Cardenas v Sisto

Filing 32

ORDER DISMISSING CASE signed by Senior Judge Terry J. Hatter, Jr on 9/4/12. The petition is DENIED. CASE CLOSED. (Manzer, C)

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United States District Court
Eastern District of California

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ERWIN CARDENAS,
Petitioner,

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07-CV-02404 TJH

v.
D.K. SISTO, WARDEN,

Order
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Respondent.

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In 2003, the wife of Erwin Cardenas (“Petitioner”) obtained a restraining order

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against him and divorced him. Petitioner responded by assaulting his ex-wife as she was

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leaving her house one morning. During the assault – which two neighbors witnessed –

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Petitioner repeatedly stabbed the victim with a knife he had bought days earlier.

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Within hours, police arrested Petitioner. At the time, Petitioner’s hands were

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shaking, and he claimed to be going through alcoholic withdrawal. However, Petitioner

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also claimed that he had been drinking that morning and was shaking due to nervousness.

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Petitioner’s questioning was postponed because he claimed not to understand his

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Miranda rights. When questioning resumed the next day, Petitioner acknowledged that

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he had attacked the victim with a knife. Petitioner said, after drinking ten beers, he went

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to the victim’s house to talk to her. Then, Petitioner said, he started jabbing his knife at

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the victim in order to scare her.
Order – Page 1 of 6

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At trial, Petitioner testified that he had taken the knife to the victim’s home only

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to slash her car tires. According to Petitioner’s testimony, the victim began running and

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screaming when she saw the knife in Petitioner’s hand – at which point, Petitioner forgot

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that he was holding the knife, and accidentally stabbed the victim repeatedly while trying

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only to restrain her.

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The jury found Petitioner guilty of attempted premeditated murder, stalking in

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violation of a restraining order, willfully inflicting corporal injury on a spouse, assault

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with a deadly weapon, and violating a restraining order. Petitioner was sentenced to

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prison for an indeterminate life term with a consecutive nine-year term.

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Petitioner now seeks a writ of habeas corpus from this Court.

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Habeas corpus is a guard against extreme breakdowns in state criminal justice

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systems – not a substitute for ordinary appellate error correction. Harrington v. Richter,

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__ U.S. __, 131 S. Ct. 770, 786, 178 L. Ed. 2d 624, 640 (2011). Thus, to obtain relief,

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Petitioner must show that prior state court adjudication of his claims resulted in a

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decision which was (1) incorrect in light of federal law clearly established by the

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Supreme Court, or (2) based on an unreasonable determination of the facts in light of the

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evidence presented in state court proceedings. 28 U.S.C. § 2254(d).

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Petitioner argues that he is entitled to relief given certain aspects of his pre-trial,

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trial, and sentencing proceedings. For the most part, Petitioner asserts that these

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proceedings were tainted by the combined errors of his attorney and the judge who

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presided over Petitioner’s trial and sentencing. With respect to Petitioner’s ineffective

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assistance of counsel claims, Strickland v. Washington, 466 U.S. 668, 689-92, 104 S. Ct.

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2052, 2065-67, 80 L. Ed. 2d 674, 694-96 (1984), requires that Petitioner (1) overcome

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the strong presumption that his counsel rendered adequate assistance, and (2)

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demonstrate, with reasonable probability, that he was prejudiced by his counsel’s

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deficient performance. Therefore, on habeas review, “[t]he question is whether there is

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any reasonable argument that counsel satisfied Strickland's deferential standard.”

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Harrington, 131 S. Ct. at 788.
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Petitioner’s first claim involves only the alleged errors of his attorney. Petitioner

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claims that his attorney rendered ineffective assistance of counsel by advising Petitioner

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not to accept a fifteen-year plea bargain, and by not telling the prosecution of Petitioner’s

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acceptance of the offered plea bargain. However, the evidence suggests that no such plea

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bargain existed. The prosecution, which had been ordered to produce all documents

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relating to plea bargains offered to Petitioner, found only two documents, both of which

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indicate that a plea bargain of fifteen years to life was offered to Petitioner. Moreover,

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in a note Petitioner wrote to his attorney – a note which Petitioner claims demonstrates

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his supposed acceptance of a fifteen-year offer – Petitioner indicated his willingness to

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accept a fifteen-year offer, but wrote and underlined “No Life.” Thus, Petitioner’s

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purported acceptance is more like a counter-offer; which may explain why one of the

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prosecution’s documents states that its fifteen-year to life offer was rejected.

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Because Petitioner has not established that a fifteen-year offer existed, Petitioner’s

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claim that his attorney erroneously refused to deliver Petitioner’s acceptance of this offer,

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and unreasonably counseled against such acceptance, must fail. Furthermore, if a fifteen-

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year offer did exist, the best Petitioner can show is that he accepted this offer too late,

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as a letter from Petitioner’s trial attorney states “[t]he … DA took back the … offer so

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there was not much we could do.” Petitioner provides no details – such as offer and

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acceptance dates – which might demonstrate that his attorney contributed to the

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prosecution’s withdrawal of any offer.

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Petitioner’s second set of claims relates to allegedly erroneous jury instructions.

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Petitioner believes that the jury should have been instructed that (1) the defense of

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accident, to be successful, only had to raise a reasonable doubt about the intentionality

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of Petitioner’s assault; (2) the jury should find Petitioner guilty of attempted voluntary

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manslaughter if it had a reasonable doubt as to whether Petitioner acted with malice; (3)

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the defense’s argument that Petitioner was motivated by heat of passion, to be successful,

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only had to raise a reasonable doubt about Petitioner’s malice. Also, Petitioner believes

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that the jury should not have been instructed to reach a verdict on greater offenses before
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considering lesser offenses.

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Petitioner’s ineffective assistance of counsel claims relating to jury instructions

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must fail because Petitioner cannot show that he was prejudiced by his attorney’s

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allegedly deficient performance.

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premeditated murder beyond a reasonable doubt. This verdict expressed the jury’s lack

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of doubt about the Petitioner’s intentionality and malice – and the consideration of lesser

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charges would not have created additional doubt about either of these factual findings.

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Thus, Petitioner was not harmed by any alleged deficiencies in the jury instructions.

The jury found Petitioner guilty of attempted

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Petitioner, also, claims that the jury instructions given violated his right to due

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process. To obtain relief, Petitioner must show a “reasonable likelihood that the jury

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applied [the] instruction[s] in a way that relieved the State of its burden of proving every

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element of the crime beyond a reasonable doubt.” Waddington v. Sarausad, 555 U.S.

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179, 190-91, 129 S. Ct. 823, 831, 172 L. Ed. 2d 532, 542 (2009). Moreover, Petitioner

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must show that no reasonable court could have determined otherwise. Waddington, 555

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U.S. at 196, n. 7. Petitioner cannot make such a showing because the jury was properly

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instructed regarding the overall burden of proof, there is no evidence to suggest that the

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jury had difficulty understanding this instruction, and the jury would not have found

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Petitioner guilty of attempted premeditated murder had they doubted Petitioner’s

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intentionality or malice.

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Petitioner’s third set of claims relate to the non-admission of apology letters

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Petitioner wrote to his family and Petitioner’s post-arrest medical records. Petitioner

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claims that the letters of apology would have demonstrated that Petitioner did not intend

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to hurt his ex-wife, and that the medical records would have demonstrated that he was

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drunk when he assaulted the victim, and that his responses to post-arrest questioning

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were affected by medication he was given.

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Petitioner’s ineffective assistance of counsel claim relating to his apology letters

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must fail for lack of prejudice. If Petitioner’s testimony that he accidently stabbed his

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wife did not sway the jury, it is unreasonable to believe that his apology letters – which
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Petitioner has never produced and which Petitioner fails to describe in any detail – would

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have swayed the jury. Petitioner’s ineffective assistance of counsel claim relating to his

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post-arrest medical records must, also, fail, as Petitioner cannot show that his attorney

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performed deficiently. Petitioner’s attorney may have determined that attempting to

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admit these medical records would have caused the prosecution to focus more attention

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on disproving Petitioner’s claim that the medication he was given altered his responses

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to questioning. Thus, because Petitioner’s attorney may have strategically opted not to

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move to admit these medical records, Petitioner cannot conclusively demonstrate that his

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attorney performed ineffectively. See Harrington, 131 S. Ct. at 788-89.

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Petitioner, also, claims that the non-admission of these documents deprived him

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of his constitutional rights to due process and a fair trial. However, according to

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Petitioner, the request to admit the apology letters was withdrawn, and Petitioner never

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moved to admit the medical records. Thus, Petitioner was given ample opportunity, with

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aid of counsel, to meet the case of the prosecution – as required for Petitioner to have a

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fair trial. See Strickland, 466 U.S. at 685. Petitioner simply chose not to pursue the

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admission of these documents.

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Finally, Petitioner claims that the sentencing judge should not have imposed a

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four-year upper term sentence on Petitioner for his stalking conviction. This imposition,

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Petitioner claims, violated his constitutional right to a jury trial, because it was based on

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a fact not found by the jury – that the assault was particularly cruel, vicious, or callous.

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However, Petitioner waived his claim by not objecting to the imposition of the upper

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term sentence during his sentencing hearing. The Court cannot revisit this procedurally

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barred claim. See Dretke v. Haley, 541 U.S. 386, 388, 124 S. Ct. 1847, 1849, 158 L. Ed.

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2d 659, 666 (2004).

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Because none of Petitioner’s claims establishes error of the magnitude which

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would entitle Petitioner to relief, the errors Petitioner allege, taken together, do not

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entitle Petitioner to relief.

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Also, Petitioner’s requests for an evidentiary hearing is denied, because Petitioner
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fails to satisfy the requirements of 28 U.S.C. § 2254(e)(2).

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It is Ordered that the petition be, and hereby is, Denied.

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Date: September 4, 2012

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__________________________________

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Terry J. Hatter, Jr.
Senior United States District Judge

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Order – Page 6 of 6