Farias v. Santoro

Filing 27

FINDINGS and RECOMMENDATION to Deny 1 Petition for Writ of Habeas Corpus, signed by Magistrate Judge Jennifer L. Thurston on 4/5/17. Referred to Judge Drozd. Objections to F&R Due Within Twenty-One Days. (Gonzalez, R)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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RICHARD EUGENE FARIAS,

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Petitioner,

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v.
KELLY SANTORO,

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No. 1:15-cv-01619-DAD-JLT (HC)
FINDINGS AND RECOMMENDATION
TO DENY PETITION FOR WRIT OF
HABEAS CORPUS
[TWENTY-ONE DAY OBJECTION
DEADLINE]

Respondent.

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Petitioner is currently serving an indeterminate sentence of 30 years to life plus 5 years for

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his conviction of gross vehicular manslaughter while intoxicated and felony driving under the

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influence causing great bodily injury. Petitioner is proceeding with the instant habeas action

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claiming: 1) The trial court erred by allowing an expert to testify as to the theory of Retrograde

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Alcohol Extrapolation related to Petitioner’s blood alcohol content at the time of the accident; 2)

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Defense counsel rendered ineffective assistance by failing to properly object to the admission of

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the expert testimony; and 3) The trial court abused its discretion by imposing consecutive

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sentences. As discussed below, the Court finds the claims to be without merit and recommends

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the petition be DENIED.

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I.

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PROCEDURAL HISTORY
Petitioner was convicted in the Madera County Superior Court on November 20, 2012, of

two counts of gross vehicular manslaughter while intoxicated (Cal. Penal Code § 191.5(a)), one
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count of driving while under the influence causing injury (Cal. Vehicle Code § 23153(a), and one

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count of driving with a blood alcohol content of 0.08 percent or greater causing injury (Cal.

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Vehicle Code § 23153(b)). People v. Farias, No. F066500, 2014 WL 6066121, at *1 (Cal. Ct.

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App. 2014). The jury also found true the special allegations that Petitioner had a prior conviction

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for driving under the influence and that he had caused great bodily injury to a victim. Id.
Petitioner appealed to the California Court of Appeal, Fifth Appellate District (“Fifth

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DCA”). The Fifth DCA affirmed the judgment on November 14, 2014. Id. Petitioner filed a

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petition for review on December 26, 2014, in the California Supreme Court. (LD1 29.) The

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petition was summarily denied on January 28, 2015. (LD 30.)

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On October 26, 2015, Petitioner filed the instant petition for writ of habeas corpus in this

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Court. (Doc. No. 1.) Respondent filed an answer on March 8, 2016. (Doc. No. 18.) Petitioner

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filed a traverse to Respondent’s answer on June 27, 2016. (Doc. No. 24.)

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II.

FACTUAL BACKGROUND

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The Court adopts the Statement of Facts in the Fifth DCA’s unpublished decision2:

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On the afternoon of November 13, 2010, Valentino Valdez and Marcel Rodriguez
walked to a liquor store in Madera. [N.1] They saw defendant at the store. Valdez
reminded defendant that he was his neighbor and asked defendant for a ride home.
Defendant agreed and invited them into his car, a 1994 Jaguar XJ6 four-door
sedan.

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[N.1] Defendant and Valdez were the only survivors of the crash. Valdez
testified for the prosecution, admitted he was on probation for prior felony
convictions, and that he had problems with alcohol and drugs. Valdez
failed to appear on the scheduled day of his testimony because he was
afraid he would be arrested for an unrelated probation violation. When
Valdez was recalled as a rebuttal witness, he admitted he had been taken
into custody for that violation.

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Deborah Lyon, defendant's friend, was sitting in the front passenger seat. Valdez
sat in the rear driver's side seat, and Rodriguez sat on the rear passenger side.
Valdez could not find any seatbelts in the back seat.

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Valdez complimented defendant on his car. Defendant said the Jaguar had a
special passing gear called a “slapstick” shifter, and it “just makes the car jet, like
from 50 to maybe 90 or 100, real quick.” Valdez testified defendant did not appear

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“LD” refers to documents lodged by Respondent.
The Fifth DCA’s summary of facts in its unpublished opinion is presumed correct. 28 U.S.C. §§ 2254(d)(2), (e)(1).
Therefore, the Court will rely on the Fifth DCA’s summary of the facts. Moses v. Payne, 555 F.3d 742, 746 (9th Cir.
2009).
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to be under the influence of alcohol.

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Valdez testified defendant was supposed to drive him home. Instead, defendant
drove in the opposite direction and into the country. The radio was loud and
Valdez could not talk to defendant to ask where he was going.

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The crash

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Valdez testified defendant was driving approximately 50 to 55 miles per hour on
the two-lane road. Defendant passed at least three cars which were traveling in
front him. A black BMW passed defendant on the left side, and it was going about
55 or 60 miles per hour. Valdez thought defendant turned and said something to
the BMW's driver as the car passed him.

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Valdez testified defendant suddenly “hit[ ] the gas” and accelerated. Valdez looked
at the speedometer over defendant's shoulder, and the needle bounced between 100
and 110 miles per hour. Valdez again looked for a seatbelt and could not find it.
Valdez testified defendant came upon a slow-moving vehicle which was traveling
in the same lane in front of him. Defendant suddenly applied the brakes, and
Valdez felt the front of the car start shaking.
Valdez testified defendant lost control of the Jaguar. It fishtailed, veered off the
road, became airborne, and flipped. Valdez desperately held onto the seat, but he
was ejected. The Jaguar flipped in the air, crashed onto the ground, rolled several
times, and finally landed in an alfalfa field.

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The witnesses
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Joey Rodriguez, Philip Rodriguez, and Lorena Bravo were traveling in a black
BMW sports car on Avenue 14. Joey Rodriguez was driving about 45 to 50 miles
per hour. The speed limit was 55 miles per hour. At some point, Rodriguez got in
front of defendant's Jaguar.
As they continued on Avenue 14, Bravo heard a car come up behind them, and
Philip said the car was going to crash. Bravo heard the tires lock as if the driver hit
the brakes. Bravo turned and looked through the BMW's rear window, and saw the
Jaguar “coming toward us very fast and I thought they were gonna hit us.”

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Bravo testified the Jaguar was going over 70 miles per hour. She watched as the
Jaguar flipped into the air, spun at least twice, hit the ground, and rolled over
several times. Bravo saw one person ejected from the car as it was in the air.

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Bravo and her companions immediately stopped, called 911, and then ran to the
Jaguar. A body was lying near the car. The driver had gotten out of the car and was
holding his bloody head. They told the driver to sit down, which he did.

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Sandra Gonzalez was also driving on Avenue 14 and noticed the Jaguar was
traveling “really quick” and “tried to pass.” The car appeared to hit the dirt and
gravel on the shoulder. The car became airborne and flipped several times, and
someone was ejected from the car.

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The scene

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At approximately 3:00 p.m., California Highway Patrol Officer Isler responded to

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the scene at Avenue 14, west of Road 23. The Jaguar was in an alfalfa field and on
its wheels, but had substantial damage from rolling over numerous times. Isler
described the roadway as straight and completely flat, the pavement was very
good, and there were no hazards on the road such as oil or water.

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Valdez had been ejected from the car, but he was conscious and survived. He was
in tremendous pain in the area of his ribs and back.

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Rodriguez also had been ejected from the car and he was lying in the field. He was
dead at the scene from crushing injuries to his head and body.

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Lyon was still buckled into the front passenger seat. Her head was split open and
she was dead at the scene from massive head and brain injuries.
Defendant was sitting sideways in the driver's seat. He was conscious and suffered
a head injury. Officer Isler briefly spoke to defendant and asked for his name,
whether he was driving, and what happened. Defendant identified himself.
Defendant said it was his car, and something hit the windshield and he lost control.

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Officer Isler only spoke to defendant for a minute. He stood a couple of feet away
and did not detect the odor of alcohol from defendant. Defendant was bleeding
from a laceration to his skull. The medical personnel arrived and Isler stepped
away for defendant to receive treatment. Defendant and Valdez were taken to the
hospital.

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Defendant's statements at the hospital
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Around 4:45 p.m., Officer Isler spoke to Valdez at the hospital and obtained his
statement about what happened. Valdez had suffered fractured ribs and dislocated
fingers and was in the hospital for three days.

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After he spoke to Valdez, Officer Isler spoke to defendant in the emergency room.
Defendant was lying on a stretcher. He was wearing a neck collar, and his head
injuries were bandaged. Isler again asked defendant if he was driving and how the
collision happened. Defendant said he was driving, Lyon was in the front seat, and
the two men were in the back seat. They were going to a friend's house. Defendant
said something struck his windshield, but he was not sure what it was. He thought
it might have been a bird. Defendant said he lost control, and the car rolled over.

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As they talked, Officer Isler noticed defendant's eyes were watery and bloodshot,
which was not unusual after having been in that type of collision. However, Isler
also smelled an odor of alcohol from defendant. He moved closer to defendant as
he was talking, and realized the odor was coming from defendant's mouth. He was
close enough to defendant's mouth to “get a good sniff of the alcohol that was
coming out of his breath.” Isler described the alcohol odor as “moderate to weak ...
it wasn't strong. I just could smell it coming from his breath, from past experience.
[A]nd I could tell it probably wasn't beer either,” because “hard liquor has a
different smell than beer.”

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After smelling the alcohol, Officer Isler performed the horizontal gaze nystagmus
test on defendant and asked him to follow his finger with his eyes. Based on
defendant's reaction, Isler believed he was under the influence of alcohol. Isler was
unable to perform any physical field sobriety tests because of defendant's
condition.

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Officer Isler advised defendant of the Miranda warnings and asked if he had eaten
anything. Defendant said he had sausage and eggs. Isler asked if he drank
anything. Defendant said he had one shot of gin at his house at 11:00 a.m.
Defendant said he also took a 750–milligram Vicodin pill that morning but
claimed he did not feel any effects from it.
At 4:52 p.m., defendant agreed to perform a Preliminary Alcohol Screening (PAS)
breath test, and the result was 0.074 percent.
Officer Isler testified he was “convinced” and there was “no doubt in my mind”
that defendant was under the influence of alcohol. Isler arrested defendant for
driving under the influence.

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At 5:15 p.m., a blood sample was taken from defendant, and his blood-alcohol
content was determined to be 0.08 percent.

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The investigation

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CHP Officer Nicholas Haltom investigated the crash scene and found multiple tire
friction marks on the pavement. After the final friction mark, the vehicle became
airborne for 110 feet, hit the ground, flipped and rotated through the air an
unknown number of times, and crashed into the field. The car finally stopped
approximately 240 feet from the last friction mark on the pavement.
Officer Haltom could not determine how many times the car flipped over.
However, there were several points of impact on the pavement and in the field,
which showed where the car hit the ground and then flipped back into the air.
There was massive damage on all sides of the car. Haltom testified the car was
definitely traveling faster than the speed limit of 55 miles per hour.
Officer John Kolter examined the Jaguar and determined that while there was
massive damage to the car's body from the crash, there was no evidence of a
mechanical defect that would have caused the driver to lose control. He did not see
any evidence of anything hitting or cracking the windshield before the crash
occurred.
Officer Kolter testified the car's brake rotors were undersized and too thin. The
vehicle had sensors to trigger a dashboard light when there were problems with
brake friction, but the sensor wires had been cut and tied off to turn off the light.
Nevertheless, the driver would have known about the brake problem by feeling
vibrations when using the brakes. The worn brakes would not have affected the
driver's ability to drive the car or caused the car to go out of control. [N.3] There
were functioning seatbelts in the back seat.
[N.3] Valdez testified that when defendant suddenly applied the brakes just
before the crash, Valdez felt the front of the car start to shake. Defendant
testified he had owned his Jaguar for seven or eight years, he usually kept it
in storage because the insurance was so high, and he did not know the
brake sensor wires had been altered.
After inspecting the scene and the incident report, Officer Kolter testified to his
opinion that the Jaguar was traveling at 74 miles per hour at the time of the crash.
Kolter testified the crash was caused by defendant's recklessness and excessive
speed.

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Expert testimony

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Ricardo Deslate, a criminalist with the Department of Justice, testified about
“retrograde extrapolation,” which is the process of determining “alcoholic
concentration in a person's system based on a test result that was performed a little
bit later.” [N.4] The variables included the time the last drink was consumed and
how many drinks were consumed with a certain period, compared to the time of
the incident.

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[N.4] As we will explain in issue I, post, an expert who testifies about
“retrograde extrapolation” starts with an individual's blood-alcohol content
at the time of the chemical test, and uses circumstantial evidence and
various factors to determine the person's blood-alcohol content at the time
that person was driving. (People v. Warlick (2008) 162 Cal.App.4th Supp.
1, 7, fn. 2.)
Deslate testified that 90 percent of the alcohol in a person's system is metabolized
by enzymes produced by the liver. The “metabolic rate, burn off rate,” is an
average of 0.02 per hour. “That means if you have 0.02 alcohol in your system,
you will get rid of it in one hour. That's equivalent to about one drink in about [a]
150, 170–pound man.” Deslate testified that was an average, some are lower and
some are higher, and the range of burn off is “between .015 to .025 ... grams
percent per hour.”
In response to the prosecutor's series of hypothetical questions, Deslate testified
about what the blood-alcohol content would be at 3:00 p.m., for a man who was
five feet eight inches tall and weighed 175 pounds based on facts similar to this
case, assuming his blood-alcohol content was 0.08 percent at 5:15 p.m., using
retrograde extrapolation and different burn-off rates. [N.5] Deslate testified that
using an average burn-off rate of 0.02 grams per hour, such a person would have
had a blood-alcohol content of 0.12 percent at 3:00 p.m. Deslate used the same
formula with a burn-off rate of 0.025 grams per hour, and testified the person's
blood-alcohol content would have been 0.13 percent at 3:00 p.m. With a burn off
rate of 0.015 grams, the person's blood-alcohol content would have been 0.11
percent.
[N.5] Officer Isler testified defendant's driver's license said he was five feet
eight inches tall and weighed 175 pounds.

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The prosecutor asked Deslate to assume the man's blood-alcohol content was 0.07
percent at 5:15 p.m., and to use a burn-off rate of 0.015. Deslate testified the man's
blood-alcohol content would have been 0.10 percent at 3:00 p.m. under that
hypothetical.
Deslate explained that if a person's blood sample was preserved and tested at a
later time, the blood-alcohol result would be different at a rate of 0.01 to 0.02
percent because of the volatility of alcohol in the blood. Deslate also explained
that PAS tests result in lower blood-alcohol results approximately 85 percent of
the time because “you don't really get 100 percent of deep lung air.”
Defense counsel asked Deslate to determine the hypothetical man's blood-alcohol
content at 3:00 p.m. using the burn off rate of 0.025, based on a blood-alcohol
content of 0.07 percent at 5:15 p.m. Deslate testified it would be 0.12 percent.
Defense counsel asked him to use the same hypothetical with a burn off rate of
0.01 percent. Deslate explained the blood-alcohol content would be 0.022 percent.
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In the same hypothetical, Deslate testified the blood-alcohol content would be
0.011 percent using a burn off rate of 0.02 percent.

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Defendant's prior DUI
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The prosecution introduced evidence of defendant's prior conviction in 2004 for
driving with a blood-alcohol content of 0.08 percent or greater. The conviction
was based on a crash in March 2004. Anthony Tates and his family were in a
pickup truck at the intersection of Avenue 14 and Road 23, where there was a
four-way stop sign. Tates suddenly saw a small pickup truck heading toward him.
Defendant, who was driving the truck, ran the stop sign, his truck flew through the
intersection, and he hit Tates's truck in a “T–Bone.” Defendant hit Tates's truck
with such force that heavy construction supplies were thrown out of the bed of
Tates's truck. Tates's head hit the windshield, his nephew's knees were pinned
under the dashboard, and his daughter, who had been in the extended rear cab, was
pinned under the seat. Tates and his nephew had to pry his daughter out of the
truck.
Officer Brian Wendland interviewed defendant at the scene. Defendant said he
was driving on Road 23, but a car stopped right in front of him, and he could not
stop in time. He swerved to the right and hit Tates's truck. After administering
field sobriety tests, Wendland arrested defendant at the scene for driving under the
influence of alcohol.

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Tates testified he attended all of the court hearings for defendant's criminal charge.
At the sentencing hearing, defendant looked at Tates and he “was mad-dogging
me.”

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DEFENSE EVIDENCE

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Dr. Alan Barbour, a forensic alcohol supervisor at Central Valley Toxicology,
retested defendant's blood sample and obtained blood-alcohol results of 0.070 and
0.071 percent. The error rate was plus-or-minus 0.01 percent, which meant his
blood-alcohol content could have as low as 0.06 percent or as high as 0.08 percent
at 5:15 p.m., two hours after the crash.

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Defendant's testimony

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Defendant testified that on the morning of the crash, he woke up around 9:00 a.m.
and took a 600– or 750–milligram Vicodin pill for knee pain. At around 10:00
a.m., he ate a hamburger and a couple of eggs for breakfast. At around 11:00 a.m.
or 11:30 a.m., he was cleaning the kitchen and noticed a bottle of gin that his
guests had left from the previous night. There were one or two shots left in the
bottle. Defendant decided it was not worth putting away the bottle so he drank the
remaining gin. He also drank a glass of water. He did not feel any effect from the
gin.

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Around 12:30 p.m., defendant drove his Jaguar to Deborah Lyon's house. Lyon
was upset about a family matter, so they drove around for about 20 minutes and
talked. They stopped at a liquor store for cigarettes, and defendant saw Valdez and
Rodriguez. Defendant agreed to give them a ride.
Defendant confirmed that he told the two men about the Jaguar's automatic
transmission “slap stick” shifter, which made his car “a little more special.” If he
was driving in the automatic position, he could press a button “and if the need
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arises to get by a vehicle a bit faster, for passing, you press this button and you
slap the stick over. And you shove it into second or third, and you shift it just like
you would a clutch-operated vehicle, and you watch your RPMs in order to switch
gears.”

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Defendant testified he began driving, and he was daydreaming. He drove in the
opposite direction from his house. He accelerated to 80 miles per hour even though
the speed limit was 55 miles per hour. He used the slap shifter to pass one car; he
crossed into the opposite lane, passed the car, and returned to his lane. He passed a
second car by again crossing into the opposite lane, but he did not use the slap
shifter. After he passed the second car, he tapped the brakes to slow down to 60
miles per hour and return to his lane. Defendant testified something “jerked” on
the Jaguar's front left side, and he thought a tire blew out. He lost control and the
car flipped into the air.

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Defendant testified he could not remember anything else because of the head
injury he suffered in the crash. On further questioning, however, defendant
recalled that a black BMW passed him before the crash. Defendant denied that he
tried to race it. He admitted that he accelerated after the BMW was “way up ahead
of us,” but “not for the purpose of trying to catch that vehicle.”

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Defendant testified he did not tell the officer at the scene that a bird hit his
window. Instead, he asked the officer if that was what happened. Defendant could
not remember speaking to the officer at the hospital.

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Defendant admitted he pleaded no contest to driving with a blood-alcohol content
of 0.08 percent or greater in 2004, based on the incident where Tates and his
family were injured. He was placed on probation. Defendant believed his bloodalcohol content was 0.08 percent. On further questioning, however, defendant
conceded his blood-alcohol content was 0.10 percent in the 2004 crash.

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The prosecution introduced evidence that when defendant was placed on probation
for the 2004 conviction, he was admonished that if he continued to drive while
under the influence of alcohol or drugs or both, and as a result of his driving
someone was killed, he could be charged with murder. Defendant testified he did
not recall being advised of that warning by the court, his attorney, or the probation
officer. [N.6]

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[N.6] Based on the 2004 admonishment and the other evidence in this case,
defendant was charged with the murder of the two victims in this case.
However, the jury advised the court it was hopelessly deadlocked on the
murder charges, and instead convicted defendant of two counts of gross
vehicular manslaughter while intoxicated. The foreperson later advised the
court that the jury had been split 11 to one in favor of convicting defendant
of the two murder charges. The prosecution subsequently dismissed the
two murder counts.

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Defendant admitted that in 2002, he was arrested for being drunk in public at the
Millerton marina. The charges were later dropped.

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Farias, 2014 WL 6066121, at *1–7.

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III.

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DISCUSSION
A.

Jurisdiction
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Relief by way of a petition for writ of habeas corpus extends to a person in custody

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pursuant to the judgment of a state court if the custody is in violation of the Constitution, laws, or

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treaties of the United States. 28 U.S.C. § 2254(a); 28 U.S.C. § 2241(c)(3); Williams v. Taylor,

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529 U.S. 362, 375 n. 7 (2000). Petitioner asserts that he suffered violations of his rights as

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guaranteed by the United States Constitution. The challenged conviction arises out of the Madera

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County Superior Court, which is located within the jurisdiction of this court. 28 U.S.C. §

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2254(a); 28 U.S.C.§ 2241(d).

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On April 24, 1996, Congress enacted the Antiterrorism and Effective Death Penalty Act of
1996 (“AEDPA”), which applies to all petitions for writ of habeas corpus filed after its

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enactment. Lindh v. Murphy, 521 U.S. 320 (1997) (holding the AEDPA only applicable to cases

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filed after statute’s enactment). The instant petition was filed after the enactment of the AEDPA

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and is therefore governed by its provisions.

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B.

Legal Standard of Review

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A petition for writ of habeas corpus under 28 U.S.C. § 2254(d) will not be granted unless

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the petitioner can show that the state court’s adjudication of his claim: (1) resulted in a decision

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that was contrary to, or involved an unreasonable application of, clearly established Federal law,

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as determined by the Supreme Court of the United States; or (2) resulted in a decision that “was

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based on an unreasonable determination of the facts in light of the evidence presented in the State

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court proceeding.” 28 U.S.C. § 2254(d); Lockyer v. Andrade, 538 U.S. 63, 70-71 (2003);

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Williams, 529 U.S. at 412-413.
A state court decision is “contrary to” clearly established federal law “if it applies a rule

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that contradicts the governing law set forth in [the Supreme Court’s] cases, or “if it confronts a set

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of facts that is materially indistinguishable from a [Supreme Court] decision but reaches a

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different result.” Brown v. Payton, 544 U.S. 133, 141 (2005) (citing Williams, 529 U.S. at 405-

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406).

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In Harrington v. Richter, 562 U.S. 86, 101 (2011), the U.S. Supreme Court explained that

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an “unreasonable application” of federal law is an objective test that turns on “whether it is

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possible that fairminded jurists could disagree” that the state court decision meets the standards
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set forth in the AEDPA. The Supreme Court has “said time and again that ‘an unreasonable

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application of federal law is different from an incorrect application of federal law.’” Cullen v.

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Pinholster, 563 U.S. 170, 203 (2011). Thus, a state prisoner seeking a writ of habeas corpus from

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a federal court “must show that the state court’s ruling on the claim being presented in federal

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court was so lacking in justification that there was an error well understood and comprehended in

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existing law beyond any possibility of fairminded disagreement.” Harrington, 562 U.S. at 103.

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The second prong pertains to state court decisions based on factual findings. Davis v.

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Woodford, 384 F.3d 628, 637 (9th Cir. 2003) (citing Miller-El v. Cockrell, 537 U.S. 322 (2003)).

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Under § 2254(d)(2), a federal court may grant habeas relief if a state court’s adjudication of the

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petitioner’s claims “resulted in a decision that was based on an unreasonable determination of the

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facts in light of the evidence presented in the State court proceeding.” Wiggins v. Smith, 539

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U.S. 510, 520 (2003); Jeffries v. Wood, 114 F.3d 1484, 1500 (9th Cir. 1997). A state court’s

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factual finding is unreasonable when it is “so clearly incorrect that it would not be debatable

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among reasonable jurists.” Jeffries, 114 F.3d at 1500; see Taylor v. Maddox, 366 F.3d 992, 999-

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1001 (9th Cir. 2004), cert.denied, Maddox v. Taylor, 543 U.S. 1038 (2004).

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To determine whether habeas relief is available under § 2254(d), the federal court looks to

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the last reasoned state court decision as the basis of the state court’s decision. See Ylst v.

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Nunnemaker, 501 U.S. 979, 803 (1991); Robinson v. Ignacio, 360 F.3d 1044, 1055 (9th Cir.

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2004). “[A]lthough we independently review the record, we still defer to the state court’s

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ultimate decisions.” Pirtle v. Morgan, 313 F.3d 1160, 1167 (9th Cir. 2002).

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

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had “a substantial and injurious effect or influence in determining the jury’s verdict.” Brecht v.

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Abrahamson, 507 U.S. 619, 623 (1993); see also Fry v. Pliler, 551 U.S. 112, 119-120 (2007)

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(holding that the Brecht standard applies whether or not the state court recognized the error and

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reviewed it for harmlessness).

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C.

Review of Claims

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The instant petition presents the following grounds for relief: 1) The trial court committed

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reversible federal constitutional error by allowing a prosecution expert to improperly testify as to
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the unreliable and unscientific theory of Retrograde Alcohol Extrapolation concerning

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Petitioner’s blood alcohol content at the time of the accident; 2) Defense counsel rendered

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ineffective assistance by failing to properly object to the admission of the expert testimony; and

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3) The trial court abused its discretion by imposing consecutive sentences.
Trial Court Error – Admission of Expert Testimony

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1.

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Petitioner first alleges the trial court erred by allowing the prosecution’s expert to testify

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regarding Petitioner’s blood alcohol level at the time of the accident using the unreliable and

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unscientific theory of Retrograde Alcohol Extrapolation. Petitioner presented this claim on direct

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review. The Fifth DCA rejected the claim, as follows:

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I. The court properly admitted the expert testimony about retrograde
extrapolation
Defendant contends the court should have completely excluded all aspects of
Deslate's testimony about retrograde extrapolation because it is an unreliable and
unscientific theory, there was no scientific foundation for his opinions, his
opinions were not based on defendant's individual characteristics, and the
admission of the evidence violated his due process rights.
As we will explain, defense counsel raised very specific and narrow objections to
Deslate's expert testimony, the court conducted an evidentiary hearing to address
these objections, and both the court and defense counsel agreed Deslate could
testify about retrograde extrapolation. Defendant never raised the objections that
he now makes on appeal. In order to avoid this omission, defendant alternatively
contends defense counsel was prejudicially ineffective for failing to preserve his
due process objections to the unreliability of retrograde extrapolation. These
arguments are meritless.
A. Defendant's motion in limine
We begin with defendant's pretrial motion in limine, which sought to exclude
certain evidence of retrograde extrapolation as follows.
“Exclude any evidence of retrograde extrapolation where the opinion states
that alcohol is eliminated at a rate of 0.02% per hour on the following
grounds: improper opinion, lack of foundation, undue prejudice
(Evid.Code, § 352), and on the grounds that admission of that opinion
would violate defendant's right to due process and a fair trial under the U.S.
and California Constitutions.” (Italics added.)
During pretrial motions, defense counsel conceded that “the case law says that
retrograde extrapolation is a legitimate prosecution tool in support of
circumstantial evidence with regard to what the BAC may have been at the time of
the driving.” Defense counsel clarified the nature of his motion to exclude:
“[A]ny blanket statement by any expert that alcohol is eliminated at a rate
of .02 percent per hour because that particular assertion is completely
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lacking any foundation. I believe there's [a] formula that is used to
determine what a person's BAC may have been at a prior time to the time
the test was taken. But to allow someone to testify with regard to a number
without any further foundation I think would be prejudicial and would be
false because, you know, we are all human beings, we are all different,
biology works differently.” (Italics added.)

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The court asked the prosecutor for an offer of proof regarding the proposed
testimony of Deslate, the prosecution's expert. The prosecutor replied Deslate
would give his opinion “based upon a formula that he uses and the blood alcohol
content given at a certain time and full absorption at a certain time within a
hypothetical. So the formula and the calculation they use is really supporting his
own opinion. To limit my expert in this way would be limiting his opinion
improperly....”

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B. The evidentiary hearing
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The court conducted an evidentiary hearing (Evid.Code, § 402) to address the
admissibility of Deslate's expert testimony about the burn-off rates. Defense
counsel stated that for the purpose of the evidentiary hearing, there was “nothing
in the CV that would indicate he wouldn't qualify as an expert.”
Deslate, a senior criminalist with the Department of Justice, testified retrograde
extrapolation is “the process of determining the amount of alcohol in a person's
system based on a test ... that was conducted at a later time. So you want to go
back to a certain time to determine what the amount of alcohol that's in an
individual's system based on a result of a test that is conducted a little bit later,
later than the time you want the alcohol to be determined.”
Deslate explained that to make this calculation he had to use a figure “that we
normally consider to be an average burn off. By that I mean the amount of alcohol
that our body metabolizes or gets rid of per hour.” There was a range which could
be as low as 0.015 to 0.025 grams percent alcohol per hour, “that's where you got
the average of 0.02 grams per hour is derived. Some people would argue that it's
actually .0175. The difference is minuscule, so if you want me to use the average
that's fine too. But for purposes of me answering your question, I'm going to use
.02 as the average.”
The prosecutor asked Deslate about the source of the figures for the burn-off
range:
“The very first time I learned about burn off was back in 1991. I attended
and completed a five-day course called Forensic Alcohol Supervisor
Course. Parts of those presentations involved burn off or metabolism of
alcohol.
“Over the years I have read and digested and learned numbers from
published studies conducted by experts in the field, as far as burn off is
concerned. And, also, I have participated in approximately about nine
correlation studies, nine forensic alcohol correlation studies, where
determining the burn off rate was also included.
“Based on those published studies done with other people and my own
participation in forensic alcohol studies, I have formed the opinion that the rate of
burn off per hour is .02 as an average, and has a range of .015 and .025.”
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On cross-examination, Deslate testified numerous studies were the basis for his
opinion about the range.

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“Q. Now, is it your testimony that nobody will have burn off at either more
than or less than the range that you've provided?

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“A. I said that's the reasonable range. Is it possible for individuals to have a
burn off that is very, very low? Yes. Particularly, if you are dealing with
somebody who has liver damage and cannot produce the enzymes that are
responsible for metabolizing alcohol.... [¶] But the range I'm talking about
are of those who are considered normal, without medical conditions that
would affect that particular aspect of physiology of alcohol.”
Defense counsel clarified what Deslate would testify about:
“Q. Now, the reason we're having this hearing is you're not gonna testify
that burn off is .02 percent for everybody, are you?
“A. As I said earlier, I use that as an average. I'm not saying that everyone
is a burn off rate of .02. But because I don't have somebody's burn off rate
when I'm being asked of it, I have to use that to arrive at the number. If you
want to me use a number between that range, that's fine by me.
“Q. Okay. Well, so you're just saying that's an average and that's what you
use, right?
“A. Yes.

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“Q. Okay. But that's not the definitive burn off rate for any particular
individual, right?

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“A. No.” (Italics added.)

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Deslate further testified that among his colleagues, “everyone in the laboratory”
used 0.02 as the average, but they also agreed the average burn-off range could be
0.015, 0.0175, and/or 0.025.
At the conclusion of the hearing, defense counsel stated his motion had been to
exclude “any testimony that said that .02 is the number” for the burn-off rate, and
“I don't think that there's a problem” in light of Deslate's testimony. The court
agreed that given Deslate's explanation, it would allow his testimony on retrograde
extrapolation.
C. Deslate's trial testimony
We have already set forth Deslate's trial testimony above. On cross-examination,
defense counsel extensively cross-examined Deslate about the scientific studies
regarding burn-off and correlation rates, to explain the formulas he used for
retrograde extrapolation, and explain there are variables inherent in each person
when determining the burn off rate.
In closing argument, the prosecutor argued Deslate's testimony about retrograde
extrapolation was very important, and summarized Deslate's explanations about
burn off rates and blood-alcohol contents. The prosecutor acknowledged there was
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a range for the burn off rate, but defendant's blood-alcohol level was still over 0.08
percent at 3:00 p.m. using the lower figure in that range. The prosecutor argued
that even giving defendant the benefit of a doubt, and assuming his blood-alcohol
content was 0.07 percent at 5:15 p.m., it would have been 0.10 percent at the time
of the crash.
Defense counsel used closing argument to undermine the accuracy of the results
from the breath and blood tests, and Deslate's testimony about burn off rates and
retrograde extrapolation formulas.
D. Analysis
Defendant contends the court abused its discretion and violated his due process
rights by admitting any evidence about retrograde extrapolation testimony because
Deslate did not know defendant's individual burn-off rate. Defendant contends that
in the absence of such a figure, retrograde extrapolation is an unreliable and
unscientific theory and there was no scientific foundation for Deslate's opinions.
To the contrary, retrograde extrapolation has been found admissible in this state.
“Retrograde extrapolation” is a method of introducing expert opinion, based on
circumstantial evidence, to determine a person's blood-alcohol content at the time
that person was driving. (People v. Warlick, supra, 162 Cal.App.4th Supp. at p. 7.)
“‘[R]etrograde extrapolation’ is nothing more than the prosecutorial version of the
‘“rising blood-alcohol” defense.’ [Citation.] Each starts with the defendant's
blood-alcohol level at the time of chemical test and relies on circumstantial
evidence regarding the direction of change to convince the trier of fact that the
level was different—significantly higher or lower—at the time of driving.” (Id. at
p. 7, fn. 2.)

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The California Supreme Court has recognized the validity and admissibility of
expert testimony on retrograde extrapolation. (See, e.g., People v. Clark (1993) 5
Cal.4th 950, 993, disapproved on another point in People v. Doolin (2009) 45
Cal.4th 390, 421, fn. 22; People v. Thompson (2006) 38 Cal.4th 811, 826 (maj.
opn. of Baxter, J.); id. at p. 834 (dis. opn. of Werdegar, J.). “It is common ... for
experts to take into account the metabolization rate of a substance and extrapolate
from the amount of a substance in a blood sample to arrive at an opinion regarding
the amount of the substance in the blood at a critical point in time....” (People v.
Clark, supra, 5 Cal.4th at p. 993.) The Supreme Court has further explained that
while such extrapolations may be speculative because “‘[t]here are numerous
variables such as weight, or time and content of last meal which may affect the
rate at which the alcohol dissipates,’ [citations.]” such issues go to the weight
rather than the admissibility of the expert testimony. (People v. Thompson, supra,
38 Cal.4th at p. 826 (maj. opn. of Baxter, J.), fn. omitted; see id. at p. 834 (dis.
opn. of Werdegar, J.).)

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In this case, the court did not abuse its discretion or violate defendant's due process
rights by permitting Deslate to testify about his opinions about retrograde
extrapolation. Such expert opinion evidence has been held admissible by our
Supreme Court. Moreover, defendant's pretrial objections were not aimed at the
general reliability or scientific basis for this expert testimony. Instead, defendant's
motion and hearing objections were to any evidence about a “blanket” burn-off
rate of 0.02 percent. At the evidentiary hearing, Deslate explained the range of
opinions on average burn-off rates and, in response to defense counsel's questions,
clarified that he would not testify that 0.02 percent was the burn-off rate for
everyone. Defense counsel was satisfied with his offer of proof. The court agreed
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and held Deslate could testify.

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As the Supreme Court has explained, variations in the calculation are addressed to
the weight rather than the admissibility of expert opinion on retrograde
extrapolation. That is exactly what happened in this case. At trial, Deslate repeated
his hearing testimony and explained the average range of burn-off rates. He
responded to numerous hypothetical questions proposed by both the prosecutor
and defense counsel using different assumptions regarding burn-off rates and
blood-alcohol contents. Defense counsel extensively cross-examined Deslate about
the basis for his assumptions and opinions about these issues. The jury was clearly
aware that there were different possibilities for burn-off rates and the variables in
the calculation.

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Defendant never argued Deslate's expert testimony on retrograde extrapolation
was unreliable or lacked any scientific basis because he did not know defendant's
individual burn-off rate. On appeal, however, defendant asserts he preserved this
issue because his pretrial motion in limine asserted such evidence would violate
his due process rights. While defendant's motion raised due process as an issue, it
expressly based that objection on the possibility Deslate would testify to his
opinion that the burn-off rate was 0.02 percent for everyone. At the evidentiary
hearing, defense counsel conceded that “the case law says that retrograde
extrapolation is a legitimate prosecution tool in support of circumstantial evidence
with regard to what the BAC may have been at the time of the driving,” and
explained his motion sought to exclude any “blanket statement” that 0.02 percent
was the burn-off rate for everyone because “we are all different.” Defendant's due
process argument did not incorporate objections to the general reliability of
retrograde extrapolation.
Farias, 2014 WL 6066121, at *7–11.
a. Procedural Default
As an initial matter, Respondent contends that the claim is procedurally barred because no
contemporaneous objection was made at trial. The Court agrees.
A federal court will not review a claim of federal constitutional error raised by a state

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habeas petitioner if the state court determination of the same issue “rests on a state law ground

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that is independent of the federal question and adequate to support the judgment.” Coleman v.

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Thompson, 501 U.S. 722, 729 (1991). This rule also applies when the state court's determination

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is based on the petitioner's failure to comply with procedural requirements, so long as the

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procedural rule is an adequate and independent basis for the denial of relief. Id. at 730. For the

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bar to be “adequate,” it must be “clear, consistently applied, and well-established at the time of

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the [ ] purported default.” Fields v. Calderon, 125 F.3d 757, 762 (9th Cir. 1997). For the bar to

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be “independent,” it must not be “interwoven with the federal law.” Michigan v. Long, 463 U.S.

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1032, 1040-41 (1983). If an issue is procedurally defaulted, a federal court may not consider it
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unless the prisoner can demonstrate cause for the default and actual prejudice as a result of the

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alleged violation of federal law, or demonstrate that failure to consider the claims will result in a

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fundamental miscarriage of justice. Coleman, 501 U.S. at 749-50.

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In Melendez v. Pliler, 288 F.3d 1120, 1125 (9th Cir. 2002), the Ninth Circuit held that

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California's contemporaneous objection doctrine is clear, well-established, and has been

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consistently applied when a party has failed to make any objection to the admission of evidence.

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In Vansickel v. White, 166 F.3d 953 (9th Cir. 1999), the Ninth Circuit held that the

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contemporaneous objection bar is an adequate and independent state procedural rule. In this case,

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Petitioner did not object to the general use of retrograde extrapolation as being unreliable or

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lacking in any scientific basis. Further, Petitioner has not demonstrated cause for the default or

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actual prejudice resulting therefrom. Thus, the claim is procedurally defaulted.

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b. Legal Standard and Analysis
A federal court in a habeas proceeding does not review questions of state evidence law.

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Our inquiry is limited to whether the evidence ruling “resulted in a decision that was contrary to,

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or involved an unreasonable application of, clearly established Federal law, as determined by the

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Supreme Court of the United States.” 28 U.S.C. § 2254(d)(1). Therefore, habeas relief is

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unavailable for Petitioner’s claim that the admission of the expert’s testimony violated state

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evidentiary law.

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With respect to the admission of evidence, there is no Supreme Court precedent governing

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a court’s discretionary decision to admit evidence as a violation of due process. In Holley v.

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Yarborough, the Ninth Circuit stated:

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The Supreme Court has made very few rulings regarding the admission of
evidence as a violation of due process. Although the Court has been clear that a
writ should be issued when constitutional errors have rendered the trial
fundamentally unfair, [Citation omitted.], it 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. Absent such “clearly
established Federal law,” we cannot conclude that the state court's ruling was an
“unreasonable application.” [Citation omitted.] Under the strict standards of
AEDPA, we are therefore without power to issue the writ . . . .

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Holley v. Yarborough, 568 F.3d 1091, 1101 (9th Cir. 2009); see Moses v. Payne, 555 F.3d 742,

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760 (9th Cir. 2008) (holding that trial court did not abuse its discretion in excluding expert
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testimony “[b]ecause the Supreme Court’s precedents do not establish a principle for evaluating

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discretionary decisions to exclude the kind of evidence at issue here”). Since there is no clearly

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established Supreme Court precedent governing a trial court’s discretionary decision to admit

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evidence as a violation of due process, habeas relief is foreclosed. Id. Therefore, Petitioner

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cannot demonstrate that the state court decision was contrary to, or involved an unreasonable

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application of, clearly established federal law. See 28 U.S.C. § 2254(d).

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Nevertheless, there can be habeas relief for the admission of evidence when the evidence

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“is so extremely unfair that its admission violates fundamental conceptions of justice.” Perry v.

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New Hampshire, 565 U.S. 228, 237 (2012). Only if there are no permissible inferences that the

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jury may draw from the evidence can its admission rise to the level of a due process violation. Id.

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at 920. Here, Petitioner has failed to show that no permissible inferences existed that the jury

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might draw from the challenged evidence; accordingly, the claim does not rise to the level of a

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federal constitutional claim and is therefore merely an issue of state law that is not cognizable in

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these proceedings. Moreover, the challenged evidence was relevant and probative of various

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elements of the offenses with which Petitioner was charged. For the foregoing reasons, the claim

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should be denied.

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2.

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In a related claim, Petitioner faults defense counsel for failing to object and therefore

Ineffective Assistance of Counsel

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preserve his due process claim discussed above. This claim was also presented on direct appeal

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and rejected by the Fifth DCA in a reasoned decision, as follows:

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In the alternative, defendant contends defense counsel was prejudicially ineffective
for failing to preserve these issues below. To prevail on an ineffective assistance
claim, “defendant must first show that ‘“counsel's representation fell below an
objective standard of reasonableness ... under prevailing professional norms.”’
[Citation.] Second, defendant must show that the inadequacy was prejudicial, that
is, ‘“there is 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 confidence in the outcome.”’ [Citation.] [¶] If
‘counsel's omissions resulted from an informed tactical choice within the range of
reasonable competence, the conviction must be affirmed.’ [Citation.] When,
however, the record sheds no light on why counsel acted or failed to act in the
manner challenged, the reviewing court should not speculate as to counsel's
reasons. To engage in such speculations would involve the reviewing court ‘“in the
perilous process of second-guessing.”’ [Citation.] Because the appellate record
ordinarily does not show the reasons for defense counsel's actions or omissions, a
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claim of ineffective assistance of counsel should generally be made in a petition
for writ of habeas corpus, rather than on appeal. [Citations.]” (People v. Diaz
(1992) 3 Cal.4th 495, 557–558.)
Defendant asserts the court would have been compelled to grant a defense motion
to completely exclude all evidence of retrograde extrapolation because such
evidence has been questioned by the California Supreme Court and the courts of
other states. As we have explained, however, the California Supreme Court has
held such evidence is admissible and that variations go to the weight rather than
the admissibility of the expert opinion testimony. (People v. Thompson, supra, 38
Cal.4th at p. 826 (maj. opn. of Baxter, J.), id. at p. 834 (dis. opn. of Werdegar, J.).)
As for other jurisdictions, decisions of sister state courts are not binding on
California courts, and only have persuasive value where the issues raised involve
conflicting policies and the case is one of first impression in California. (Savett v.
Davis (1994) 29 Cal.App.4th Supp. 13, 16, fn. 2.) The admissibility of retrograde
extrapolation has been settled by the California Supreme Court and we are bound
by those holdings. (Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d
450, 455.)

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As for the cases cited by defendant from other states, these opinions found
evidence of retrograde extrapolation is generally reliable and admissible, but
faulted the failure of the experts in those cases to set forth the foundational basis
for their opinions. None of these cases held the expert must know the individual's
particularized burn-off rate. For example, in United States v. DuBois (8th
Cir.1981) 645 F.2d 642, the court held the expert's testimony on retrograde
extrapolation was speculative because the defendant had consumed an unknown
amount of alcohol between the time he was driving, and when he was taken into
custody and given a breath test. (Id. at p. 645.) In so holding, however, the court
acknowledged the reliability and admissibility of expert testimony about
retrograde extrapolation under the appropriate circumstances:
“If a defendant is placed in custody immediately after an accident and
remains under the control of officers or others and consumes no more
alcohol before the test is given, a conviction may be based upon the test
results and expert testimony estimating the blood alcohol level at the time
of the accident. See, e.g., State v. Parson, 226 Kan. 491, 601 P.2d 680, 683
(1979); State v. Hendrickson, 240 N.W.2d 846, 853 (N.D.1976); Toms v.
State, 95 Okl.Cr. 60, 239 P.2d 812, 820 (1952). See generally McCormick's
Handbook of the Law of Evidence, § 209 at 512 (2d ed.1972). See also
Ullman v. Overnite Transportation Co., 563 F.2d 152 (5th Cir.1977)
(personal injury case; no indication of intervening drinking or unsupervised
period; permissible to extrapolate back, objections go to weight). Cf.
United States v. DeCoteau, 516 F.2d 16 (8th Cir.1975) (no indication of
intervening drinking or unsupervised period)....” (Id. at p. 644.)

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In Mata v. State (Tex.Ct.App.2001) 46 S.W.3d 902, cited by defendant, the court
held the expert's testimony about retrograde extrapolation was unreliable and
speculative because it was riddled with inconsistencies that “prevented him from
explaining the science to the court with any clarity.” (Id. at p. 917.) Mata clarified
that it was not determining “the exact blueprint for reliability in every case.”
(Ibid.)
“[T]he science of retrograde extrapolation can be reliable in a given case.
The expert's ability to apply the science and explain it with clarity to the
court is a paramount consideration. In addition, the expert must
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demonstrate some understanding of the difficulties associated with a
retrograde extrapolation. He must demonstrate an awareness of the
subtleties of the science and the risks inherent in any extrapolation. Finally,
he must be able to clearly and consistently apply the science.
“The court evaluating the reliability of a retrograde extrapolation should
also consider (a) the length of time between the offense and the test(s)
administered; (b) the number of tests given and the length of time between
each test; and (c) whether, and if so, to what extent, any individual
characteristics of the defendant were known to the expert in providing his
extrapolation. These characteristics and behaviors might include, but are
not limited to, the person's weight and gender, the person's typical drinking
pattern and tolerance for alcohol, how much the person had to drink on the
day or night in question, what the person drank, the duration of the
drinking spree, the time of the last drink, and how much and what the
person had to eat either before, during, or after the drinking.
“Obviously, not every single personal fact about the defendant must be
known to the expert in order to produce an extrapolation with the
appropriate level of reliability. As the Kentucky Supreme Court has
recognized, if this were the case, no valid extrapolation could ever occur
without the defendant's cooperation, since a number of facts known only to
the defendant are essential to the process.” (Id. at p. 916, italics added.)
Mata did not hold that an expert must know a subject's individualized burn-off rate
in order for retrograde extrapolation testimony to be reliable and admissible. In
light of Mata, McCormick recognized: “Some courts have emphasized the need
for care in admitting retrograde extrapolations, but arguments that the
extrapolation process itself is so uncertain as to be inadmissible under Frye or
Daubert have not prevailed.” (1 McCormick on Evidence (7th ed.2013) § 205, fn.
omitted, citing Daubert v. Merrell Dow Pharmaceuticals, Inc. (1993) 509 U.S.
579 & Frye v. United States (1923) 293 F. 1013.)

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The other cases cited by defendant are not helpful to his claims. In People v.
Emery (Colo.1990) 812 P.2d 665, defendant argued the prosecution's expert
testimony on retrograde extrapolation was scientifically unreliable. The court
declined to address the issue, and held defendant's conviction for driving under the
influence was supported by the statutory inference that if a chemical test reveals
the defendant's blood alcohol level was above the legal limit within a reasonable
time after the alleged offense, the jury may infer defendant was driving under the
influence. Emery held that since defendant's conviction was supported by the
statutory inference, the prosecution's expert testimony regarding retrograde
extrapolation was irrelevant and any error was harmless. (Id. at pp. 667–668.)
In Com. v. Loeper (1995) 541 Pa. 393 [663 A.2d 669], the court held the
prosecution's evidence of defendant's intoxication was too speculative because it
was based on the officer's description of defendant's behavior, and the blood test
taken several hours after he was driving was insufficient to trigger the statutory
inference that his blood-alcohol level exceeded the legal limit when he was
driving. (Id. at pp. 396–399.) In Com. v. Gonzalez (1988) 519 Pa. 116 [546 A.2d
26], the court held the expert's testimony was speculative because there was no
evidence when defendant consumed his last drink, which undermined his opinion
about what defendant's blood-alcohol content might have been when he was
driving. (Id. at pp. 133–135.)

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In this case, Deslate was presented with a series of hypothetical questions based on
the individualized factors cited by Mata—defendant's gender, his height and
weight, the amount he had consumed, the time between the crash and the blood
test, and the results from both the prosecution and defense blood tests. We thus
conclude the court properly admitted Deslate's testimony and defense counsel was
not prejudicially ineffective for declining to bring a meritless motion to exclude
his testimony based on the absence of his individualized burn-off rate. (People v.
Diaz, supra, 3 Cal.4th at p. 562.)

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Farias, 2014 WL 6066121, at *11–13.
a. Legal Standard

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Effective assistance of counsel is guaranteed by the Due Process Clause of the Fourteenth

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Amendment. Evitts v. Lucey, 469 U.S. 387, 391-405 (1985). Claims of ineffective assistance of

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counsel are reviewed according to Strickland's two-pronged test. Miller v. Keeney, 882 F.2d

11

1428, 1433 (9th Cir. 1989); United States v. Birtle, 792 F.2d 846, 847 (9th Cir.1986); see also

12

Penson v. Ohio, 488 U.S. 75(1988) (holding that where a defendant has been actually or

13

constructively denied the assistance of counsel altogether, the Strickland standard does not apply

14

and prejudice is presumed; the implication is that Strickland does apply where counsel is present

15

but ineffective).

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To prevail, Petitioner must show two things. First, he must establish that counsel’s

17

deficient performance fell below an objective standard of reasonableness under prevailing

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professional norms. Strickland v. Washington, 466 U.S. 668, 687-88 (1984). Second, Petitioner

19

must establish that he suffered prejudice in that there was a reasonable probability that, but for

20

counsel’s unprofessional errors, he would have prevailed on appeal. Id. at 694. A “reasonable

21

probability” is a probability sufficient to undermine confidence in the outcome of the trial. Id.

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The relevant inquiry is not what counsel could have done; rather, it is whether the choices made

23

by counsel were reasonable. Babbitt v. Calderon, 151 F.3d 1170, 1173 (9th Cir. 1998).

24

With the passage of the AEDPA, habeas relief may only be granted if the state-court

25

decision unreasonably applied this general Strickland standard for ineffective assistance.

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Knowles v. Mirzayance, 556 U.S. 111, 122 (2009). Accordingly, the question “is not whether a

27

federal court believes the state court’s determination under the Strickland standard “was incorrect

28

but whether that determination was unreasonable–a substantially higher threshold.” Schriro v.
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Landrigan, 550 U.S. 465, 473 (2007); Knowles, 556 U.S. at 123. In effect, the AEDPA standard

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is “doubly deferential” because it requires that it be shown not only that the state court

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determination was erroneous, but also that it was objectively unreasonable. Yarborough v.

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Gentry, 540 U.S. 1, 5 (2003). Moreover, because the Strickland standard is a general standard, a

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state court has even more latitude to reasonably determine that a defendant has not satisfied that

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standard. See Yarborough v. Alvarado, 541 U.S. 652, 664 (2004) (“[E]valuating whether a rule

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application was unreasonable requires considering the rule’s specificity. The more general the

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rule, the more leeway courts have in reaching outcomes in case-by-case determinations”).

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b. Analysis
The state court concluded that the admission of the expert testimony concerning

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retrograde alcohol extrapolation was proper under California law. In addition, the state court

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noted that other states have determined that such evidence is generally reliable and admissible.

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That being the case, the state court concluded that any defense motion would have been meritless.

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The court determined that counsel did not render ineffective assistance by failing to bring a

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meritless motion.

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Petitioner fails to demonstrate that the state court rejection of his claim was contrary to or

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an unreasonable application of Strickland. Since the admission of the testimony was proper, any

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objection would have been meritless. As reasonably found by the state court, defense counsel

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cannot be faulted for failing to bring a meritless motion. For the same reasons, Petitioner cannot

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demonstrate prejudice resulting from counsel’s alleged error. Accordingly, the claim should be

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rejected.

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3.

Consecutive Terms

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Petitioner alleges that the sentencing court erred by imposing consecutive terms rather

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than concurrent terms for his convictions in counts four and five. This claim was raised on direct

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appeal. The Fifth DCA rejected the claim as follows:

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Defendant contends the court abused its discretion when it imposed consecutive
determinate terms for count IV, gross vehicular manslaughter of Rodriguez, and
count V, felony driving under the influence causing great bodily injury to Valdez,
because the offenses were based on a single course of conduct.
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A. Background
Defendant was convicted of counts III and IV, gross vehicular manslaughter of
Lyon and Rodriguez while intoxicated; count V, driving under the influence
causing injury to Valdez; and count VI, driving with a blood-alcohol content of
0.08 percent or greater causing injury to Valdez.

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At the sentencing hearing, the court reviewed the probation report, which
recommended consecutive sentences for counts III, IV, and V because the offenses
were violent felonies and involved multiple victims. The probation report stated
Penal Code section 654 only applied to count VI since it involved Valdez, the
victim in count V.

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Also in the probation report, defendant said the crash was a tragedy because Lyon,
his best friend, died in the “terrible accident,” but he also was a victim “because
now I have to live with this.” Defendant stated he was not legally drunk and he
would appeal because “[m]y test is as good as DOJ[']s.” Defendant stated he
completed a DUI class after his 2004 conviction, but admitted that since that time
he consumed a pint of whiskey a week. He started using cocaine in 2009, and he
was using cocaine every couple of weeks at the time of the crash.

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Defense counsel acknowledged the term for count III, gross vehicular
manslaughter while intoxicated of Lyon, was 15 years to life. Counsel argued the
court should imposed concurrent terms for the other offenses because the crash
was an “instantaneous event wherein these folks were killed or injured,” it was a
single act of violence, and the offenses were not independent of each other.
Counsel also asked the court to impose concurrent terms because otherwise
defendant (born 1955) would never get out of prison.

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The prosecutor replied consecutive terms were appropriate because defendant was
convicted of committing crimes of violence against multiple persons, and he was
aware of the risks of drunk driving based on the admonishments he received for
his prior conviction.
The court found one aggravating circumstance, that defendant's prior performance
on probation was not satisfactory because he was convicted of an offense while on
probation; and one mitigating circumstance, that defendant successfully completed
probation after it had been revoked and reinstated.

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The court found that Penal Code section 654 did not apply to counts III, IV, and V
because the offenses involved separate victims. It applied to count VI because the
offense involved the same victim, Valdez, as in count V.

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The court imposed the midterm of two years for count V, driving under the
influence causing injury to Valdez, plus a consecutive term of three years for the
great bodily injury enhancement. The court stayed the term imposed for count VI,
driving with a blood-alcohol content of 0.08 percent or greater causing injury to
Valdez.

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As to counts III and IV, gross vehicular manslaughter of Lyon and Rodriguez
while intoxicated, the court imposed consecutive terms of 15 years to life for each
offense, for an aggregate term of 30 years to life plus five years.

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B. Analysis
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Defendant contends the superior court abused its discretion by imposing
consecutive instead of concurrent terms for counts III, IV, and V, in contradiction
of the California Rules of Court. In making this argument, however, defendant
fails to address several well recognized legal principles that are applicable to this
case. “[I]t is generally appropriate that a defendant be subject to greater
punishment for committing an offense if his or her commission of that offense
causes injuries to multiple persons. [Citations.]” (People v. Weaver (2007) 149
Cal.App.4th 1301, 1331.) “[V]ehicular manslaughter with gross negligence
constitutes a crime of violence against the person. [Citation.]” (People v.
McFarland (1989) 47 Cal.3d 798, 803.) “[W]here, as here, a defendant commits
vehicular manslaughter with gross negligence—an act of violence against the
person—he may properly be punished for injury to a separate individual that
results from the same incident.” (Id. at p. 804, fn. omitted.) When the defendant is
charged with “vehicular manslaughter as to one victim and drunk driving with
injury as to another, the imposition of separate sentences does not violate [Penal
Code] section 654....” (Id. at pp. 804–805.)

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Farias, 2014 WL 6066121, at *13–14.
a. Legal Standard and Analysis

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It is well-settled that federal habeas relief is not available to state prisoners challenging

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state law. Estelle v. McGuire, 502 U.S. 62, 67 (1991) (“We have stated many times that federal

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habeas corpus relief does not lie for errors of state law); Langford v. Day, 110 F.3d 1380, 1389

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(9th Cir. 1997) (“alleged errors in the application of state law are not cognizable in federal habeas

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corpus” proceedings).
Petitioner challenges the state court’s application of state sentencing laws. Such a claim

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does not give rise to a federal question cognizable on federal habeas review. Lewis v. Jeffers,

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497 U.S. 764 (1990); Sturm v. California Youth Authority, 395 F.2d 446, 448 (9th Cir. 1967) (“a

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state court’s interpretation of its [sentencing] statute does not raise a federal question”). To state a

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claim, Petitioner must demonstrate that his sentence was “so arbitrary or capricious as to

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constitute an independent due process” violation. Richmond v. Lewis, 506 U.S. 40, 50 (1992).
Here, Petitioner fails to show that his sentence was so arbitrary as to violate his due

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process rights. His claim is premised entirely on a violation of state law. Therefore, Petitioner

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fails to state a cognizable federal claim and it should be denied. Poland v. Stewart, 169 F.3d 573,

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584 (9th Cir. 1998) (a petitioner may not transfer a state law issue into a federal one merely by

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asserting a violation of due process).

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IV.

RECOMMENDATION
Accordingly, the Court RECOMMENDS that the Petition for Writ of Habeas Corpus be

DENIED with prejudice on the merits.
This Findings and Recommendation is submitted to the United States District Court Judge

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assigned to the case, pursuant to the provisions of 28 U.S.C. § 636 (b)(1)(B) and Rule 304 of the

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Local Rules of Practice for the United States District Court, Eastern District of California.

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Within 21 days after being served with a copy of this Findings and Recommendation, any party

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may file written objections with the Court and serve a copy on all parties. Such a document

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should be captioned “Objections to Magistrate Judge’s Findings and Recommendation.” Replies

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to the Objections shall be served and filed within 10 days after service of the Objections. The

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Court will then review the Magistrate Judge’s ruling pursuant to 28 U.S.C. § 636 (b)(1)(C). The

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parties are advised that failure to file objections within the specified time may waive the right to

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appeal the Order of the District Court. Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991).

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IT IS SO ORDERED.
Dated:

April 5, 2017

/s/ Jennifer L. Thurston
UNITED STATES MAGISTRATE JUDGE

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