Gutierrez v. Lackner

Filing 16

FINDINGS and RECOMMENDATION Regarding Petition for Writ of Habeas Corpus, signed by Magistrate Judge Michael J. Seng on 12/7/16: 30-Day Deadline. (Hellings, J)

1
2
3
4
5
6
7
IN THE UNITED STATES DISTRICT COURT

8

FOR THE EASTERN DISTRICT OF CALIFORNIA

9
10
11
12

Case No. 1:14-cv-01834 DAD MJS (HC)
SALVADOR FERNANDO
GUTIERREZ,

FINDINGS AND RECOMMENDATION
REGARDING PETITION FOR WRIT OF
Petitioner, HABEAS CORPUS

13
14

v.

15
16

HEIDI LACKNER, Warden,

17

Respondent.

18
19
20

Petitioner is a state prisoner proceeding pro se with a petition for writ of habeas

21

corpus pursuant to 28 U.S.C. § 2254. Respondent, Heidi Lackner, warden of Sierra

22

Conservation Center in Jamestown, California, is hereby substituted as the proper

23

named respondent pursuant to Rule 25(d) of the Federal Rules of Civil Procedure.

24

Respondent is represented by Daniel B. Bernstein of the office of the Attorney General.

25

I.

Procedural Background

26

Petitioner is currently in the custody of the California Department of Corrections

27

pursuant to a judgment of the Superior Court of California, County of Kern, following his

28

conviction by jury trial on June 30, 2010, of attempted murder, first degree burglary,
1

1

possession of a firearm by a felon, receiving stolen property, and various enhancements.

2

(Clerk's Tr. at 359-60.) On May 20, 2011, Petitioner was sentenced to a determinate

3

term of twenty-six (26) years and eight months in prison, and an additional indeterminate

4

term of twenty-five (25) years to life. (Id.)

5

Petitioner filed a direct appeal with the California Court of Appeal, Fifth Appellate

6

District, which, but for staying the sentence on the burglary conviction and fixing clerical

7

errors, affirmed the judgment on January 8, 2013. (Lodged Docs. 1-4.) Petitioner sought

8

review from the California Supreme Court. (Lodged Docs. 5-6.) The California Supreme

9

Court denied review on April 17, 2013. (Id.)

10

Petitioner proceeded to file collateral challenges to his conviction in state court in

11

the form of petitions for writ of habeas corpus. Petitioner filed a petition with the Kern

12

County Superior Court. The court denied the petition in a reasoned opinion on July 14,

13

2014. (Lodged Docs. 7-8.) He then filed a petition for writ of habeas corpus with the Fifth

14

District Court of Appeal. The court denied the petition in a summary decision on August

15

7, 2014. (Lodged Docs. 9-10.) Finally, Petitioner filed a petition for writ of habeas corpus

16

with the California Supreme Court. The court denied the petition in a summary decision

17

on November 12, 2014. (Lodged Docs. 11-12.)

18

On November 21, 2014 Petitioner filed the instant federal habeas petition. (Pet.,

19

ECF No. 1.) Petitioner presented two claims for relief in the petition, however the second

20

claim included several different theories. Petitioner asserted: (1) that he was denied the

21

right to present a complete defense based on the trial court’s failure to instruct the jury

22

on self-defense with regard to the criminal charge of possession of a firearm by a felon

23

and; (2) that defense counsel provided ineffective assistance by (a) failing to refute the

24

gunshot residue evidence, (b) failing to obtain phone records, and (c) failing to present a

25

ballistics expert. (Id.)

26

Respondent filed an answer to the petition on January 30, 2015. (ECF No. 11.)

27

Petitioner filed a reply on February 23, 2015. (ECF No. 13.) The matter stands ready for

28

adjudication.
2

1

II.

Statement of the Facts1

2

FACTUAL AND PROCEDURAL HISTORIES

3

On October 29, 2009, police received a report of a shooting at 2210
San Felice Way in Delano, the home of Brenda Cadiz and her husband
Melecio Cadiz. Brenda's brother, Joejo Raquinio, lived with her. Officers
found Brenda lying in a neighboring driveway with one gunshot wound to
the head and three to the left arm. She and Raquinio told the officers that
a man had come to the house saying he was seeking a job with Melecio.
When he was told there were no jobs, he forced his way into the house,
produced a gun, and shot Brenda repeatedly. Raquinio and the man
struggled; the man hit Raquinio in the head with the gun, and Raquinio hit
the man over the head with a vase. The man fled on foot. He had once
worked for the family. Raquinio and Brenda knew him as Fernando.

4
5
6
7
8
9

Following a trail of drops of blood, the officers tracked Gutierrez to
2222 Ruffion Court, a block away, where they found him hiding in a shed,
bleeding, in the back yard. With him in the shed were some pieces of
jewelry and a glass smoking pipe. Brenda and her daughter, Kaelah
Cadiz, identified Gutierrez as the man who had been at the house.

10
11
12

The officers took a set of car keys from Gutierrez. They found his
car, which was parked a short distance from Brenda's house, and
searched it pursuant to a warrant. Inside was a gym bag containing 100 to
150 pieces of jewelry and some baseball memorabilia. Some of the
jewelry and the baseball memorabilia had been reported stolen from a
home in Visalia. On the roof of the house at 2214 Ruffion Court, two
houses south of the shed where Gutierrez was hiding, the officers found a
.32-caliber revolver with four spent shell casings in the cylinder.

13
14
15
16

22

The district attorney filed an information charging Gutierrez with six
counts: (1) attempted murder of Brenda (§§ 187, 664); (2) assault of
Brenda with a firearm (§ 245, subd. (a)(2)); (3) first degree burglary (§
460, subd. (a)); (4) being a felon in possession of a firearm (former §
12021, subd. (a)(1));[fn2] (5) receiving stolen property (§ 496, subd. (a));
and (6) assault of Raquinio with a firearm (§ 245, subd. (a)(2)). For
sentence-enhancement purposes, the information alleged that Gutierrez
used a firearm in committing the offenses in counts 1, 2 and 6. (§§
12022.5, subd. (a)(1); 12022.53, subd. (d).) The information also alleged
that Gutierrez had one prior strike conviction for purposes of the Three
Strikes Law (§§ 667, subds. (c)-(j), 1170.12, subds. (a)-(e)) and four prior
convictions resulting in prison terms (§ 667.5, subd. (b)).

23

FN2: This statute now appears at section 29800, subdivision (a).

24

Gutierrez testified at trial, contradicting the account given by the
victims. In his version, he was a methamphetamine dealer and Melecio
Cadiz was his supplier. In the past, Melecio had accepted payment for
methamphetamine in the form of jewelry and electronic devices.
Sometimes Brenda chose the pieces.

17
18
19
20
21

25
26
27
28

1

The Fifth District Court of Appeal’s summary of the facts in its January 8, 2013 opinion is presumed
correct. 28 U.S.C. § 2254(e)(1).

3

1

Gutierrez came to the Cadizes' house on October 29, 2009, to
show Brenda jewelry. They sat in her car and smoked some
methamphetamine, and then went in the house to look at the jewelry.
Gutierrez set out some pieces on a coffee table in the living room while
Brenda talked on the phone in the kitchen. Raquinio came into the living
room and looked at the jewelry. He offered Gutierrez $250 for some rings,
including a Kansas City Royals American League Championship ring, but
Gutierrez wanted $500. Raquinio became angry and pulled out a pistol.

2
3
4
5

Gutierrez gathered up the jewelry and tried to leave, but Brenda
shut the door as Raquinio hit Gutierrez on the head with a vase. Gutierrez
fell and Raquinio pointed the gun at him. Gutierrez tried to take the gun
from Raquinio and, as they struggled, the gun went off twice and Brenda
was shot. Then Gutierrez passed out. When he regained consciousness,
Brenda and Raquinio had left the room.

6
7
8
9

Gutierrez tried to flee through the back door but encountered
Raquinio, who still had the gun, in the laundry room. Gutierrez tried to take
the gun again, succeeding this time. The gun went off two more times as
the two men fought. Raquinio continued to struggle, so Gutierrez hit him
on the head with the gun in self-defense. Gutierrez then fled the house.
He threw the gun away because he feared the police would shoot him if
they saw him with it. In the street, people looked at him in a way he felt
was accusatory. He hid in the shed because he was afraid. Then he lost
consciousness again. He was in possession of the property stolen from
Visalia because someone gave it to him to pay for methamphetamine.

10
11
12
13
14

The jury rejected Gutierrez's story and found him guilty of counts 1,
3, 4, 5, and 6. Following the court's instructions, it returned no verdict on
count 2 because it was a lesser offense included in count 1. The jury also
found true the firearm allegations for counts 1 and 6. The court found true
two of the prior-prison-term allegations and the prior-strike allegation.

15
16
17

People v. Gutierrez, 2013 Cal. App. Unpub. LEXIS 114, 2-9 (Cal. App. Jan. 8, 2013).
18
III.

Discussion

19
A.

Jurisdiction

20
Relief by way of a petition for writ of habeas corpus extends to a person in
21
custody pursuant to the judgment of a state court if the custody is in violation of the
22
Constitution or laws or treaties of the United States. 28 U.S.C. § 2254(a); 28 U.S.C. §
23
2241(c)(3); Williams v. Taylor, 529 U.S. 362, 375 fn.7 (2000). Petitioner asserts that he
24
suffered violations of his rights as guaranteed by the U.S. Constitution.

(Pet.)

In

25
addition, the conviction challenged arises out of the Kern County Superior Court, which
26
is located within the jurisdiction of this court. 28 U.S.C. § 2241(d); 2254(a). Accordingly,
27
this Court has jurisdiction over the instant action.
28
4

1

B.

Legal Standard of Review

2

On April 24, 1996, Congress enacted the Antiterrorism and Effective Death

3

Penalty Act of 1996 (“AEDPA”), which applies to all petitions for writ of habeas corpus

4

filed after its enactment. Lindh v. Murphy, 521 U.S. 320, 326 (1997); Jeffries v. Wood,

5

114 F.3d 1484, 1499 (9th Cir. 1997). The instant petition was filed after the enactment

6

of the AEDPA and is therefore governed by AEDPA provisions.

7

Under AEDPA, a person in custody under a judgment of a state court may only be

8

granted a writ of habeas corpus for violations of the Constitution or laws of the United

9

States. 28 U.S.C. § 2254(a); Williams, 529 U.S. at 375 n. 7. Federal habeas corpus

10

relief is available for any claim decided on the merits in state court proceedings if the

11

state court's adjudication of the claim:

12
13
14
15
16
17

(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).
1.

Contrary to or an Unreasonable Application of Federal Law

18

A state court decision is "contrary to" federal law if it "applies a rule that

19

contradicts governing law set forth in [Supreme Court] cases" or "confronts a set of facts

20

that [are] materially indistinguishable from [a Supreme Court case] but reaches a

21

different result." Brown v. Payton, 544 U.S. 133, 141 (2005) (citing Williams, 529 U.S. at

22

405-06). "AEDPA does not require state and federal courts to wait for some nearly

23

identical factual pattern before a legal rule must be applied . . . The statute recognizes . .

24

. that even a general standard may be applied in an unreasonable manner." Panetti v.

25

Quarterman, 551 U.S. 930, 953 (2007) (citations and quotation marks omitted). The

26

"clearly established Federal law" requirement "does not demand more than a ‘principle'

27

or ‘general standard.'" Musladin v. Lamarque, 555 F.3d 830, 839 (2009). For a state

28

decision to be an unreasonable application of clearly established federal law under §
5

1

2254(d)(1), the Supreme Court's prior decisions must provide a governing legal principle

2

(or principles) to the issue before the state court. Lockyer v. Andrade, 538 U.S. 63, 70-

3

71 (2003). A state court decision will involve an "unreasonable application of" federal

4

law only if it is "objectively unreasonable." Id. at 75-76 (quoting Williams, 529 U.S. at

5

409-10); Woodford v. Visciotti, 537 U.S. 19, 24-25 (2002). In Harrington v. Richter, the

6

Court further stresses that "an unreasonable application of federal law is different from

7

an incorrect application of federal law." 131 S. Ct. 770, 785 (2011) (citing Williams, 529

8

U.S. at 410) (emphasis in original). "A state court's determination that a claim lacks

9

merit precludes federal habeas relief so long as ‘fairminded jurists could disagree' on the

10

correctness of the state court's decision." Id. at 786 (citing Yarborough v. Alvarado, 541

11

U.S. 653, 664 (2004)). Further, "[t]he more general the rule, the more leeway courts

12

have in reading outcomes in case-by-case determinations." Id.; Renico v. Lett, 130 S.

13

Ct. 1855, 1864 (2010). "It is not an unreasonable application of clearly established

14

Federal law for a state court to decline to apply a specific legal rule that has not been

15

squarely established by this Court." Knowles v. Mirzayance, 129 S. Ct. 1411, 1419

16

(2009) (quoted by Richter, 131 S. Ct. at 786).

17

2.

Review of State Decisions

18

"Where there has been one reasoned state judgment rejecting a federal claim,

19

later unexplained orders upholding that judgment or rejecting the claim rest on the same

20

grounds." See Ylst v. Nunnemaker, 501 U.S. 797, 803 (1991). This is referred to as the

21

"look through" presumption. Id. at 804; Plascencia v. Alameida, 467 F.3d 1190, 1198

22

(9th Cir. 2006).

23

unreasonable legal or factual conclusion, "does not require that there be an opinion from

24

the state court explaining the state court's reasoning." Richter, 131 S. Ct. at 784-85.

25

"Where a state court's decision is unaccompanied by an explanation, the habeas

26

petitioner's burden still must be met by showing there was no reasonable basis for the

27

state court to deny relief." Id. "This Court now holds and reconfirms that § 2254(d) does

28

not require a state court to give reasons before its decision can be deemed to have been

Determining whether a state court's decision resulted from an

6

1

‘adjudicated on the merits.'" Id.

2

Richter instructs that whether the state court decision is reasoned and explained,

3

or merely a summary denial, the approach to evaluating unreasonableness under §

4

2254(d) is the same: "Under § 2254(d), a habeas court must determine what arguments

5

or theories supported or, as here, could have supported, the state court's decision; then

6

it must ask whether it is possible fairminded jurists could disagree that those arguments

7

or theories are inconsistent with the holding in a prior decision of this Court." Id. at 786.

8

Thus, "even a strong case for relief does not mean the state court's contrary conclusion

9

was unreasonable." Id. (citing Lockyer v. Andrade, 538 U.S. at 75). AEDPA "preserves

10

authority to issue the writ in cases where there is no possibility fairminded jurists could

11

disagree that the state court's decision conflicts with this Court's precedents."

12

(emphasis added). To put it yet another way:

13

Id.

15

As a condition for obtaining habeas corpus relief from a federal
court, a state prisoner must show that the state court's ruling on the claim
being presented in federal court was so lacking in justification that there
was an error well understood and comprehended in existing law beyond
any possibility for fairminded disagreement.

16

Id. at 786-87. The Court then explains the rationale for this rule, i.e., "that state courts

17

are the principal forum for asserting constitutional challenges to state convictions." Id. at

18

787.

19

requirement and the doctrine of procedural bar to ensure that state proceedings are the

20

central process, not just a preliminary step for later federal habeas proceedings." Id.

21

(citing Wainwright v. Sykes, 433 U.S. 72, 90 (1977)).

14

22

It follows from this consideration that § 2254(d) "complements the exhaustion

3.

Prejudicial Impact of Constitutional Error

23

The prejudicial impact of any constitutional error is assessed by asking whether

24

the error had "a substantial and injurious effect or influence in determining the jury's

25

verdict." Brecht v. Abrahamson, 507 U.S. 619, 623 (1993); see also Fry v. Pliler, 551

26

U.S. 112, 121-22 (2007) (holding that the Brecht standard applies whether or not the

27

state court recognized the error and reviewed it for harmlessness). Some constitutional

28

errors, however, do not require that the petitioner demonstrate prejudice. See Arizona v.
7

1

Fulminante, 499 U.S. 279, 310 (1991); United States v. Cronic, 466 U.S. 648, 659

2

(1984).

3

IV.

Review of Petition
Claim 1 – Failure to Instruct on Self-Defense

4

A.

5

Petitioner contends the trial court violated his right to present a defense by failing

6

to instruct the jury regarding self-defense with respect to the charge of being a felon in

7

possession of a firearm.

8

1.

State Court Decision

9

Petitioner presented this claim by way of direct appeal to the California Court of

10

Appeal, Fifth Appellate District. The claim was denied in a reasoned decision by the

11

appellate court and summarily denied in subsequent petition for review by the California

12

Supreme Court. (See Lodged Docs. 1-6.) Because the California Supreme Court's

13

opinion is summary in nature, this Court "looks through" that decision and presumes it

14

adopted the reasoning of the California Court of Appeal, the last state court to have

15

issued a reasoned opinion. See Ylst v. Nunnemaker, 501 U.S. 797, 804-05, 111 S. Ct.

16

2590, 115 L. Ed. 2d 706 & n.3 (1991) (establishing, on habeas review, "look through"

17

presumption that higher court agrees with lower court's reasoning where former affirms

18

latter without discussion); see also LaJoie v. Thompson, 217 F.3d 663, 669 n.7 (9th Cir.

19

2000) (holding federal courts look to last reasoned state court opinion in determining

20

whether state court's rejection of petitioner's claims was contrary to or an unreasonable

21

application of federal law under 28 U.S.C. § 2254(d)(1)).

22

In denying Petitioner's claim, the Fifth District Court of Appeal explained:

23

I. Self-defense instruction for being a felon in possession of a
firearm

24

27

Gutierrez argues that for count 4, possessing a firearm while a
felon, the court was obligated to instruct the jury sua sponte on temporary
possession for purposes of self-defense. The People argue that the
instruction need not have been given because there was no substantial
evidence to support it. The People also argue that any error was
harmless.

28

We need not decide whether it was error not to give the instruction.

25
26

8

1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28

Erroneous failure to give a jury instruction warrants reversal only if the
failure is prejudicial. (People v. Breverman (1998) 19 Cal.4th 142, 178.)
This general rule applies to an erroneous failure to instruct on an
affirmative defense. (People v. Demetrulias (2006) 39 Cal.4th 1, 23.) The
California Supreme Court has applied the beyond-a-reasonable-doubt
standard of harmless error review to this type of error (ibid.), but has
suggested that the less-stringent reasonable-probability test might be
appropriate instead (People v. Salas (2006) 37 Cal.4th 967, 984).[fn4] For
two reasons, we agree with the People that any error in failing to give a
self-defense instruction for count 4 was harmless under any standard.
FN4: Gutierrez cites a California Center for Judicial Education and
Research publication for the proposition that a court's erroneous refusal to
give a self-defense instruction is reversible per se. The publication relies
on People v. Lemus (1988) 203 Cal.App.3d 470, 478, which stated that
this type of error is not subject to harmless-error review unless the factual
question posed by the omitted instruction was resolved against the
defendant under another instruction. Gutierrez cites no authority for the
view that the mere erroneous omission of a self-defense instruction is
reversible per se. In the absence of any authority, we will not accept that
view, as it is inconsistent with the California Supreme Court's general
stance on harmless error, i.e., that trial court error is reversible only when
it results in a miscarriage of justice.
First, the jury found Gutierrez guilty of the attempted murder of
Brenda. This means the jury believed Gutierrez shot Brenda with malice
aforethought. To be not guilty of being a felon in possession of a firearm
under a theory of self-defense, a felon must be in "temporary possession
of [the] weapon for a period no longer than that in which the necessity ...
to use it in self-defense continues ...." (People v. King (1978) 22 Cal.3d
12, 24.) If the period during which Gutierrez possessed the gun included
the time when he tried to murder Brenda with it, then it is exceedingly
unlikely that the period was limited to a time when he needed the gun for
self-defense. Since the jury believed Gutierrez committed attempted
murder with the gun, there is virtually no chance that, if instructed on the
issue, it would have found that the prosecution failed to prove he
possessed it for a longer time than he needed it for self-defense,
assuming it would have found he ever needed it for self-defense at all.
Second, the jury found Gutierrez guilty of assaulting Raquinio with
the gun. Again, it is extremely difficult to see how he could have
committed this offense if he was in possession of the gun only for as long
as he needed it for self-defense.
In sum, it is obvious that the jury accepted the prosecution's
account in which Gutierrez was the aggressor and rejected the defense
account in which Raquinio and Brenda were the aggressors. In light of
this, we are confident, beyond a reasonable doubt, that if the court had
given the instruction at issue, the jury would still have found Gutierrez
guilty of being a felon in possession of a firearm.
People v. Gutierrez, 2013 Cal. App. Unpub. LEXIS 114 at 9-12.
3.

Analysis

To the extent Petitioner alleges the instructional claim violated state law, his claim
9

1

is not cognizable in this proceeding. The Supreme Court has held that a challenge to a

2

jury instruction solely as an error under state law does not state a claim cognizable in

3

federal habeas corpus proceedings. Estelle v. McGuire, 502 U.S. at 71-72. A claim that

4

an instruction was deficient in comparison to a state model or that a trial judge incorrectly

5

interpreted or applied state law governing jury instructions does not entitle one to relief

6

under § 2254, which requires violation of the Constitution, laws, or treaties of the United

7

States. 28 U.S.C. §§ 2254(a), 2241(c)(3). Accordingly, to the extent that Petitioner raises

8

state law claims, his claims should be dismissed.

9

The only basis for federal collateral relief for instructional error is that an infirm

10

instruction or the lack of instruction by itself so infected the entire trial that the resulting

11

conviction violates due process. Estelle v. McGuire, 502 U.S. at 71-72; Cupp v.

12

Naughten, 414 U.S. 141, 147, 94 S. Ct. 396, 38 L. Ed. 2d 368 (1973); see Donnelly v.

13

DeChristoforo, 416 U.S. 637, 643, 94 S. Ct. 1868, 40 L. Ed. 2d 431 (1974) (it must be

14

established not merely that the instruction is undesirable, erroneous or even "universally

15

condemned," but that it violated some right guaranteed to the defendant by the

16

Fourteenth Amendment). The Court in Estelle emphasized that the Court had very

17

narrowly defined the category of infractions that violate fundamental fairness, and that

18

beyond the specific guarantees enumerated in the Bill of Rights, the Due Process

19

Clause has limited operation. 502 U.S. at 72-73.

20

However, when habeas is sought under 28 U.S.C. § 2254, a failure to instruct on

21

the defense theory of the case constitutes error if the theory is legally sound and

22

evidence in the case makes it applicable. Clark v. Brown, 450 F.3d 898, 904 (9th Cir.

23

2006); see Mathews v. United States, 485 U.S. 58, 63, 108 S. Ct. 883, 99 L. Ed. 2d 54

24

(1988) (reversing a conviction and holding that even if a defendant denies one or more

25

elements of the crime, he is entitled to an entrapment instruction whenever there is

26

sufficient evidence from which a reasonable jury could find entrapment, and the

27

defendant requests such an instruction).

28

Petitioner contends that the trial court should have instructed the jury with regard
10

1

to self-defense as to the charge of felon in possession of a firearm. Petitioner argues

2

that the state court’s determination was unreasonable. The state court concluded that it

3

was unlikely that the jury would find that Petitioner possessed the firearm in self-defense

4

when it found that he used the same firearm to attempt to murder Brenda Cadiz and to

5

assault Raquinio. Petitioner, on the other hand, argues that it would not be conflicting for

6

the jury to find that he committed attempted murder and assault with the firearm, but was

7

not guilty of possessing due to self-defense.

8

The state Court has the better argument. Having found that Petitioner committed

9

attempted murder and assault with the firearm, it is unlikely that the jury would have

10

found Petitioner not guilty of possessing the firearm based on self-defense. Petitioner

11

presents no coherent theory as to why a jury would determine that he was not guilty of

12

possessing the gun based on self-defense when they did not believe that he acted in

13

self-defense with regard to the attempted murder and assault when using the same

14

firearm. The jury was instructed on self-defense as to the attempted murder and assault

15

charges, and nonetheless found Petitioner guilty of those charges. (See Rep. Tr. Vol. IV

16

at 648, 654.) While Petitioner testified that he acted in self-defense, Brenda Cadiz

17

testified at trial that Petitioner pulled the gun from his pocket and shot her without

18

provocation. (Rep. Tr. Vol. II, at 265-267.) Raquinio also testified that after running out of

19

bullets, Petitioner hit him in the head with the butt of the gun. (Rep. Tr. Vol. II at 123-24.)

20

Based on the corroborating evidence of the two victims, it was unlikely that a jury would

21

believe that Petitioner acted in self-defense while possessing the firearm. The failure to

22

provide the self-defense instruction, even though applicable to Petitioner’s defense, was

23

harmless. Petitioner has failed to show that the instructional error had a substantial and

24

injurious effect or influence in determining the jury's verdict. See Brecht v. Abrahamson,

25

507 U.S. at. 637.

26

Accordingly, it is recommended that the Court deny Petitioner's claim concerning

27

the failure of the state court to instruct on self-defense with respect to the felon in

28

possession of a firearm charge.
11

1

B.

2

Petitioner, in his second claim, contends that his counsel was ineffective for failing

3

Claim Two: Ineffective Assistance of Counsel

to present certain arguments and experts to show that Petitioner acted in self-defense.

4

1.

State Court Decision

5

Petitioner presented this claim by way of a petition with the Kern County Superior

6

Court. The claim was denied in a reasoned decision by the Superior Court and

7

summarily denied in subsequent petitions by the Court of Appeal and the California

8

Supreme Court. (See Lodged Docs. 7-12.) Because the California Supreme Court and

9

Court of Appeal opinions are summary in nature, this Court "looks through" those

10

decision and presumes they adopted the reasoning of the Superior Court, the last state

11

court to have issued a reasoned opinion. See Ylst, 501 U.S. at 804-05.

12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28

With regard to the ineffective assistance of counsel claim, the Superior Court held
in its opinion:
To prevail in a claim of ineffective assistance of counsel, petitioner
must demonstrate that counsel’s conduct fell below professional norms
causing prejudice, which in its absence would create a probability of a
change in the outcome. Strickland v. Washington (1984) 466 U.S. 668,
694.
Petitioner cannot demonstrate ineffective assistance of counsel for
the following reasons. First, the jury rejected petitioner’s claim of selfdefense. The facts clearly show that petitioner was the aggressor, and his
use of methamphetamine does not absolve him of the attempted murder
of Brenda Cadiz or assault with a firearm on Raquinio.
Petitioner’s injuries resulted from Raquinio defending himself as
well as Brenda Cadiz. Petitioner continued shooting despite Raquinio
retreating to the laundry room. Petitioner’s anger about his inability to
speak with Melecio Cadiz was most likely fueled by being under the
influence of methamphetamine. This explains his forcibly reopening the
door prior to shooting at Cadiz and Raquinio.
The appellate court rejected petitioner’s argument of erroneous jury
instructions over self-defense, and consequently agreed with the jury that
petitioner’s version of events lacked credibility. The only tactic was to
portray Ms. Cadiz’ shooting as accidental; as a product of a struggle
between Raquinio and himself. Petitioner could not overcome the
evidence that he used a firearm; that the shell casings found near the
house matched the firearm; that the trail of blood matched his where he
was found near the shed; that Brenda Cadiz, despite her wounds, was
able to summon help and gave a consistent rendering of events to police
officers; and that the shoe prints matched those of petitioner’s within the
12

1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21

premises.
Second, the decision to call witnesses is a tactical one by counsel,
which the court will not second guess. People v. Beagle (1972) 6 Cal. 3d
441, 458. Generally, failure to investigate meritorious defenses or call
favorable witnesses constitutes ineffective assistance of counsel. People
v. Jackson (1980) 28 Cal.3d 264, 289, In re Alcox (2006) 137 Cal. App.
4th 655, 666, 657.
The court discussed why a claim of self-defense is unavailing
above. Counsel consequently need not investigate non-meritorious
defense. People v. Geddes (1991) 1 Cal. App. 4th 448, 454. Petitioner
contends that he wanted counsel to call experts who petitioner claims
would testify that the ballistics tests were inconclusive that petitioner shot
the gun. Petitioner fails to provide any declarations by experts which
would vouch for petitioner’s theory of events. Petitioner cannot have it
both ways.
He cannot claim self-defense and then say in the same vein that it
was not he who fired the shots at Cadiz and Raquinio. The lack of expert
witness’ declarations renders petitioner’s argument conclusory. People v.
Duvall (1995) 9 Cal.4th 464, 474.
Petitioner is entitled to adequate not perfect counsel. People v.
Jackson (2009) 45 Cal.4th 662, People v. Smith (1992) 6 Cal.4th 684,
696.
The facts and the law do not favor petitioner, and his claim of selfdefense is fanciful at best, a claim which the jury rightly rejected. Counsel
did his best under extremely difficult circumstances.
Since the court finds no ineffective assistance of counsel, it
declines to issue an order to show cause. Petitioner’s motion for
appointment of counsel is denied. People v. Gonzalez (1990) 51 Cal.3d
1179, 1258, 1291. Petitioner fails to satisfy his burden to show prima facie
case for habeas corpus relief. People v. Romero (1994) 8 Cal.4th 728,
737.
On the basis of the foregoing, the petition for writ of habeas corpus
is accordingly
denied.
(Lodged Doc. 8.)

22
2.

Legal Standard

23
The law governing ineffective assistance of counsel claims is clearly established
24
for the purposes of the AEDPA deference standard set forth in 28 U.S.C. § 2254(d).
25
Canales v. Roe, 151 F.3d 1226, 1229 (9th Cir. 1998). In a petition for writ of habeas
26
corpus alleging ineffective assistance of counsel, the Court must consider two factors.
27
Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984); Lowry
28
13

1

v. Lewis, 21 F.3d 344, 346 (9th Cir. 1994). First, the petitioner must show that counsel's

2

performance was deficient, requiring a showing that counsel made errors so serious that

3

he or she was not functioning as the "counsel" guaranteed by the Sixth Amendment.

4

Strickland, 466 U.S. at 687. The petitioner must show that counsel's representation fell

5

below an objective standard of reasonableness, and must identify counsel's alleged acts

6

or omissions that were not the result of reasonable professional judgment considering

7

the circumstances. Id. at 688; United States v. Quintero-Barraza, 78 F.3d 1344, 1348

8

(9th Cir. 1995). Judicial scrutiny of counsel's performance is highly deferential. A court

9

indulges a strong presumption that counsel's conduct falls within the wide range of

10

reasonable professional assistance. Strickland, 466 U.S. at 687; see also, Harrington v.

11

Richter, 131 S. Ct. 770, 178 L. Ed. 2d 624 (2011).

12

Second, the petitioner must demonstrate that "there is a reasonable probability

13

that, but for counsel's unprofessional errors, the result ... would have been different."

14

Strickland, 466 U.S. at 694. Petitioner must show that counsel's errors were “so serious

15

as to deprive defendant of a fair trial, a trial whose result is reliable.” Id. at 687. The

16

Court must evaluate whether the entire trial was fundamentally unfair or unreliable

17

because of counsel's ineffectiveness. Id.; Quintero-Barraza, 78 F.3d at 1348; United

18

States v. Palomba, 31 F.3d 1456, 1461 (9th Cir. 1994).

19

A court need not determine whether counsel's performance was deficient before

20

examining the prejudice suffered by the petitioner as a result of the alleged deficiencies.

21

Strickland, 466 U.S. at 697. Since the defendant must affirmatively prove prejudice, any

22

deficiency that does not result in prejudice must necessarily fail. However, there are

23

certain instances which are legally presumed to result in prejudice, e.g., where there has

24

been an actual or constructive denial of the assistance of counsel or where the State has

25

interfered with counsel's assistance. Id. at 692; United States v. Cronic, 466 U.S., at

26

659, and n. 25 (1984).

27
28

As the Supreme Court reaffirmed in Harrington v. Richter, meeting the standard
for ineffective assistance of counsel in federal habeas is extremely difficult:
14

1
2
3
4
5
6
7
8
9
10
11
12
13
14

The pivotal question is whether the state court's application of the
Strickland standard was unreasonable. This is different from asking
whether defense counsel's performance fell below Strickland's standard.
Were that the inquiry, the analysis would be no different than if, for
example, this Court were adjudicating a Strickland claim on direct review
of a criminal conviction in a United States district court. Under AEDPA,
though, it is a necessary premise that the two questions are different. For
purposes of § 2254(d)(1), "an unreasonable application of federal law is
different from an incorrect application of federal law." Williams, supra, at
410, 120 S. Ct. 1495, 146 L. Ed. 2d 389. A state court must be granted a
deference and latitude that are not in operation when the case involves
review under the Strickland standard itself.
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. Yarborough v. Alvarado, 541
U.S. 652, 664, 124 S. Ct. 2140, 158 L. Ed. 2d 938 (2004). And as this
Court has explained, "[E]valuating whether a rule application was
unreasonable requires considering the rule's specificity. The more general
the rule, the more leeway courts have in reaching outcomes in case-bycase determinations." Ibid. "[I]t is not an unreasonable application of
clearly established Federal law for a state court to decline to apply a
specific legal rule that has not been squarely established by this Court."
Knowles v. Mirzayance, 556 U.S. 111, 129 S. Ct. 1411, 1419, 173 L. Ed.
2d 251, 261 (2009) (internal quotation marks omitted).
Harrington v. Richter, 131 S. Ct. at 785-86.

15

"It bears repeating that even a strong case for relief does not mean the state

16

court's contrary conclusion was unreasonable." Id. at 786. "As amended by AEDPA, §

17

2254(d) stops short of imposing a complete bar on federal court relitigation of claims

18

already rejected in state proceedings." Id. "As a condition for obtaining habeas corpus

19

from a federal court, a state prisoner must show that the state court's ruling on the claim

20

being presented in federal court was so lacking in justification that there was an error

21

well understood and comprehended in existing law beyond any possibility for fairminded

22

disagreement." Id. at 786-87.

23

Accordingly, even if Petitioner presents a strong case of ineffective assistance of

24

counsel, this Court may only grant relief if no fairminded jurist could agree on the

25

correctness of the state court decision.

26

3.

Analysis

27

Petitioner contends that counsel was ineffective by failing (1) to present a gunshot

28

residue report, (2) that counsel was ineffective for failing to obtain phone records to show
15

1

that Petitioner had an ongoing illicit business relationship with Brenda Cadiz, and (3) for

2

failing to present a ballistics experts

3

a.

Gunshot Residue Report

4

Petitioner was tested for gunshot residue. The report indicated that the presence

5

of three metal particles – lead, barium and antimony -- was indicative of gunshot residue.

6

Petitioner was found to test positive to all three metal particles on his left hand. The

7

testing on his right hand indicated some, but not all, of the metal particles. Accordingly,

8

the report found that Petitioner had gunshot residue on his left hand, but was

9

inconclusive with regard to Petitioner’s right hand. (Pet. at 46-47.) Petitioner contends

10

that defense counsel should have presented the report as it would show that Petitioner

11

was not the one that shot the gun because he was right-handed and the test only

12

indicated gunshot residue on Petitioner’s left hand.

13

Petitioner believes that the gunshot residue would have aided his defense by

14

showing that there was not gunshot residue on the hand that he most likely would have

15

used to shoot the gun. However, it was reasonable for defense counsel not to use the

16

report. First, the report was inconclusive as to whether there was gunshot residue on

17

Petitioner’s right hand, and did not rule out the possibility that Petitioner shot the gun.

18

Further, and more damaging to Petitioner, was the fact that the report would have

19

indicated that there was gunshot residue on his person, and therefore would provide

20

support that the gun was close to or in his hands at the time of the shooting. This

21

evidence could have corroborated his testimony that there was a struggle over the gun

22

when it discharged, but it also could support the prosecution’s theory that Petitioner

23

alone shot at Cadiz.

24

The state court was not unreasonable in denying the claim. After describing the

25

strong evidence based on the testimony of the victims and the physical evidence found

26

at the scene, the state court found that Petitioner’s claim of self-defense was “fanciful at

27

best.” The state court held that the evidence Petitioner desired to call would not have

28

provided additional support to his theory of events. The state court’s decision was
16

1

reasonable. Petitioner’s arguments are conclusory and his defense, in light of the

2

evidence presented is not credible.

3

Petitioner has not shown that counsel’s conduct fell below an objective standard

4

of reasonableness, or that he was prejudiced by counsel’s conduct. The jury was

5

presented with evidence and argument of the alibi, but in finding Petitioner guilty, must

6

not have found the alibi defense credible.

7

The arguments or theories that could have supported the state court's decision

8

rejecting Petitioner’s claim of ineffective assistance of counsel are not "so lacking in

9

justification that there was an error well understood and comprehended in existing law

10

beyond any possibility for fairminded disagreement." Richter, 131 S. Ct. at 786-87.

11

Accordingly, Petitioner is not entitled to federal habeas relief on this claim.

12

b.

Failure to Subpoena Phone Records

13

Petitioner next asserts that counsel was ineffective for failing to subpoena phone

14

records from Brenda Cadiz to show that they had previously spoken. Petitioner asserts

15

that this would have corroborated his defense that he had a standing business

16

relationship with Cadiz in which he would sell her stolen goods, and that the shooting

17

occurred when Raquinio pulled the gun on Petitioner in an attempt to steal his stolen

18

goods.

19

The phone records, assuming they indicated that Petitioner and Cadiz had

20

phoned each other, would support Petitioner’s claim that Cadiz and Petitioner had some

21

prior dealings. However, records from trial already indicated that Petitioner was known

22

by the victims. Raquinio testified that he had previously seen Petitioner when he had

23

done some repair work on another house owned by the Cadiz family. (Rep. Tr. Vol. II at

24

116-17.) Even if there were prior phone conversations between Petitioner and Cadiz, the

25

phone record would not indicate what was said. The evidence would not counteract the

26

testimony of both Cadiz and Raquinio who testified to a version of the shooting in which

27

Petitioner possessed the gun and was the aggressor. Despite lacking the phone records,

28

Petitioner was able to testify to his version of events at trial. In determining that Petitioner
17

1

was not prejudiced by the failure to present evidence, the state court found that

2

Petitioner’s self-defense theory was “fanciful,” and rightfully rejected by the jury. (Lodged

3

Doc. 8.) Upon review, this Court also finds that the phone records only tangentially

4

supported Plaintiff’s version of the shooting, and counsel was reasonable in not

5

presenting them at trial. Petitioner has not shown that he was prejudiced by the failure to

6

present phone records and the state court's decision rejecting Petitioner’s claim of

7

ineffective assistance of counsel was not “lacking in justification that there was an error

8

well understood and comprehended in existing law beyond any possibility for fairminded

9

disagreement." Richter, 131 S. Ct. at 786-87. Petitioner is not entitled to federal habeas

10
11

relief.
c.

Ballistics Expert

12

Petitioner claims that had counsel retained and presented a ballistics expert, it

13

would have corroborated his self-defense theory or shown that the gun was not the one

14

used to shoot Cadiz. It is possible that had counsel hired a ballistics expert, it could have

15

confirmed Petitioner’s version of events. However, it could have done the opposite, and

16

provided further evidence that Petitioner was the shooter and that the gun was the one

17

used in the shooting. In light of the testimony of the victims, and the physical evidence

18

including the fact that Petitioner was likely in possession of the gun after the shooting

19

and attempted to dispose of the gun on the roof of a nearby house, it was reasonable for

20

counsel to believe that Petitioner’s version of events did not likely occur. There was no

21

plausible scenario presented that did not involve Petitioner or the gun found near

22

Petitioner. Moreover, it was implausible that the jury would believe that Cadiz was

23

accidentally shot while Petitioner and Raquinio struggled for the gun. Based on the

24

evidence presented, and the failure of Petitioner to provide a credible version of events

25

that would require a ballistics expert, counsel was reasonable in not to attempting to

26

obtain a ballistics expert for trial.

27

The state court correctly found that Petitioner has not shown that counsel’s

28

conduct fell below an objective standard of reasonableness, or that he was prejudiced by
18

1

counsel’s conduct. The state court's decision rejecting Petitioner’s claim was reasonable.

2

Richter, 131 S. Ct. at 786-87. Accordingly, Petitioner is not entitled to federal habeas

3

relief with regard to his ineffective assistance of counsel claims.

4

V.

5
6

Recommendation
Accordingly, it is hereby recommended that the petition for a writ of habeas

corpus be DENIED with prejudice.

7

This Findings and Recommendation is submitted to the assigned District Judge,

8

pursuant to the provisions of Title 28 U.S.C. § 636(b)(1). Within thirty (30) days after

9

being served with the Findings and Recommendation, any party may file written

10

objections with the Court and serve a copy on all parties. Such a document should be

11

captioned "Objections to Magistrate Judge's Findings and Recommendation." Any reply

12

to the objections shall be served and filed within fourteen (14) days after service of the

13

objections. The parties are advised that failure to file objections within the specified time

14

may waive the right to appeal the District Court's order. Wilkerson v. Wheeler, 772 F.3d

15

834, 839 (9th Cir. 2014).

16
17
18
19

IT IS SO ORDERED.
Dated:

December 7, 2016

/s/

Michael J. Seng

UNITED STATES MAGISTRATE JUDGE

20
21
22
23
24
25
26
27
28
19