Jose Salud Loya v. Long
Filing
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FINDINGS and RECOMMENDATIONS Recommending Denial of the 1 Petition, signed by Magistrate Judge Sandra M. Snyder on 4/25/15. Referred to Judge O'Neill; 30-Day Deadline. (Verduzco, M)
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UNITED STATES DISTRICT COURT
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EASTERN DISTRICT OF CALIFORNIA
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JOSE SALUD LOYA,
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Petitioner,
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v.
CASE NO. 1:14-CV-0877 LJO-SMS
FINDINGS AND RECOMMENDATIONS
RECOMMENDING DENIAL OF THE
PETITION
DAVID B. LONG, Warden,
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Respondent.
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Petitioner is a state prisoner proceeding pro se and in forma pauperis with a petition for
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writ of habeas corpus pursuant to 28 U.S.C. § 2254. Doc. 1. On August 22, 2014, this Court
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screened the petition and, without addressing the merits, concluded that it was not plain from the
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allegations that Petitioner is not entitled to relief and directed Respondent to file a response. Doc.
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9. Respondent filed an answer addressing the merits of the petition, and Petitioner filed a traverse.
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Docs. 18, 24. For the following reasons, the Court recommends that the petition be denied.
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I.
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BACKGROUND
On November 30, 2009, a City of Parlier police officer conducted a vehicle check after
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seeing Petitioner swerve in his lane and pull off the roadway.1 The officer testified in Petitioner‟s
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jury trial that he asked Petitioner to step outside of the vehicle and Petitioner failed to comply with
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the officer‟s multiple requests to maintain his hands above his head. The officer testified that he
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saw a glass methamphetamine pipe fall to the ground. The officer caused Petitioner to fall to the
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ground and told him he was under arrest. As Petitioner began to stand up, he fired a single shot
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This brief factual background is summarized from the California Court of Appeals opinion.
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from a black revolver in his left hand over his left shoulder towards the officer‟s face. Petitioner
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ran away, into an orchard, and raised his left arm. The officer fired at him. Plaintiff was arrested
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without incident about an hour later.
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Officers found a plastic bag of ammunition in the open area of the vehicle‟s center console.
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They found a plastic bag of marijuana and a loaded pistol inside the center console of the vehicle.
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Another round of ammunition was found under the passenger‟s seat, and more marijuana was
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found in the vehicle‟s body molding for the wheel well. No firearm was found on Petitioner‟s
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person or when officers retraced his steps from the vehicle to the location of arrest and searched a
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swatch on either side. No gunshot residue was found on Petitioner‟s hands or clothing.
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After a jury trial in the Superior Court of Fresno County, Petitioner was convicted of seven
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felony offenses: 1) attempted murder of a peace officer; 2) assault with a firearm upon a peace
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officer; 3-4) possession of a firearm by a convicted felon; 5) possession of ammunition by a
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convicted felon; 6) possession of marijuana for sale; and 7) transportation of more than 28.5 grams
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of marijuana. He was also convicted for one misdemeanor. On August 24, 2011, Petitioner was
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sentenced to a prison term of life with the possibility of parole plus a consecutive twenty-one
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years‟ imprisonment.
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Petitioner pursued a direct appeal of the sentence on the grounds that the judge failed to
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instruct the jury of the unanimity requirement, and that he could not be sentenced to concurrent
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sentences for possession of a firearm and possession of ammunition pursuant to California Penal
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Code Section 654. The California Court of Appeals affirmed the judgment, and the California
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Supreme Court denied review.
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Petitioner also applied for a writ of habeas corpus in the state court on the grounds that
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there was insufficient evidence to convict him of attempted murder of a police officer, and that the
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officer lacked probable cause to remove him from his vehicle. The California Supreme Court
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denied the petition.
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Petitioner filed the pending federal petition for habeas corpus on June 9, 2014. Petitioner
re-alleges the arguments made in his direct appeal and state habeas proceedings.
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II.
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APPLICABLE LAW
Habeas corpus is neither a substitute for a direct appeal nor a device for federal review of
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the merits of a guilty verdict rendered in state court. Jackson v. Virginia, 443 U.S. 307, 332 n. 5
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(1979) (Stevens, J., concurring). Habeas corpus relief is intended to address only “extreme
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malfunctions” in state criminal justice proceedings. Id. Under AEDPA, a petitioner can prevail
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only if he can show that the state court‟s adjudication of his claim:
(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;
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(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.
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28 U.S.C. § 2254(d); Lockyer v. Andrade, 538 U.S. 63, 70-71 (2003); Williams v. Taylor, 529 U.S.
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362, 413 (2000).
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“By its terms, § 2254(d) bars relitigation of any claim „adjudicated on the merits‟ in state court,
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subject only to the exceptions set forth in §§ 2254(d)(1) and (d)(2).” Harrington v. Richter, 562
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U.S. 86, 98 (2011).
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The AEDPA standard is difficult to satisfy since even a strong case for relief does not
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demonstrate that the state court‟s determination was unreasonable. Harrington, 562 U.S. at 102.
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“A federal habeas court may not issue the writ simply because the court concludes in its
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independent judgment that the relevant state-court decision applied clearly established federal law
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erroneously or incorrectly.” Lockyer, 538 U.S. at 75-76. “A state court‟s determination that a
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claim lacks merit precludes federal habeas relief so long as „fairminded jurists could disagree‟ on
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the correctness of the state court‟s decision.” Harrington, 562 U.S. at 101 (quoting Yarborough v.
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Alvarado, 541 U.S. 652, 664 (2004)). Put another way, a federal court may grant habeas relief
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only when the state court‟s application of Supreme Court precedent was objectively unreasonable
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and no fair-minded jurist could disagree that the state court‟s decision conflicted with Supreme
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Court‟s precedent. Williams, 529 U.S. at 411.
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III.
DISCUSSION
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A. Insufficiency of the Evidence and Lack of Probable Cause
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Petitioner‟s first ground for relief is that his attempted murder conviction was not
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supported by sufficient evidence. He argues that the prosecution‟s case rested solely on the police
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officer‟s testimony, and there was no corroborating independent evidence. He argues that there
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was overwhelming evidence in favor of his innocence including the lack of gunshot residue.
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Petitioner submerges a second argument in his first grounds for relief –that the police officer
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lacked probable cause to arrest him, and therefore, the evidence found during the search is
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unconstitutional.
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The California Supreme Court denied the petition citing In re Dixon, 41 Cal. 2d 756, 759
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(Cal. 1953) and In re Lindley, 29 Cal. 2d 709, 723 (Cal. 1947). Dixon bars a convicted defendant
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from bringing his claims in a state habeas petition unless he first pursued the claims on direct
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appeal from his conviction. Dixon, 41 Cal. 2d at 759. Lindley states that “the sufficiency of the
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evidence to warrant the conviction of the petitioner is not a proper issue for consideration” upon
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habeas corpus. Lindley, 29 Cal. 2d at 723.
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Procedural Default
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“A federal habeas court will not review a claim rejected by a state court if the decision of
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[the state] court rests on a state law ground that is independent of the federal question and
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adequate to support the judgment.” Walker v. Martin, 131 S. Ct. 1120, 1127 (2011) (internal
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quotations omitted); Coleman v. Thompson, 501 U.S. 722, 750 (1991). To preclude federal
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review, the state court must have clearly and expressly disposed of the claim based on a
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procedural bar. Harris v. Reed, 489 U.S. 255, 261-62 (1989).
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The Ninth Circuit has begun to recognize the Dixon rule as an adequate and independent
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procedural rule, which would preclude federal review. E.g., McKinney v. Kane, 279 Fed. Appx.
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450, 451 (9th Cir. Cal. 2008)(“The district court did not err in holding that [Dixon] is an
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independent and adequate state ground […].”); Flores v. Roe, 228 Fed. Appx. 690, 691 (9th Cir.
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2007) (“we agree with the district court that [Dixon] barred Petitioner‟s Confrontation Clause
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argument because Petitioner failed to raise this argument in his direct appeal”). Several district
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courts in the Ninth Circuit have also recognized the Dixon bar as an adequate and independent
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procedural rule, precluding federal review. E.g., Richardson v. Curry, 2015 U.S. Dist. LEXIS
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30724, *6-7 (N.D. Cal. Mar. 11, 2015); Prera v. Paramo, 2014 U.S. Dist. LEXIS 180110, *16
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(C.D. Cal. Dec. 9, 2014); Payne v. Lewis, 2013 U.S. Dist. LEXIS 103034, *17 (E.D. Cal. July 22,
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2013); Lee v. Mitchell, 2012 U.S. Dist. LEXIS 83503, *51 (C.D. Cal. May 1, 2012).
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These cases cite to Bennett v. Mueller, 322 F.3d 573 (9th Cir. 2003), which suggested that
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the Dixon rule would constitute an independent and adequate state grounds, and established a
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burden-shifting analysis to determine whether a rule is adequate to bar federal review. Bennett v.
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Mueller, 322 F.3d 573, 585-586 (9th Cir. 2003). “[O]nce the state has adequately pled the
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existence of an independent and adequate state procedural ground as an affirmative defense, the
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burden to place that defense in issue shifts to the petitioner. The petitioner may satisfy this burden
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by asserting specific factual allegations that demonstrate the inadequacy of the state procedure,
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including citation to authority demonstrating inconsistent application of the rule.” Id. at 586.
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Pursuant to their analyses under Bennett, they found the Dixon rule to be independent and
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adequate, thus precluding federal review.
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Accordingly, this Court will follow the Ninth Circuit and its district courts, and find that
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the state has adequately pled that the Dixon rule is an independent and adequate state ground, and
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the instant petition based on the grounds raised in Petitioner‟s state habeas proceedings is
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procedurally defaulted. Petitioner has not asserted factual allegations demonstrating inconsistent
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application of the Dixon rule. Neither has Petitioner shown that failure to consider his
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insufficiency of evidence claim will result in a fundamental miscarriage of justice. Thus, this
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Court will not review these claims raised in Petitioner‟s state habeas proceeding because the
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California Supreme Court clearly and expressly disposed of the claim on a state law procedural
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ground that is independent of the federal question and adequate to support the judgment.
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Petitioner‟s federal habeas petition based on insufficiency of the evidence and lack of probable
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cause is procedurally barred from review.
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In addition, Petitioner‟s insufficiency of the evidence claim was further barred by Lindley,
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which the Ninth Circuit has explicitly recognized as an independent and adequate state law
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grounds which precludes federal review. Carter v. Giurbino, 385 F.3d 1194, 1198 (9th Cir. 2004).
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The Lindley rule states that the sufficiency of the evidence is not a proper consideration upon
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habeas corpus. In re Lindley, 29 Cal. 2d 709, 723 (Cal. 1947).
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To the extent that Petitioner raises ineffective assistance of counsel on appeal in his
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traverse, this claim has not been exhausted and cannot be heard by this Court. See 28 U.S.C. §
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2254(b)(1)(A) (habeas relief may not be granted unless “the applicant has exhausted the remedies
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available in the courts of the State,” or an exception applies); Baldwin v. Reese, 541 U.S. 27, 29
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(2004) (A petitioner satisfies the exhaustion requirement by fairly presenting his claims to the
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highest state court before presenting them to the federal court.).
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B. Duplicate Sentences
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Petitioner‟s third ground for relief is that he was unconstitutionally subjected to multiple
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sentences for the same offence in violation of the double jeopardy and due process clauses of the
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Fifth Amendment. He argues that he should not have been sentenced for the separate crimes for
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possession of a firearm by a convicted felon and possession of ammunition by a convicted felon
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because they are the same act when the ammunition is found inside of the firearm. He further
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argues that the record does not support a finding that the jury based its verdict on ammunition
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other than that found in the gun. The appeals court found that, under California Penal Code section
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654, Petitioner was properly convicted of two separate acts because the jury found that he
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possessed two different loaded firearms, one of which was found inside the center console of the
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vehicle, and two additional calibers of ammunition, one of which was also found in the open area
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of the center console.
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An application for a writ of habeas corpus in a federal district court by a person in custody
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under a judgment of a state court is only available to address violations of the Constitution or laws
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of the United States. 28 U.S.C. § 2254(a). A federal writ is not available for alleged error in the
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interpretation or application of state law. Estelle v. McGuire, 502 U.S. 62, 67-68 (1991) (“it is not
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the province of a federal habeas court to reexamine state-court determinations on state-law
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questions.”).
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A habeas petitioner may not transform a state-law issue into a federal one merely by
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asserting a violation of due process. Langford v. Day, 110 F.3d 1380, 1389 (9th Cir. 1996). A
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mere error of state law is not a denial of due process. Rivera v. Illinois, 556 U.S. 148, 158
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(2009)(citing Engle v. Isaac, 456 U.S. 107, 121, n. 21 (1982)). Rather, petitioner must show that
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the decision of the California Court of Appeal somehow “violated the Constitution, laws, or
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treaties of the United States.” Little v. Crawford, 449 F.3d 1075, 1083 (9th Cir. 2006) (quoting
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Estelle, 502 U.S. at 68). The Due Process Clause “safeguards not the meticulous observance of
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state procedural prescriptions, but „the fundamental elements of fairness in a criminal trial.‟” Id.
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(quoting Spencer v. Texas, 385 U.S. 554, 563-564 (1967).
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California Penal Code Section 654 provides that a single act shall not be punished under
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more than one provision. Cal. Pen. Code § 654(a); People v. Jones, 54 Cal. 4th 350, 353 (Cal.
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2012). The California Supreme Court has found that possession of a loaded handgun is a single
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act, which is not subject to imposition punishment for both unlawful possession of a firearm and
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unlawful possession of ammunition. People v. Lopez, 119 Cal. App. 4th 132, 138 (Cal. App.
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2004). Here, Petitioner‟s argument turns on whether he could be properly convicted of two
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separate acts by possessing two firearms and two additional sets of ammunition apart from the
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ammunition contained in those firearms. Hence, the instant petition seeks review of a state law and
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does not raise a federal question. As discussed above, a federal writ is not available for alleged
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error in the interpretation or application of state law. Estelle v. McGuire, 502 U.S. 62, 67-68
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(1991). Petitioner does not present a constitutional issue cognizable under 28 U.S.C. § 2254 and is
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not appropriate for federal habeas review.
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Furthermore, the Court of Appeals clearly and reasonably argued that the record contained
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substantial evidence supporting a finding that Petitioner committed the distinct act of unlawfully
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possessing ammunition apart from ammunition loaded into a firearm, of which the jury convicted
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him. The jury found that he had possessed a handgun on his person, and a second handgun inside
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the vehicle‟s center console. Therefore, the appellate court reasonably found that there was no
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evidence from which the jury could have concluded that he possessed some but not all of the
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ammunition found in the vehicle. The appellate court‟s finding that Petitioner‟s possession of a
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firearm by a convicted felon and possession of ammunition by a convicted felon were discrete
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acts, and the determination that sentences for both acts was permissible, was reasonable. The
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Court of Appeals decision was not contrary to, or involved an unreasonable application of, clearly
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established Federal law. Therefore, the petition should also be denied on this ground.
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C. Erroneous Jury Instruction
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Petitioner‟s second ground for relief is that the trial court failed to instruct the jury of the
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unanimity requirement regarding the ammunition possession. The trial court erroneously
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instructed the jury that they did not need to unanimously agree on which specific ammunition
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Petitioner possessed, but that it was sufficient for them each to find possession of any ammunition
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in order to convict him. The appeals court agreed that the trial court had an obligation to give the
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unanimity instruction in connection with the ammunition possession charge, but that error was
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harmless beyond a reasonable doubt. Based on California precedent, the appeals court found that
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the jury would have convicted Petitioner of possession of any of the various ammunition found in
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the vehicle. The jury had rejected Petitioner‟s defense that some other person had access to the
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vehicle and found him guilty of possession of all items of contraband inside the vehicle, including
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marijuana and a firearm in the center console, and marijuana found in the wheel well. Therefore,
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the jury could not have found that Petitioner possessed some, but not all of the ammunition found
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in the vehicle.
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Errors in jury instructions are subject to harmless error analysis and do not merit habeas
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relief unless such error had a substantial and injurious effect or influence in determining the jury‟s
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verdict. Hedgpeth v. Pulido, 555 U.S. 57, 61-62 (2008). The erroneous instruction must have been
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“by itself so infected the entire trial that the resulting conviction violates due process.” Cupp v.
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Naughten, 414 U.S. 141, 147 (1973).
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Here, the appeals court‟s determination that the instructional omission was harmless
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beyond a reasonable doubt was not based on an unreasonable determination of the facts. The jury
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clearly convicted Petitioner of possession of all the different contraband items found in various
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places in the vehicle. The appeals court reasonably found that the jury would have convicted him
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of possession of any of the specific ammunition found inside of the vehicle, and the verdict would
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be unaffected if the unanimity instruction was given. Thus, the erroneous instruction did not result
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in a conviction that violates due process. The state court adjudication does not conflict with and
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was not based on an unreasonable application of clearly established federal law. Hence, the
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petition should be denied on this ground.
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IV.
CERTIFICATE OF APPEALABILITY
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For the reasons set forth above, Petitioner has not shown “that jurists of reason would find
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it debatable whether the petition states a valid claim of the denial of a constitutional right [or] that
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jurists of reason would find it debatable whether the district court was correct in its procedural
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ruling.” Slack v. McDaniel, 529 U.S. 473, 484 (2000). Hence, the Court should decline to issue a
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certificate of appealability.
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V.
RECOMMENDATION
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Based on the foregoing, it is RECOMMENDED that:
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1. The petition for writ of habeas corpus be DENIED;
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2. Judgment be ENTERED for Respondent; and
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3. The Court DECLINE to issue a certificate of appealability.
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These findings and recommendations are submitted to the Honorable Lawrence J. O‟Neill,
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United States District Court Judge, pursuant to the provisions of 28 U.S.C. § 636(b)(1)(B) and
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Rule 72-304 of the Local Rules of Practice for the United States District Court, Eastern District of
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California. Within thirty (30) days after being served with a copy, Petitioner may file written
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objections with the Court, serving a copy on all parties. Such a document should be captioned
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“Objections to Magistrate Judge‟s Findings and Recommendations.” The Court will then review
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the Magistrate Judge‟s ruling pursuant to 28 U.S.C. § 636(b)(1)(C). The parties are advised that
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failure to file objections within the specified time may waive the right to appeal the District
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Court‟s order. Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991).
IT IS SO ORDERED.
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Dated:
April 25, 2015
/s/ Sandra M. Snyder
UNITED STATES MAGISTRATE JUDGE
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