MITCHELL D. DEMBIN, District Judge.
This Report and Recommendation is submitted to United States District Judge Michael M. Anello pursuant to 28 U.S.C. § 636(b)(1) and Local Civil Rule 72.1(c) of the United States District Court for the Southern District of California.
Rolando Gutierrez ("Petitioner"), a state prisoner proceeding pro se, seeks federal habeas relief from convictions for one count of second-degree murder (California Penal Code § 187(a)), one count of attempted second-degree murder (Cal. Pen. Code §§ 664, 187(a)), one count of making a criminal threat (Cal. Pen. Code § 422), and one count of corporal injury resulting in a traumatic condition (Cal. Pen. Code § 273.5(a)).
After reviewing the Petition (ECF No. 1), Respondent's Answer and Memorandum of Points and Authorities in support thereof ("Answer") (ECF Nos. 15, 15-1), Petitioner's Traverse (ECF No. 21), supporting documents and pertinent state court Lodgments, the Court
"[A] determination of factual issue made by a State court shall be presumed to be correct." 28 U.S.C. § 2254(e)(1). The following facts, taken from the California Court of Appeal's September 17, 2015, decision on direct review, (ECF No. 16-40 at 3-8), have not been rebutted with clear and convincing evidence and must be presumed correct. 28 U.S.C. § 2254(e)(1); Slovik v. Yates, 556 F.3d 747, 749 n.1 (9th Cir. 2009).
(ECF No. 16-40 at 3-8) (footnotes omitted).
On August 12, 2013, a San Diego Superior Court jury convicted Petitioner of the second-degree murder of Hannah Podhorsky (Cal. Pen. Code § 187(a)) and the attempted second-degree murder of another victim (Cal. Pen. Code §§ 664, 187(a)). (ECF No. 16-33 at 28-29). "As to both of these counts, the jury found true the following allegations: defendant committed the crimes as part of criminal street gang-related activities ([Cal. Penal Code] § 186.22(b)(1)); and defendant was a principal in the crimes, and in their commission at least one principal used a firearm, proximately causing a person's death ([Cal. Penal Code] § 12022.53(d), (e)(1))." (ECF No. 16-40 at 2). "In addition, from a domestic violence incident in August 2011, the jury convicted defendant of making a criminal threat ([Cal. Pen. Code] § 422) and corporal injury resulting in a traumatic condition ([Cal. Pen. Code] § 273.5(a)), but could not reach a verdict as to the attempted murder of Merith Duenas ([Cal. Pen. Code] §§ 664, 187(a)). As to the corporal injury count, the jury found true the allegation that defendant personally used a deadly and dangerous weapon, a knife ([Cal. Pen. Code] §§ 12022(b)(1), 1192.7(c)(23))." (Id.). Petitioner was sentenced to a term of 65 years to life along with a consecutive term of ten years and four months.
On February 2, 2015, Petitioner filed an appeal in the California Court of Appeal, (ECF No. 16-37), arguing that "the trial court abused its discretion in not severing the charges arising from the February 2009 shooting from the charges arising from the August 2011 domestic violence incident." (ECF No. 16-40 at 2). The Court of Appeal affirmed the superior court's judgment. (ECF No. 16-40 at 2). On October 26, 2015, Petitioner filed a Petition for Review in the California Supreme Court. (ECF No. 16-41). The California Supreme Court denied review on December 9, 2015. (ECF No. 16-42).
On November 14, 2016, Petitioner filed a Petition for Writ of Habeas Corpus with the San Diego Superior Court. (ECF No. 16-47). Petitioner raised four claims: (1) improper admission of gang evidence; (2) insufficient evidence to establish Cal. Penal Code § 186.22; (3) ineffective assistance of trial counsel; and (4) ineffective assistance of counsel on appeal. (Id.). The San Diego Superior Court denied habeas relief on December 12, 2016. (ECF No. 16-44). On January 25, 2017, Petitioner filed a habeas petition with the California Court of Appeal (Fourth District, Division 1), (ECF No. 16-45), which denied habeas relief on February 3, 2017, (ECF No. 16-46). On February 16, 2017, Petitioner filed a habeas petition in the California Supreme Court, (ECF No. 16-47), which denied habeas relief on April 19, 2017. (ECF No. 16-48).
On February 24, 2017, Petitioner, proceeding pro se, constructively filed the instant Petition for Writ of Habeas Corpus. (ECF No. 1). The Petition sets forth the claim raised on direct review and the four claims raised on habeas review: (1) improper joinder of counts; (2)(A) improper admission of gang evidence; (2)(B) insufficient evidence to establish Cal. Penal Code § 186.22; (3) ineffective assistance of trial counsel; and (4) ineffective assistance of appellate counsel. (ECF No. 1 at 6-9). On March 13, 2017, Petitioner constructively filed a motion to amend the second, third, and fourth grounds for relief in his Petition to show that they were exhausted. (ECF No. 10 at 1). This Court granted the Motion to Amend his Petition on May 17, 2017. (ECF No. 14). On May 19, 2017, Respondent filed an Answer, (ECF No. 15), and Memorandum of Points and Authorities In Support of Answer, (ECF No. 15-1). On July 16, 2017, Petitioner filed a Traverse and Memorandum of Points and Authorities in Support of Traverse. (ECF No. 21).
"The statutory authority of federal courts to issue habeas corpus relief for persons in state custody is provided by 28 U.S.C. § 2254, as amended by the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA)." Harrington v. Richter, 562 U.S. 86, 97 (2011). Under § 2254(d), federal habeas relief for a claim adjudicated on the merits in state court is granted if the state court adjudication of the claim either: "(1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States; or (2) resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding." 28 U.S.C. § 2254(d). "The petitioner carries the burden of proof." Cullen v. Pinholster, 563 U.S. 170, 181 (2011).
In other words, "if the state court denies the claim on the merits, the claim is barred in federal court unless one of the exceptions to § 2254(d) set out in §§ 2544(d)(1) and (2) applies." Richter, 562 U.S. at 103. "This is a `difficult to meet' and `highly deferential standard for evaluating state-court rulings, which demands that state-court decisions be given the benefit of the doubt[.]'" Pinholster, 563 U.S. at 181; White v. Woodall, 134 S.Ct. 1697, 1702 (2014) ("This standard, we recently reminded the Sixth Circuit, is difficult to meet.") (internal quotations omitted).
The state court's decision is "contrary to" clearly established federal law if it either "`applies a rule that contradicts the governing law set forth in [Supreme Court] cases' or `confronts a set of facts that are materially indistinguishable from a decision of [the] Court and nevertheless arrives at a result different from [Supreme Court] precedent.'" Holley v. Yarborough, 568 F.3d 1091, 1098 (9th Cir. 2009) (quoting Williams v. Taylor, 529 U.S. 362, 405-06 (O'Connor, J., concurring)).
The state court's decision is "an unreasonable application" of clearly established federal law "if `the state court identifies the correct governing legal principle' but applies the principle unreasonably to the prisoner's factual situation." Holley, 568 F.3d at 1098 (quoting Williams, 529 U.S. at 413).
"The `unreasonable application' clause requires the state decision to be more than incorrect or erroneous. The state court's application of clearly established law must be objectively unreasonable." Lockyer v. Andrade, 538 U.S. 63, 75 (2003). Relief under § 2254(d)(1)'s "unreasonable-application clause" is available "if, and only if, it is so obvious that a clearly established rule applies to a given set of facts that there could be no `fairminded disagreement' on the question." Woodall, 134 S.Ct. at 1706-07 (quoting Richter, 562 U.S. at 103).
"`[C]learly established Federal law' for purposes of § 2254(d)(1) includes only `the holdings, as opposed to the dicta, of [the Supreme] Court's decisions.'" Woodall, 134 S.Ct. at 1702 (quoting Howes v. Fields, 565 U.S. 499, 505 (2012)). "In other words, `clearly established Federal law' under § 2254(d)(1) is the governing legal principle or principles set forth by the Supreme Court at the time the state court renders its decision." Lockyer, 538 U.S. at 71-72. "Circuit precedent may not serve to create established federal law on an issue the Supreme Court has not yet addressed." Holley, 568 F.3d at 1097. As such, "[i]f there is no Supreme Court precedent that controls a legal issue raised by a petitioner in state court, the state court's decision cannot be contrary to, or an unreasonable application of, clearly-established federal law." Stevenson v. Lewis, 384 F.3d 1069, 1071 (9th Cir. 2004).
Federal courts review the last reasoned decision from the state courts. See Ylst v. Nunnemaker, 501 U.S. 797, 804-06 (1991); Hibbler v. Benedetti, 693 F.3d 1140, 1146 (9th Cir. 2012). In deciding a state prisoner's habeas petition, a federal court is not called upon to decide whether it agrees with the state court's determination; rather, the court applies an extraordinarily deferential review, inquiring only whether the state court's decision was objectively unreasonable. See Yarborough v. Gentry, 540 U.S. 1, 6 (2003); Medina v. Hornung, 386 F.3d 872, 877 (9th Cir. 2004).
In claim one, Petitioner claims he was denied his right to an impartial jury, a fair trial, and due process when the trial court denied his motion to sever the two sets of charges: the 2009 murder and attempted murder and the 2011 domestic violence incident. (ECF No. 1 at 37, 43).
Petitioner raised claim one in his petition for review to the state appellate and supreme courts. (ECF Nos. 16-37, 16-41). The appellate court denied Petitioner's claim on the merits and the California Supreme Court denied the petition without comment or citation to authority. (ECF Nos. 16-40, 16-42). Accordingly, this Court must "look through" to the state appellate court's opinion denying the claim as the basis for authority. Ylst. 501 U.S. at 805-06. That court wrote:
(ECF No. 16-40 at 12-20) (internal citations and footnotes omitted).
Petitioner contends that the prejudicial misjoinder of charges deprived him of due process. In doing so, Petitioner argues "[d]espite [Petitioner]'s strong defense to the murder charges, the jury heard extensive, inflammatory evidence of his abuse of Duenas—where his identity was uncontested— tipping the scales in favor of conviction. Joinder deprived [Petitioner] of due process, requiring reversal." (ECF No. 1 at 48).
Respondent argues that the severance claim is not cognizable in habeas corpus proceedings and that the claim was reasonably rejected by the state court. (ECF No. 15-1 at 16, 17).
"If there is no Supreme Court precedent that controls a legal issue raised by a petitioner in state court, the state court's decision cannot be contrary to, or an unreasonable application of, clearly-established federal law." Stevenson, 384 F.3d at 1071. Moreover, "[t]he Supreme Court has never held that a trial court's failure to provide separate trials on different charges implicates a defendant's right to due process." Hollie v. Hedgpeth, 456 Fed.Appx. 685, 685 (9th Cir. 2011).
Although Petitioner provides numerous federal appellate cases to support his argument, none are relevant simply because they are not Supreme Court cases. (ECF Nos. 1, 21 at 37-48, 6-8). The only Supreme Court precedent Petitioner provides is a footnote in United States v. Lane, 474 U.S. 438 (1986). (ECF Nos. 1, 21 at 43, 6). Petitioner cites footnote 8 in Lane for the proposition that "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." (ECF No. 1 at 44). Petitioner's argument, however, fails as the Ninth Circuit has "found that the statement in Lane regarding when misjoinder rises to the level of constitutional violation was dicta[.]" Runningeagle v. Ryan, 686 F.3d 758, 776 (9th Cir. 2012). Consequently, the Lane decision is not "`clearly established Federal law' sufficient to support a habeas challenge under § 2254." Id. at 777.
Accordingly, the Court
Petitioner raises two separate issues under claim two. Petitioner contends that the evidence presented at trial was insufficient to prove criminal street gang allegation pursuant to California Penal Code § 186.22(b)(1).
As will be discussed below, the insufficiency of evidence claim requires only a procedural default analysis while the improperly admitted evidence claim requires both a procedural default analysis and an analysis on the merits.
Petitioner raised both claims in his habeas petitions to the state superior, appellate, and supreme courts. (ECF Nos. 16-43, 16-45, 16-47). Both the superior and appellate courts denied Petitioner's claims on the merits. (ECF Nos. 16-44, 16-46). The California Supreme Court denied the petition without comment or citation to authority. (ECF No. 16-48). Accordingly, this Court must again "look through" to the state appellate court's order denying the claims as the basis for authority. Ylst, 501 U.S. at 805-06. That court wrote:
(ECF No. 16-46).
Under the procedural default doctrine, federal habeas review of a federal claim "is barred unless the petitioner can demonstrate cause for procedural default and actual prejudice, or demonstrate that the failure to consider the claims will result in a fundamental miscarriage of justice." Bennett v. Mueller, 322 F.3d 573, 580 (9th Cir. 2003) (internal quotations omitted).
The procedural default doctrine prohibits federal court review of state court rulings where: (1) the petitioner violated an applicable state procedural rule, Coleman, 501 U.S. at 750; (2) the procedural violation is "an adequate and independent state law basis on which the state court can deny" petitioner's federal constitutional claim, Bennett, 322 F.3d at 580; (3) the highest state court "clearly and expressly rel[ied]" on the procedural default, Coleman, 501 U.S. at 735; and (4) the state "adequately ple[a]ds the existence of an independent and adequate state procedural ground as an affirmative defense," Bennett, 322 F.3d at 586.
If the state adequately pleads the affirmative defense, "the burden to place that defense in issue shifts to the petitioner." Id. "The petitioner may satisfy this burden by asserting factual allegations that demonstrate the inadequacy of the state procedure, including citation to authority demonstrating inconsistent application of the rule." Id.
Here, Respondent has plead procedural default as an affirmative defense to Petitioner's insufficiency of evidence claim. (ECF No. 15-1 at 18-19). Respondent observes the court of appeal held that Petitioner's "sufficiency-of-the-evidence claim w[as] not cognizable in habeas corpus proceedings under California law." (Id. at 19).
The court of appeal clearly and expressly relied on In re Reno which reiterated the Lindley rule. (ECF No. 16-46 at 1). See Carter v. Giurbino, 385 F.3d 1194, 1196 (9th Cir. 2004) ("Lindley stands for the California rule that a claim of insufficiency of evidence can only be considered on direct appeal, not in the habeas proceedings."). Additionally, Respondent stated that the Lindley rule is "adequate and independent," citing Carter. (ECF No. 15-1 at 20). See Carter, 385 F.3d at 1196 ("Because the California Supreme Court actually relied on Lindley, an independent and adequate state procedural bar, the district court correctly held that Carter's sufficiency of the evidence claims were procedurally defaulted."). Absent from the Petition are any arguments or allegations that attempt to demonstrate: (1) the inadequacy of the rule; (2) the inconsistent application of the rule; (3) that there is cause and prejudice for the default; or (4) that the failure to consider the claim will result in a fundamental miscarriage of justice.
Because Respondent has shown that the highest state court clearly and expressly relied on the Lindley rule as an adequate and independent state ground to bar Petitioner's federal constitutional claim, Respondent has satisfied the burden of adequately pleading procedural default as an affirmative defense. Further, because Petitioner failed to demonstrate that the bar is inadequate or inconsistently applied, that there is cause and prejudice for the default, or that there is a fundamental miscarriage of justice, Petitioner has not satisfied his burden to overcome the affirmative defense.
Accordingly, the Court
Respondent has plead procedural default as an affirmative defense to Petitioner's improper admission of evidence claim. (ECF No. 15-1 at 18-19). The court of appeal held that Petitioner's admissibility-of-evidence claim is not cognizable because habeas corpus does not extend to reviewing questions concerning the admissibility of evidence. (ECF No. 16-46 at 1). The court of appeal cited In re Harris and In re Lindley. (Id.). Respondent claims that, under In re Harris and In re Lindley, this bar is "adequate and independent" citing Carter. (Id.). Beyond citing Carter, Respondent does not demonstrate this bar is actually adequate and independent.
As discussed above, Carter only held that the Lindley rule regarding insufficiency of evidence was an independent and adequate procedural state bar. See Carter, 385 F.3d at 1196 ("Because the California Supreme Court actually relied on Lindley, an independent and adequate state procedural bar, the district court correctly held that Carter's sufficiency of the evidence claims were procedurally defaulted."). Carter does not hold that the procedural state bar for claims of admissibility of evidence is an adequate and independent state procedural ground.
Accordingly, Respondent has failed to prove the independent and adequate elements of the procedural default doctrine, and therefore fails to adequately plead procedural default for Petitioner's improperly admitted evidence claim. Accordingly, the Court will next address the merits of the claim.
"Under AEDPA, even clearly erroneous admissions of evidence that render a trial fundamentally unfair may not permit the grant of federal habeas corpus relief if not forbidden by `clearly established Federal law, as laid out by the Supreme Court." Holley, 568 F.3d at 1101 (quoting 28 U.S.C. § 2254(d)). "If there is no Supreme Court precedent that controls a legal issue raised by a petitioner in state court, the state court's decision cannot be contrary to, or an unreasonable application of, clearly-established federal law." Stevenson, 384 F.3d at 1071.
"The Supreme Court has made very few rulings regarding the admission of evidence as a violation of due process" and "has not yet made a clear ruling that admission of irrelevant or overtly prejudicial evidence constitutes a due process violation sufficient to warrant issuance of the writ." Holley, 568 F.3d at 1101 (quoting 28 U.S.C. § 2254(d)). Additionally, the Supreme Court has not held that due process is violated by "the admission of expert testimony concerning an ultimate issue to be resolved by the trier of fact." Moses v. Payne, 555 F.3d 742, 761-62 (9th Cir. 2009); see also Briceno v. Scribner, 555 F.3d 1069, 1078 (9th Cir. 2009) ("Our recent decision in Moses forecloses" the claim that trial court deprived petitioner of due process and fair trial when it admitted a gang expert's testimony that crimes in question were gang-related, "as it holds that there is no clearly established constitutional right to be free of an expert opinion on an ultimate issue."), overruled on other grounds as recognized in, Emery v. Clark, 643 F.3d 1210, 1215 (9th Cir. 2011).
Because of the absence of Supreme Court precedent controlling the legal issue raised by Petitioner in state court, the state court's ruling was not contrary to, or an unreasonable application of, clearly established Federal law.
Accordingly, the Court
Petitioner contends in claim three that he received ineffective assistance of counsel because his trial counsel: (1) failed to consult an expert toxicologist; (2) failed to object to the admission of a text message into evidence; and (3) failed to call certain witnesses. (ECF No. 1 at 53-56).
Petitioner raised claim three in his habeas petitions to the state superior, appellate, and supreme courts. (ECF Nos. 16-43, 16-45, 16-47). Both the superior and appellate courts denied Petitioner's claim on the merits. (ECF Nos. 16-44, 16-46). The California Supreme Court denied the petition without comment or citation to authority. (ECF No. 16-48). Accordingly, this Court again "looks through" to the state appellate court's order denying the claims as the basis for authority. Ylst, 501 U.S. at 805-06. That court wrote:
(ECF No. 16-46 at 2).
The clearly established United States Supreme Court law governing ineffective assistance of counsel claims is set forth in Strickland v. Washington, 466 U.S. 668 (1984). See Baylor v. Estelle, 94 F.3d 1321, 1323 (9th Cir. 1996) (stating that Strickland "has long been clearly established federal law determined by the Supreme Court of the United States"). In order to be granted habeas relief for a claim of ineffective assistance of counsel, Petitioner must show both that "[1] his counsel provided deficient assistance and [2] that there was a prejudice as a result." Richter, 562 U.S. at 104. "[A] court need not determine whether counsel's performance was deficient before examining the prejudice suffered by the defendant as a result of the alleged deficiencies." Strickland, 466 U.S. at 697. "If it is easier to dispose of an ineffectiveness claim on the ground of lack of sufficient prejudice, which we expect will often be so, that course should be followed." Id.
To establish deficient performance, Petitioner "must show that `counsel's representation fell below an objective standard of reasonableness.'" Richter, 562 U.S. at 104 (2011) (quoting Strickland, 466 U.S. at 688). "A court considering a claim of ineffective assistance must apply a `strong presumption' that counsel's representation was within the `wide range' of reasonable professional assistance." Id. "The [Petitioner]'s burden is to show `that counsel made errors so serious that counsel was not functioning as the "counsel" guaranteed the defendant by the Sixth Amendment.'" Id. at 104 (quoting Strickland, 466 U.S. at 687).
"With respect to prejudice, [Petitioner] must demonstrate `a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine the confidence in the outcome.'" Id. at 104 (quoting Strickland, 466 U.S. at 694). "It is not enough `to show that the errors had some conceivable effect on the outcome of the proceeding.'" Id. (quoting Strickland, 466 U.S. at 693). "Counsel's errors must be `so serious as to deprive the defendant of a fair trial, a trial whose result is reliable.'" Id. (quoting Strickland, 466 U.S. at 687). Consequently, "a court making the prejudice inquiry must ask if the [Petitioner] has met the burden of showing that the decision reached would reasonably likely have been different absent the errors." Strickland, 466 U.S. at 696. "In making this determination, a court hearing an ineffectiveness claim must consider the totality of the evidence before the judge or jury." Id. at 695.
Petitioner argues that, because three of the state's witnesses (Raymundo Hernandez, Jesus Vargas, and Merith Duenas) testified to using drugs, trial counsel's failure to obtain an expert toxicologist to testify to the drug's cognitive effects rendered trial counsel ineffective. (ECF No. 1 at 53-54). Furthermore, Petitioner argues expert toxicologist testimony was necessary to "make clear why there were so many inconsistencies and the credibility, if any, of the [state's] witnesses." (Id. at 54). Petitioner alleges the absence of an expert toxicologist "allowed [the] prosecutor to present uncontested testimony, which deprived petitioner of effective assistance of counsel and due process." (Id.).
The record neither supports Petitioner's allegation that these witnesses presented uncontested testimony, nor does it demonstrate a necessity for an expert to explain the impact drugs and alcohol had on the state's witnesses. In fact, Jesus Vargas explicitly testified on direct examination that his inability to remember what happened on the night of the shooting was because he was drunk. (ECF No. 16-25 at 148). On more than one occasion during cross examination, Petitioner's trial counsel elicited testimony from Vargas that, while he did not know how much he drank, his inability to remember many of the details from the night was because he was "pretty wasted." (Id. at 783-788). Merith Duenas testified regarding the impact ecstasy has on her. (ECF No. 16-24 at 411-412). Raymundo Hernandez was questioned on both direct and cross examination about his drug use and inconsistencies in the statements he made at trial with statements that he made before trial. (ECF No. 16-27 at 142, 186).
As such, trial counsel's failure to call an expert toxicologist is not deficient performance as the jury would have been capable of evaluating the witnesses' testimony without an expert's opinion. Even assuming Petitioner did establish deficient performance, Petitioner fails to demonstrate, in light of the testimony from Hernandez, Vargas, and Duenas, a reasonable probability that an expert toxicologist's testimony would have affected the jury verdict.
Because Petitioner fails to demonstrate both how trial counsel's decision to not obtain the testimony of an expert toxicologist constituted deficient performance and how obtaining such testimony would have changed the result of the proceeding, Petitioner fails to satisfy both prongs of the Strickland test.
Accordingly, the state court's application of clearly established federal law was not objectively unreasonable.
Petitioner argues that failure to object to the introduction of a threatening text message, from Petitioner to Duenas, "rendered counsel ineffective", (ECF Nos. 1, 21 at 54, 11), and "was also prejudicial." (ECF No. 1 at 54). In his Traverse, Petitioner argues "[t]his was a threatening text message and Petitioner was cnvicted [sic] for criminal threats. Counsel's failure to object rendered herself ineffective." (ECF No. 21 at 11).
Respondent argues Petitioner's "contention that Investigator Syzmonik's reference to a threatening text message was grounds for a mistrial is without merit." (ECF No. 15-1 at 27). In doing so, Respondent contends:
(Id.).
Although Investigator Syzmonik testified Duenas was placed in the witness protection program because Duenas received a threatening text message, Investigator Syzmonik did not testify about who sent the message or what the message specifically said. (ECF. No. 16-22 at 154-156). Assuming the failure to object was in error, Petitioner fails to demonstrate that but for counsel's failure to object, the result of the proceeding would have been different. Petitioner has failed to establish how mention of the text message, without mentioning that Petitioner sent the text or the contents of the text, prejudiced Petitioner.
Because Petitioner has not demonstrated a reasonable probability that the result of the proceeding would have been different if trial counsel had objected to the testimony, Petitioner has failed to satisfy the prejudice prong of the Strickland test.
Accordingly, the state court's application of clearly established federal law was not objectively unreasonable.
Petitioner also claims failure to call two witnesses, Jesus Osorio Ramirez and Cesar Rivera, "rendered counsel ineffective and prejudiced petitioner's defense." (ECF No. 1 at 55). In support of this claim, Petitioner submits declarations from each person. (Id. at 62-66).
Respondent contends this claim should be denied since the state court's rejection of this claim was in accord with and a reasonable application of clearly established federal law. (ECF No. 15-1 at 27). Respondent argues that Petitioner's "self serving assertions fail to meet his burden to overcome the strong presumption that trial counsel's conduct fell within the wide range of reasonable professional assistance." (Id.).
To establish prejudice caused by the failure to call a witness, Petitioner must show that "the witness was likely to have been available to testify; that the witness would have given the proffered testimony; and that the witnesses' testimony would have created a reasonable probability that the jury would have reached a verdict more favorable to the Petitioner." Mitchell v. Ayers, 309 F.Supp.2d 1146, 1155 (N.D.Cal.2004) (citing Alcala v. Woodford, 334 F.3d 862, 872-73 (9th Cir. 2003)).
Petitioner argues that Mr. Ramirez, Petitioner's father, would have impeached Raymundo Hernandez's testimony about events that occurred shortly before the shooting on the February 2009 shooting. As the trial court noted:
(ECF No. 16-44 at 5) (emphasis added).
Additionally, Petitioner fails to satisfy his burden of showing the witness would have given the proffered testimony. Mr. Ramirez's declaration does not state what Petitioner claims Mr. Ramirez would testify about. While the Traverse states Mr. Ramirez would testify that Mr. Ramirez was the "good samaritan who stopped Mr. Hernandez and another from beating Ms. Podhorsky," Mr. Ramirez's declaration does not state that he stopped any altercation. (ECF Nos. 21 at 10, 16-43 at 42). Rather, it states that Mr. Ramirez was "in front of his house" when he saw "[t]he girl who lied on the floor after being kicked and punched various times stood up and ran with everybody else[.]" (ECF No. 16-43 at 42). As such, it cannot be established that Mr. Ramirez would have given the proffered testimony.
In short, the declaration has minimal probative value, if any. Therefore, Petitioner has failed to demonstrate that the testimony would have created a reasonable probability that the jury would have reached a verdict more favorable to Petitioner. Accordingly, because Petitioner has failed to satisfy the prejudice prong of the Strickland test, the state court's application of clearly established federal law was not objectively unreasonable.
Petitioner also argues that Mr. Rivera would have impeached the testimony of Merith Duenas, Leslie Lepe, and Bethany Fletcher. (ECF No. 1 at 55). Mr. Rivera's testimony, Petitioner claims, "would also show that, state witnesses, Bethany Fletcher, Merith Duenas, and Leslie Lepe, fabricated their stories in order to incriminate petitioner." (Id.). Petitioner submitted a declaration from Mr. Rivera. (Id. at 66). The declaration Petitioner submitted to this court and to the court of appeal, however, is not the same declaration he submitted to the state superior court. (ECF Nos. 16-45 at 49, 16-43 at 46). It appears that Petitioner was attempting to cure what the superior court found to be defective in the declaration, such as the date and time of the events described. (ECF No. 16-44 at 5) ("The declaration has no reference to date or time, therefore there is no way of knowing if the event described is the same event in which the domestic violence occurred.").
The description of events in the new declaration expressly contradict the events as described in the first. The first declaration states that "Meredith [sic] walked out of the apartment pulling Rolando by his jean's belt loop. She was being hysterical and threatening about the camera. They made their way to the middle of the street until Rolando threw the camera far away so we could leave while she was getting it." (ECF No. 16-43 at 46). The second declaration states "Rolando came out running from the apartment with Merith chasing behind him and hitting[.] With all the hits Rolando dropped the camera and got into my vehicle and we left. Another person who can declare or be a witness to this is Merith Duenas friend who was running behind both Rolando and Merith." (ECF 1 at 66).
As Petitioner's declarations contradict each other, Petitioner has not met his burden. Petitioner has not shown that: (1) the witness would have given the proffered testimony; and (2) the testimony would have created a reasonable probability that the jury would have reached a verdict more favorable to the Petitioner. Because Petitioner has failed to satisfy the prejudice prong of the Strickland test, the state court's application of clearly established federal law was not objectively unreasonable.
Accordingly, the Court
Petitioner contends in claim four that he received ineffective assistance of counsel on appeal because his appellate counsel did not raise the aforementioned ineffective assistance of trial counsel claims on appeal. (ECF No. 1 at 57-58).
Petitioner raised claim four in his petitions to the state superior, appellate, and supreme courts. (ECF Nos. 16-43, 16-45, 16-47). Both the superior and appellate courts denied Petitioner's claim on the merits. (ECF Nos. 16-33, 16-46). The California Supreme Court denied the petition without comment or citation to authority. (ECF No. 16-48). Accordingly, this Court must "look through" to the state appellate court's order denying the claim as the basis for authority. Ylst, 501 U.S. at 805-06. After analyzing Petitioner's ineffective assistance of trial counsel claim, that court wrote:
(ECF No. 16-46 at 2).
Petitioner contends that he received ineffective assistance of counsel on appeal because his appellate counsel did not raise the aforementioned ineffective assistance of trial counsel claims. (ECF No. 1 at 57-58).
Respondent contends the state court's rejection of this claim was in accord with and a reasonable application of clearly established federal law, and should be denied. (ECF No. 15-1 at 29). Respondent argues appellate counsel could not have been ineffective for failing to raise the complained-of issues on appeal because trial counsel was not ineffective. (Id.).
"[T]o determine whether appellate counsel's failure to raise these claims was objectively unreasonable and prejudicial, we must first assess the merits of the underlying claims that trial counsel provided constitutionally deficient representation." Moormann v. Ryan, 628 F.3d 1102, 1106-1107 (9th Cir. 2010). "If trial counsel's performance was not objectively unreasonable or did not prejudice [Petitioner], then appellate counsel did not act unreasonably in failing to raise a meritless claim of ineffective assistance of counsel, and [Petitioner] was not prejudiced by appellate counsel's omission." Moormann, 628 F.3d at 1107.
As discussed above, trial counsel's performance did not prejudice Petitioner. As such, appellate counsel did not act unreasonably in failing to raise a meritless claim of ineffective assistance of counsel, and Petitioner was not prejudiced by appellate counsel's omission. Therefore, because Petitioner failed to establish the prejudice prong under the Strickland test, the state court's application of clearly established federal law was not objectively unreasonable.
Accordingly, the Court
Petitioner requests an evidentiary hearing. (ECF No. 1 at 15). Petitioner argues an evidentiary hearing is required to explore the issues in this instant petition and failure to order an evidentiary hearing will result in a miscarriage of justice. (Id.). Petitioner contends the hearing is needed to explore the facts and determine if his conviction was obtained through constitutional violations. (ECF No. 21 at 12).
Respondent argues Petitioner's demand for an evidentiary hearing should be denied because Petitioner has not identified what facts are in dispute that an evidentiary hearing would resolve. (ECF No. 15-1 at 29).
A federal court's discretion to hold an evidentiary hearing is governed by 28 U.S.C. § 2254(e)(2), which provides:
"Federal courts sitting in habeas are not an alternative forum for trying facts and issues which a prisoner made insufficient effort to pursue in state proceedings." Williams v. Taylor, 529 U.S. 420, 437 (2000).
Petitioner does not establish that his request relies on a new rule of constitutional law, or a factual predicate that could not have been previously discovered through due diligence. Similarly, Petitioner has not alleged facts that would be sufficient to establish by clear and convincing evidence that but for constitutional error, no reasonable factfinder would have found him guilty of the underlying offense.
Accordingly, the Court
For the foregoing reasons,
