple murders (Cal. Penal Code § 190(a)(3)).
Counts 3 and 4 alleged the murders were committed to promote a criminal street gang (Cal. Penal Code §§ 186(b)(1)(C), 186.22(b)(4)), making Petitioner eligible for a life sentence for acting on behalf of a criminal street gang (Cal. Penal Code § 186.22(b)(5)). Counts 3 and 4 alleged that Petitioner personally used a gun causing great bodily injury and death within the meaning of California Penal Code § 12022.53(d) and (e)(1).
Petitioner was also alleged to have committed assault with a firearm on Freddy Hernandez on the date of the murders (Cal. Penal Code § 245(a)(2), count 5); attempted murder of Pablo Garcia (Cal. Penal Code §§ 664, 187(a)(2), count 6); and carjacking (Cal. Penal Code § 215(a), count 7). Counts 6 and 7 alleged Petitioner was armed with a handgun within the meaning of California Penal Code § 12022(a)(1).
A jury convicted Petitioner of all counts and found all special allegations true. The trial court sentenced Petitioner on count 7 to the upper term of nine years, plus a consecutive term of one year for using a gun. Petitioner was sentenced to consecutive terms of one year on count 5, life with the possibility of parole on count 6, and one year on count 6 for using a gun. On counts 3 and 4, Petitioner was sentenced to consecutive terms of life without the possibility of parole plus an additional consecutive term of 25 years to life for personally using a firearm leading to great bodily injury or death. On counts 1 and 2, Petitioner was sentenced to terms of 25 years to life, but the sentence was stayed.
The California Court of Appeal affirmed the judgment on July 27, 2016, and the California Supreme Court denied review on November 9, 2016.
Petitioner filed his petition for writ of habeas corpus with this Court on February 6, 2018. Respondent filed an answer on April 6, 2018, and Petitioner filed a traverse on August 2, 2018.
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 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). 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). The 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 relief, Petitioner alleges there was insufficient evidence adduced at trial to support the jury's verdict on the carjacking and attempted murder counts. (Doc. 1 at 23-26.) Petitioner claims there was evidence at trial that Petitioner was not present at the carjacking and shooting of Garcia; therefore, the evidence does not support the conviction. Id. at 24. According to Petitioner, even if the evidence shows that he was at the scene of the crime, the evidence is insufficient to prove he aided or abetted or was a conspirator in the commission of the crime. Id. Respondent counters that Petitioner failed to show the California Court of Appeal unreasonably applied clearly established federal law in rejecting Petitioner's claim. (Doc. 8 at 20.)
To determine whether the evidence supporting a conviction is so insufficient that it violates the constitutional guarantee of due process of law, a court evaluating a habeas petition must carefully review the record to determine whether a rational trier of fact could have found the essential elements of the offense beyond a reasonable doubt. Jackson, 443 U.S. at 319; Windham v. Merkle, 163 F.3d 1092, 1101 (9th Cir. 1998). It must consider the evidence in the light most favorable to the prosecution, assuming that the trier of fact weighed the evidence, resolved conflicting evidence, and drew reasonable inferences from the facts in the manner that most supports the verdict. Jackson, 443 U.S. at 319; Jones v. Wood, 114 F.3d 1002, 1008 (9th Cir. 1997).
The California Court of Appeal denied Petitioner's claim that there was insufficient evidence to convict him of the attempted murder and carjacking of Garcia:
People v. Perez, F068416, 2016 WL 4014071, at *9-11 (Cal. Ct. App. July 27, 2016).
Petitioner first contends the evidence adduced at trial is insufficient to support the claim that Petitioner was at the scene of the carjacking and shooting. (Doc. 1 at 24.) Petitioner alleges that because there was contradictory evidence as to whether Petitioner was at the scene of the crime, the jury could not have found, beyond a reasonable doubt, that Petitioner was there. (Doc. 18 at 1.)
Petitioner is asking this Court to reweigh the evidence in his favor. However, on habeas review, this Court does not reweigh the evidence presented at trial. Instead, the Court must review the record to determine whether a rational trier of fact could have found Petitioner was at the scene of the crime. Evidence is considered in the light most favorable to the prosecution, and it is assumed that the jury weighed the evidence, resolved conflicting evidence, and drew reasonable inferences from the facts in a manner that supports the verdict. Jackson, 443 U.S. at 319. Accordingly, if the facts support conflicting inferences, the reviewing court "must presume — even if it does not affirmatively appear in the record — that the trier of fact resolved any conflicts in favor of the prosecution, and must defer to that resolution." Id. at 326.
Here, the victim of the crime, Garcia, testified that Petitioner sat in the bed of the pickup truck and when the truck stopped, Petitioner got out of the truck bed. An eyewitness also claimed he saw Petitioner pull Garcia out of the truck, place him on the ground, and drive away. By contrast, several witnesses testified Petitioner could not have been at the scene of the crime, because he was at his mother's house.
When a defendant is "able to cross-examine the eyewitnesses and to argue to the trier of fact that the discrepancies in their identifications made those identifications unreliable," the "trier of fact then ha[s] the responsibility of determining whether the identifications were credible." United States v. Ginn, 87 F.3d 367, 369 (9th Cir. 1996) (citing United States v. Alexander, 48 F.3d 1477, 1490-91 (9th Cir. 1995)). A reviewing court "must respect the province of the jury to determine the credibility of witnesses, resolve evidentiary conflicts, and draw reasonable inferences from proven facts by assuming that the jury resolved all conflicts in a manner that supports the verdict." Walters v. Maas, 45 F.3d 1355, 1358 (9th Cir. 1995).
Here, the jury was presented with all the evidence, including the contradictory eyewitness statements. The jury assessed the credibility of the witnesses and determined Garcia's testimony was credible. "[T]he assessment of the credibility of witnesses is generally beyond the scope of review." Schlup v. Delo, 513 U.S. 298, 330 (1995). Based on this standard, the Court cannot say it was unreasonable for the Court of Appeal to find there was sufficient evidence to support the claim that Petitioner was at the scene of the crime.
Petitioner next argues that even assuming he was at the scene of the crime, there was insufficient evidence to find he aided and abetted or was a conspirator in committing the crimes. (Doc. 1 at 24.) Petitioner alleges that his "mere presence in the vehicle was insufficient to support a finding of any of the necessary elements of aiding and abetting." (Doc. 1 at 25.)
Attempted murder requires the specific intent to kill and the commission of a direct but ineffectual act toward accomplishing the intended killing. People v. Lee, 31 Cal.4th 613, 623 (2003). As an aider and abettor, the person must aid or encourage the perpetrator "with knowledge of the criminal purpose of the direct perpetrator and with an intent or purpose either of committing, or of encouraging or facilitating commission of the crime in question." Id. at 624 (internal citation and quotation marks omitted) (emphasis in original).
The Court of Appeal found the attack on Garcia "appeared to be coordinated" because Petitioner was riding in the bed of Garcia's truck and when Magallenas asked Garcia to stop the car and then shot Garcia, Petitioner jumped out of the truck bed, and pulled Garcia out of the truck. The Court of Appeal also relied on a hypothetical posed to the gang expert, Derington:
Perez, 2016 WL 4014071, at *10.
Based on the evidence that Petitioner was in the truck and "reasonable inferences . . . drawn from th[e] evidence," the Court of Appeal found Magallenas and "Petitioner acted in a well-coordinated conspiracy to attempt to kill [] Garcia and carjack his vehicle." Id. at *11.
As the California Court of Appeal found, the jury was presented with sufficient evidence from which it could reasonably infer Petitioner had the intent to kill Garcia. Magellenas, Petitioner, and another member of the Northerners gang got into Garcia's truck. After Magallenas shot Garcia, a witness saw Petitioner get out of the truck bed and pull Garcia out of the truck.
The jury heard evidence that the victim was shot based on gang rivalry. Derington, a gang expert, testified that Northerners, Petitioner's gang, wore red and their rivals, the Southerners, wore blue. Garcia was wearing a blue hat at the time the crimes were committed. Derington told the jury that a person living near a Northerner gang member who wore blue, could be perceived as a member of a rival gang. Garcia could also have been perceived as a member of a rival gang because he lived close to a Northerner gang member, but did not associate with the gang member. Derington testified that she believed the blue hat Garcia was wearing "created the perception he was a rival gang member, and `one of the cardinal rules within the gang is . . . to take out any and all rivals sighted at that time.'" Id. at *10.
Petitioner contends that the shooting had to be a "spontaneous[,] unilateral decision" on the part of Magallenas when he saw Garcia wearing a blue hat, and could not have been "the product of a conspiracy or plan involving [P]etitioner." (Doc. 1 at 25.) Petitioner states he could not have known that someone wearing a blue hat would pick them up and "once Magallenas got inside the cab of the truck with Garcia, Magallenas had no means to communicate with the two men in the bed of the truck." Id.
Even without evidence of an explicit plan to hunt for rival gang members, the evidence demonstrated that Garcia lived next door to a known Northerner gang member, Medrano, and did not associate with Medrano. On May 8, 2011, Garcia was wearing a blue hat, which is associated with the Northerners' rival gang. Magallenas stopped Garcia's truck as Garcia was driving by Medrano's house and asked for a ride for himself and his two friends, including Petitioner. Derington testified that Northerners were supposed to "take out" any rivals that they saw. From this evidence, the jury could reasonably infer that Magallenas, Garcia, and the third gang member saw Garcia in his blue hat and stopped him in order to "take him out."
"Among the factors which may be considered in determining aiding and abetting are: presence at the crime scene, companionship, and conduct before and after the offense." In re Juan, 112 Cal.App.4th 1, 5 (2003). Once Magallenas shot Garcia, instead of running away, Petitioner pulled Garcia out of the truck and Petitioner got into the truck and drove away. Taken as a whole, the actions and conduct of Petitioner and Magallenas established that both men were working together and shared the same intent. Therefore, the lack of evidence of an explicit plan to hunt a rival gang member does not demonstrate that there was insufficient evidence of Petitioner's intent to aid and abet the shooting.
Petitioner also alleges there was insufficient evidence adduced at trial to show that Petitioner committed the carjacking. There was conflicting evidence as to who pulled Garcia out of the car and drove away with the truck. Garcia testified it was Petitioner, while other witnesses testified they did not see Petitioner pull Garcia from the truck. The jury assessed the credibility of the witnesses and determined Garcia's testimony was credible. Therefore, the Court cannot say there was insufficient evidence that Petitioner committed the carjacking.
The Court of Appeal's decision was not an objectively unreasonable application of clearly established federal law, nor did it result in a decision that was based on an unreasonable determination of the facts in light of the evidence presented. For these reasons, the undersigned recommends denying Petitioner's claim that there was insufficient evidence to support a finding that Petitioner aided and abetted an attempted murder and committed a carjacking.
In his second ground for relief, Petitioner alleges the trial court improperly joined the two cases of the shootings of Gonzalez and Almaguer in January 2011, and the shooting and carjacking of Garcia in May 2011. (Doc. 1 at 26-35.)
The California Court of Appeal rejected Petitioner's claim that the state court improperly joined two cases against Petitioner:
Perez, 2016 WL 4014071, at *11-14.
To the extent Petitioner's claim involves the trial court's misapplication of California's laws regarding joinder, the claim is not cognizable on federal habeas review, because it involves only an alleged error of state law. "It is not the province of a federal court to reexamine state court determinations of state law questions." Estelle v. McGuire, 502 U.S. 62, 71-72 (1991). Habeas relief is not available for an alleged error in the application of state law. Id. at 68.
There is no clearly established Federal law that holds the joinder or consolidation of charges violates the Constitution. In United States v. Lane, the United States Supreme Court stated in a footnote that "[i]mproper joinder does not, in itself, violate the Constitution. Rather, misjoinder would rise to the level of a constitutional violation only if it results in prejudice so great as to deny a defendant his Fifth Amendment right to a fair trial." 474 U.S. 438, 446 n.8 (1986).
However, the Ninth Circuit has stated:
Young v. Pliler, 273 Fed. Appx. 670, 672 n.1 (9th Cir. 2008).
Because the statement from Lane is dicta, Lane does not set forth a governing legal principle, and does not constitute clearly established federal law, with regard to when severance is constitutionally mandated. Collins v. Runnels, 603 F.3d 1127, 1132 (9th Cir. 2010); see also Carey v. Musladin, 549 U.S. 70, 74 (2006) (restricting "clearly established federal law" under § 2254 to holdings of the Supreme Court, rather than dicta). For these reasons, the Court of Appeal's rejection of Petitioner's severance claim could not have been an unreasonable application of clearly established federal law.
Prior to Collins, the Ninth Circuit held undue prejudice from misjoinder existed only "if the permissible joinder had a substantial and injurious effect or influence in determining the jury's verdict." Sandoval v. Calderon, 241 F.3d 765, 772 (9th Cir. 2000). "In evaluating prejudice, the Ninth Circuit focuses particularly on cross-admissibility of evidence and the danger of `spillover' from one charge to another, especially where one charge or set of charges is weaker than another." Davis v. Woodford, 384 F.3d 628, 638 (9th Cir. 2004). The risk of prejudice increases "whenever joinder of counts allows evidence of other crimes to be introduced in a trial where the evidence would otherwise be inadmissible." Sandoval, 241 F.3d at 772.
Petitioner alleges the two cases were improperly joined because evidence in the cases were not cross-admissible, the cases were weak individually, and joining the cases was "unusually likely" to inflame the jury against Petitioner. (Doc. 1 at 28-34.)
However, the California Court of Appeal reasonably concluded that Petitioner suffered no prejudice from the trial court's decision to join the two cases against him. The Court of Appeal found the evidence in the cases were cross-admissible pursuant to California Evidence Code § 1101(b) as evidence of motive, common plan and scheme, and intent. Perez, 2016 WL 4014071, at *13. Evidence of both shootings showed Petitioner was an active participant in the Northerners gang and the shootings were carried out to further the activities of the gang and for the benefit of the gang. Id.
Petitioner claims that joining the two cases allowed two weak cases to become a stronger case. Petitioner alleges the "consolidation combined the extremely weak, if not wholly insufficient, Garcia incident with the double murder case, which was also based on questionable evidence." (Doc. 1 at 32.) As the California Court of Appeal noted, Petitioner asks the Court to re-evaluate the evidence presented at trial in the light most favorable to Petitioner. Perez, 2016 WL 4014071, at *12. However, on habeas review, evidence is considered in the light most favorable to the prosecution, and it is assumed that the jury weighed the evidence, resolved conflicting evidence, and drew reasonable inferences from the facts in a manner that supports the verdict. Jackson, 443 U.S. at 319.
Eyewitness testimony placed Petitioner at both crime scenes as one of the shooters at the double murder and as the person that pulled Garcia out of his truck and drove off with the truck during the attempted murder and carjacking. While several witnesses testified Petitioner could not have been at either crime scene, the jury was tasked with determining the credibility of the witnesses and found the witnesses who placed Petitioner at the crime scenes as more credible. Given the eyewitness statements, both cases were strong on their own.
Finally, Petitioner claims joining the two cases was "`unusually likely' to inflame the jury against" Petitioner, because joining the cases created a "piling-on effect." (Doc. 1 at 34-35.) However, 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." (Lodged Doc. 11 at 1203.) There was no indication that the jury was unable to follow the instructions, and the Court presumes the jury followed the jury instructions. Doe v. Busby, 661 F.3d 1001, 1017-18 (2011) (internal citations omitted).
Based on the foregoing, the undersigned recommends finding that the Court of Appeal's rejection of Petitioner's claim was neither contrary to, nor involved an unreasonable application of, clearly established federal law. Consequently, federal habeas relief is not warranted on this claim, and should be denied.
In his third ground for habeas relief, Petitioner contends the prosecutor committed misconduct by questioning an unsworn witness in violation of the Confrontation Clause. (Doc. 1 at 35-36.) Further, Petitioner claims the trial court erred in denying Petitioner's motion for a mistrial after the prosecutor improperly questioned a witness. Id. at 36. Respondent responds that Petitioner is procedurally barred from raising the prosecutorial misconduct claim and no Supreme Court precedent supports his claims. (Doc. 8 at 32.)
A prosecutor's improper comments will be held to violate Constitutional rights only if the comments "so infected the trial with unfairness as to make the resulting conviction a denial of due process." Parker v. Matthews, 567 U.S. 37, 45 (2012) (per curiam) (quoting Darden v. Wainwright, 477 U.S. 168, 181 (1986)). Prosecutorial misconduct violates the Due Process guarantee of a fair trial if it prejudicially affects the rights of the defendant. United States v. Yarbrough, 852 F.2d 1522, 1539 (9th Cir. 1988) (citing Smith v. Phillips, 455 U.S. 209, 219 (1982)).
The Court must determine whether the alleged misconduct by the prosecutor rendered the trial fundamentally unfair. Darden, 477 U.S. at 183. To grant habeas relief, the Court must find that the state court's rejection of the prosecutorial misconduct claim "was so lacking in justification that there was an error well understood and comprehended in existing law beyond any possibility for fairminded disagreement." Parker, 567 U.S. at 47 (quoting Harrington, 562 U.S. at 103).
The California Court of Appeal rejected Petitioner's prosecutorial misconduct claims, as follows:
Perez, 2016 WL 4014071, at *15-18.
At trial, the prosecutor called Carlos Infante ("Infante") as a witness. When Infante took the stand, he stated he had nothing to say and refused to take the oath. The following exchange occurred:
(Lodged Doc. 7 at 182.)
The trial court sustained the objection, struck the questions, and admonished the jury, stating: "When I strike something, you're to assume it didn't happen." Id. at 183. The trial court asked Infante, "On March 26, 2013, did you talk to Investigator Denny?" Infante responded, "I don't want to say anything. I am not going to say anything." Id.
The Court held a conference out of the presence of the jury, at which defense counsel asked for a mistrial, arguing:
Id. at 184.
The Court denied the motion for a mistrial. Id. at 186. The court called Infante back to the stand and ordered him to answer the court's question of whether he had talked to an officer regarding this case. Id. at 187. Infante refused to answer any questions, and the court held him in contempt of court. Id. at 187-88.
The next day, the court addressed the prosecutor's questioning of Infante, stating,
(Lodged Doc. 8 at 336-37.)
The court stated the prosecutor's question was insufficient to warrant a mistrial, given that it was a partial question that the witness did not answer, and the court immediately struck the question and admonished the jury to disregard it. Id. at 337
Petitioner contends the prosecutor committed misconduct by questioning Infante after Infante refused to take the oath. (Doc. 1 at 37-38.) The California Court of Appeal held Petitioner was procedurally barred from raising this claim on appeal, because he did not object at trial.
A federal court cannot review claims in a petition for writ of habeas corpus if a state court denied relief on the claims based on state law procedural grounds that are independent of federal law and adequate to support the judgment. Coleman v. Thompson, 501 U.S. 722, 750 (1991). "A district court properly refuses to reach the merits of a habeas petition if the petitioner has defaulted on the particular state's procedural requirements." Park v. California, 202 F.3d 1146, 1150 (2000).
A petitioner procedurally defaults his claim if he fails to comply with a state procedural rule or fails to raise his claim at the state level. Peterson v. Lampert, 319 F.3d 1153, 1156 (9th Cir. 2003) (citing O'Sullivan v. Boerckel, 562 U.S. 838, 844-45 (1999)). The procedural default doctrine applies when a state court determination of default is based in state law that is both adequate to support the judgment and independent of federal law. Ylst v. Nunnemaker, 501 U.S. 797, 801 (1991). An adequate rule is one that is "firmly established and regularly followed." Id. (quoting Ford v. Georgia, 498 U.S. 411, 423-24 (1991)); Bennett v. Mueller, 322 F.3d 573, 583 (9th Cir. 2003). An independent rule is one that is not "interwoven with federal law." Park, 202 F.3d 1146 at 1152 (quoting Michigan v. Long, 463 U.S. 1032, 1040-41 (1983)).
When a state prisoner has defaulted on his federal claim in state court pursuant to an independent and adequate state procedural rule, federal habeas review of the claim is barred, unless the prisoner can demonstrate cause for the default and actual prejudice as a result of the alleged violation of federal law, or demonstrate that failure to consider the claims will result in a fundamental miscarriage of justice. Coleman, 501 U.S. at 750.
California's procedural default rule is independent of federal law. See Tran v. Sherman, No. 1:15-cv-00716-LJO, 2015 WL 510879 at *1 (E.D. Cal. Aug. 31, 2015); Sanchez v. Ryan, 392 F.Supp.2d 1136, 1138-39 (C.D. Cal. 2005); Protsman v. Pliler, 318 F.Supp.2d 1004, 1007-08 (S.D. Ca. 2004). Consequently, because the California Court of Appeal's denial was based on an independent state procedural rule, denial of the petition was on independent state law grounds.
Petitioner claims there was not an adequate state ground to procedurally bar this Court from reviewing the claim, because "California law holds that a reviewing court may exercise discretionary authority to review non-evidentiary claims on the merits, even in the absence of an objection." (Doc. 187 at 7) (citing People v. Williams, 17 Cal.4th 148, 161, fn.6 (1998)). A state law ground is "adequate" if it is "`firmly established and regularly followed' at the time it was applied by the state court." Poland v. Stewart, 169 F.3d 573, 577 (9th Cir. 1999) (quoting Ford v. Georgia, 498 U.S. 411, 424 (1991)). While Petitioner finds cases where California courts have reviewed claims in the absence of an objection during trial, these cases are the exception rather than the rule. California's procedural default rule is "regularly followed."
California's procedural default rule is established and followed in California state courts; therefore, the procedural ground was adequately applied and bars federal review by this Court. See Sanchez, 392 F. Supp. 2d at 1138-39; Protsman, 318 F. Supp. 2d at 1008. Based on the foregoing, California's procedural default rule is adequate and independent.
Petitioner alleges he was prejudiced by the prosecutor's questions to Infante after he refused to take an oath and his Sixth Amendment right to confrontation was violated. Confrontation Clause rights may be waived. See e.g. Melendez-Diaz v. Massachusetts, 557 U.S. 305, 313 n.3 (2009) ("The right to confrontation may, of course, be waived, including by failure to object to the offending evidence . . ."); Godinez v. Moran, 509 U.S. 389, 399 (1993) (noting that a defendant may waive his right of confrontation); United States v. Gamba, 541 F.3d 895, 900 (9th Cir. 2008) (counsel may deliberately and as a result of trial tactics and strategy waive defendant's Sixth Amendment right to cross-examination and confrontation).
Here, Petitioner's trial counsel did not object to Infante taking the stand without being sworn, but did object to the question the prosecutor posed to Infante. The Court will discuss the potential prejudice of the prosecutor's question, infra.
Petitioner alleges the prosecutor engaged in misconduct by violating the trial court's order not to ask questions regarding Infante's statement to investigators and contends that asking the question presented prejudicial evidence to the jury. (Doc. 1 at 38-40.) Respondent responds that no Supreme Court case clearly holds that a prosecutor's violation of a court order violates a Petitioner's due process rights. (Doc. 8 at 42-44.)
The Court must determine whether the prosecutor's question "so infected the trial with unfairness as to make the resulting conviction a denial of due process." Parker, 567 U.S. at 45 (2012) (quoting Darden, 477 U.S. at 181). The California Court of Appeal found there was no harm, because the prosecutor asked a single question and "any potential harm was immediately overcome by the trial court sustaining the objections by defense counsel and order the prosecutor's question stricken." Perez, 2016 WL 4014071, at *18.
Petitioner cites Hardnett v. Marshall, 25 F.3d 875 (9th Cir. 1994), in which the Ninth Circuit held a prosecutor engaged in misconduct by violating the defendant's rights under the Confrontation Clause. In cross examining a defendant, the prosecutor introduced "in the form of questions" out of court statements in violation of a trial court order. Id. at 879. The prosecutor asked the defendant four questions about a co-defendant's statements to police. Id. at 878. Defense counsel objected to each question and the court sustained each objection. After the fourth questions, the Court told the prosecutor not to "make reference to a witness' statement — this is the witness who's testifying — or alleged statement." Id. During jury instructions, the court instructed the jury that the statements of the lawyers were not evidence. The Court held that "[w]here misconduct has been as blatant as [the prosecutor's] was, and the inadmissible testimony as relevant as it was here, we cannot presume that the jury paid no attention to it, rather, we adopt the realistic view of the First Circuit that the kind of impression made could not be cured by an instruction." Id.
The case at bar is distinguishable from Hardnett. Here, the prosecutor asked Infante one question—to which defense counsel objected. The court sustained the objection and immediately instructed the jury to disregard the question. The jury was also instructed that nothing the attorney said was evidence and that their questions were not evidence. "When a defendant contends that a prosecutor's question rendered his trial fundamentally unfair, it is important `as an initial matter to place th[e] remar[k] in context.'" Greer v. Miller, 483 U.S. 756, 766 (quoting Darden, 477 U.S. at 179). Here, where there was "a single question, an immediate objection" and a curative instruction, there was no violation of Petitioner's due process rights. Id.
Finally, Petitioner contends the trial court denied him his due process rights by denying his motion for a mistrial because "[t]he prosecutor's leading question was incurably prejudicial." The undersigned has already found the question was not "incurably prejudicial"; therefore, it recommends denying Petitioner's claim.
In his fourth ground for habeas relief, Petitioner alleges the trial court erred by failing to instruct the jury on accomplice testimony and other-crimes evidence.
Generally, claims of instructional error are questions of state law and are not cognizable on federal habeas review. "It is not the province of a federal court to reexamine state court determinations of state law questions." Estelle v. McGuire, 502 U.S. 62, 71-72 (1991). "The fact that a jury instruction violates state law is not, by itself, a basis for federal habeas corpus relief." Clark v. Brown, 450 F.3d 898, 904 (9th Cir. 2006). "[A] petitioner may not "transform a state-law issue into a federal one merely by asserting a violation of due process." Langford v. Day, 110 F.3d 1380, 1389 (9th Cir. 1997).
A trial court's refusal to give an instruction does not, by itself, raise a cognizable claim under federal habeas review. Dunckhurst v. Deeds, 859 F.2d 110, 114 (9th Cir. 1988). To prevail in a collateral attack on state court jury instructions, a petitioner must do more than prove that the instruction was erroneous. Henderson v. Kibbe, 431 U.S. 145, 154 (1977). The petitioner must prove that the error "by itself so infected the entire trial that the resulting conviction violated due process." Estelle, 502 U.S. at 72. Even if there were constitutional error, habeas relief cannot be granted absent a "substantial and injurious effect" on the verdict. Brecht v. Abrahamson, 507 U.S. 619, 637 (1993).
Due process requires "criminal defendants be afforded a meaningful opportunity to present a complete defense." Clark, 450 F.3d at 904 (quoting California v. Trombetta, 467 U.S. 479, 485 (1984)) (internal quotation marks omitted). Criminal defendants are entitled to adequate instructions on the defense theory of the case; however, Due Process only requires instructions be given when the evidence supports the instruction. Conde v. Henry, 198; F.3d 734, 739 (9th Cir. 2000); Hopper v. Evans, 456 U.S. 605, 611 (1982); Menendez v. Terhune, 422 F.3d 1012, 1029 (9th Cir. 2005).
Omitting an instruction is less likely to be prejudicial than misstating the law. Walker v. Endell, 850 F.2d 470, 475-76 (9th Cir. 1987) (citing Henderson, 431 U.S. at 155.)
Petitioner contends the trial court should have instructed the jury as to accomplice liability, pursuant to CALCRIM No. 334, which states that accomplice testimony must be corroborated.
The California Court of Appeal rejected Petitioner's claim that the jury should have been instructed as to accomplice testimony:
Perez, 2016 WL 4014071, at *19-20.
The state court determined the accomplice testimony instruction was not warranted under California law. This Court is bound by the state court's ruling on a question of state law. Estelle, 502 U.S. at 71-72.
The United States Constitution does not require that accomplice testimony be corroborated. United States v. Augenblick, 393 U.S. 348, 352 (1969) ("When we look at the requirements of procedural due process, the use of accomplice testimony is not catalogued with constitutional restrictions."); Laboa v. Calderon, 224 F.3d 972, 979 (9th Cir. 2000) (California Penal Code § 1111
In contrast to California law, under federal law, "[t]he uncorroborated testimony of an accomplice is sufficient to sustain a conviction unless it is incredible or insubstantial on its face." United States v. Necochea, 986 F.2d 1273, 1282 (9th Cir. 1993) (citing United States v. Lai, 944 F.2d 1434, 1440 (9th Cir. 1991)). In the absence of Supreme Court precedent, Petitioner is not entitled to habeas relief, because the state court's decision cannot be contrary to, or an unreasonable application of, clearly established federal law.
Even considering Petitioner's claim that the trial court erred by failing to give the accomplice testimony instruction, Petitioner has not shown that the alleged error had a "substantial and injurious effect or influence on determining the jury's verdict." Brecht, 507 U.S. at 623. Petitioner contends Uribe's testimony that Petitioner admitted to participating in the shooting was uncorroborated and was a critical component of the prosecution's case. (Doc. 1 at 45.) However, there was eyewitness testimony that placed Petitioner at the scene and as a shooter. Consequently, as the California Court of Appeal found, the testimony was corroborated by non-accomplice evidence. Therefore, any error in failing to instruct the jury with CALCRIM No. 334 was harmless. For the foregoing reasons, the Court recommends denying Petitioner's claim.
Petitioner next contends the trial court violated his constitutional rights by providing the jury with an incomplete instruction on other crimes evidence. (Doc. 1 at 46-50.)
The trial court instructed the jury with CALCRIM No. 375, as follows:
(Lodged Doc. 11 at 1171-73.)
Petitioner states the trial court had a duty to provide a bracketed portion of the instruction, which states, "Do not conclude from this evidence that the defendant has a bad character or is disposed to commit crime." (Doc. 1 at 48.) Further, Petitioner alleges the trial court erred by failing to limit consideration of other crimes evidence to the murder charges only. Id. at 49.
The California Court of Appeal rejected Petitioner's claim that the trial court incorrectly instructed the jury as to other-crimes evidence:
Perez, 2016 WL 4014071, at *20-22.
Petitioner alleges he was prejudiced by the trial "court's failure to instruct the jury specifically that the other crimes evidence could not be used as evidence of bad character or propensity to commit the charged crimes prejudiced." (Doc. 1 at 50.)
To the extent Petitioner contends that the trial court erred under state law, his claim is not cognizable on federal habeas review. Estelle, 502 U.S. at 71-72 (allegation that jury instruction was incorrect under state law "not a basis for habeas relief").
Petitioner's claim also fails under federal habeas review, because Petitioner has not identified any Supreme Court precedent which clearly establishes that permitting a jury to consider evidence of a defendant's uncharged criminal conduct violates the Due Process Clause. Indeed, the United States Supreme Court has not resolved whether the admission of prior bad acts under state law to show propensity constitutes a due process violation. See Estelle, 502 U.S. at 75 n. 5 ("Because we need not reach the issue, we express no opinion on whether a state law would violate the Due Process Clause if it permitted the use of `prior crimes' evidence to show propensity to commit a charged crime."); Larson v. Palmateer, 515 F.3d 1057, 1066 (9th Cir. 2008) ("The Supreme Court has expressly reserved the question of whether using evidence of the defendant's past crimes to show that he has a propensity for criminal activity could ever violate due process."). Where the Supreme Court has not "squarely established" a legal rule that governs a particular claim, it cannot be said that a state court's decision unreasonably applied federal law when it adjudicated the claim. See Knowles v. Mirzayance, 556 U.S. 111, 122 (2009).
Finally, the claim would fail on the merits, even if it was cognizable. Where a state court has rejected a due process claim on the merits, federal habeas relief is only appropriate if the state court's application of the governing Supreme Court precedent was objectively unreasonable. White v. Woodall, 572 U.S. 415, 419 (2014). Here, the state court reasonably concluded that the bracketed language in CALCRIM No. 375 was not necessary, because "[e]vidence of the uncharged crime was not the dominant part of the prosecution's case." Perez, 2016 WL 4014071, at *21. Further, the Court of Appeal reasonably found "[t]here was [] a direct, logical nexus between the uncharged and charged offenses probative of [Petitioner]'s motive, which was clearly to avenge Northerners by punishing dropout gang members and perceived members of the rival Southerner gang." Id. at *22.
The Court of Appeal's factual determinations are reasonably supported by the record, and thus presumed correct. See 28 U.S.C. § 2254(e)(1); Lambert v. Blodgett, 393 F.3d 943, 972 (9th Cir. 2004). There were permissible inferences the jury could draw from the uncharged crimes evidence, and Petitioner does not plausibly argue that the trial court's CALCRIM No. 375 instruction contained an incorrect statement under California state law. Therefore, it was reasonable for the Court of Appeal to conclude that the trial court did not err in giving the jury instruction. Nothing in the record suggests that permitting the jury to consider the other-crimes evidence rendered the trial fundamentally unfair or violated due process.
For the foregoing reasons, the undersigned recommends denying Petitioner's jury instruction error claim.
In his fifth ground for habeas relief, Petitioner alleges the combined effects of all the errors rendered the trial fundamentally unfair. (Doc. 1 at 51.)
The California Court of Appeal rejected Petitioner's cumulative error claim:
Perez, 2016 WL 4014071, at *22.
Under the cumulative error doctrine, the combined effect of multiple errors at trial can give rise to a due process violation, if the errors rendered the trial fundamentally unfair, even if each error considered individually would not warrant relief. See Parle v. Runnels, 505 F.3d 922, 928 (9th Cir. 2007). "[T]he fundamental question in determining whether the combined effect of trial errors violated a defendant's due process rights is whether the errors rendered the criminal defense far less persuasive" and thus "had a substantial and injurious effect or influence on the jury's verdict." Id. (internal citation and quotation marks omitted). The Ninth Circuit has "granted habeas relief under the cumulative effects doctrine when there is a `unique symmetry' of otherwise harmless errors, such that they amplify each other in relation to a key contested issue in the case." Ybarra v. McDaniel, 656 F.3d 984, 1001 (9th Cir. 2011) (citing Parle, 505 F.3d at 927).
The Court has addressed each of the errors raised by Petitioner in his petition for writ of habeas corpus and found no error. Therefore, "[b]ecause we conclude that no error of constitutional magnitude occurred, no cumulative prejudice is possible." Hayes v. Ayers, 632 F.3d 500, 524 (9th Cir. 2011). Accordingly, the undersigned recommends denying Petitioner's claim of cumulative error.
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 recommends declining to issue a certificate of appealability.
Based on the foregoing, the undersigned recommends that the Court dismiss the petition for writ of habeas corpus with prejudice and decline to issue a certificate of appealability.
These Findings and Recommendations will be submitted to the United States District Judge assigned to the case, pursuant to the provisions of 28 U.S.C 636(b)(1). Within
IT IS SO ORDERED.
