Olivarez v. Diaz
Filing
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FINDINGS and RECOMMENDATIONS signed by Magistrate Judge Edmund F. Brennan on 6/24/15 RECOMMENDING that petitioners application for a writ of habeas corpus be denied. Referred to Judge Kimberly J. Mueller; Objections to F&R due within 14 days.(Dillon, M)
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UNITED STATES DISTRICT COURT
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FOR THE EASTERN DISTRICT OF CALIFORNIA
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GABRIEL OLIVAREZ,
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No. 2:13-cv-1046-KJM-EFB P
Petitioner,
vs.
FINDINGS AND RECOMMENDATIONS
RALPH DIAZ,
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Respondent.
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Petitioner is a state prisoner proceeding without counsel with a petition for a writ of
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habeas corpus pursuant to 28 U.S.C. § 2254. He challenges a judgment of conviction entered
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against him in the San Joaquin County Superior Court on charges of first degree murder,
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attempted murder, and being a felon in possession of a firearm, with various firearm sentence
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enhancements. He seeks federal habeas relief on the grounds that the evidence introduced at his
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trial is insufficient to support his conviction and his appellate counsel rendered ineffective
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assistance. Upon careful consideration of the record and the applicable law, the undersigned
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recommends that petitioner’s application for habeas corpus relief be denied.
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I. Background
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In its unpublished memorandum and opinion affirming petitioner’s judgment of
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conviction on appeal, the California Court of Appeal for the Third Appellate District provided the
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following factual summary:
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Defendant arrived at what was to be a fistfight between two men
over a woman. Just as the fight began, he pulled out a gun and fired
eight times, first wounding Efren Chavira and then killing his
younger brother Diego. The only evidence identifying defendant as
the shooter was the testimony of two other men present at the fight.
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***
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FACTS
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Ben Callaway had a child with his former girlfriend, Michelle
Zuloaga. Although they had been separated for three years,
Callaway and Zuloaga maintained a friendly relationship and
Callaway had visitation with his son. Callaway lived with Carlos
Munoz, who was Zuloaga's cousin. The two men were close and
called each other “cousin.”
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On Easter Sunday, Zuloaga went to a family barbeque with her
boyfriend, Nelson Chavira.1 When Callaway came by to pick up
his son, there was an altercation with Zuloaga's uncle, who did not
want Callaway on his property. That night, after returning home,
Zuloaga and Nelson got into an argument and Nelson hit Zuloaga.
She told him to get out and her sister drove Nelson home. Zuloaga
called Callaway and complained about Nelson hitting her.
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Nelson, who was upset about Zuloaga's relationship with Callaway,
also called Callaway. His purpose in calling was to “squash it” or
handle their business. After several calls where Nelson challenged
Callaway, they agreed to meet to fight. Callaway testified he was
ignoring Nelson's challenges until Nelson mentioned Callaway's
son. Although they intended to fight one-on-one, Nelson asked his
brothers, Efren and Diego, to come and back him up. All three
armed themselves with knives or a corkscrew.
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Munoz readily volunteered to join Callaway since it was clear that
more than one person would be at the fight. Concerned about a fair
fight, Munoz also called Ruben Carrillo, telling him that his cousin
was about to fight and to meet them. Carrillo agreed. Callaway
claimed Munoz did not tell him about the call to Carrillo until they
arrived at the fight.2
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The group met in a Safeway parking lot. Callaway and Munoz
arrived in a silver Mercedes, Carrillo and defendant in a blue SUV;
the three Chavira brothers came on foot. Callaway headed towards
the brothers, asking, “Who's Nelson?” Nelson identified himself.
Nelson threw a punch at Callaway and Callaway ducked. Suddenly
shots rang out, eight in all.
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Because the three Chavira brothers share the same last name, we refer to brothers
Nelson, Efren, and Diego Chavira by their respective first names.
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Carrillo pled guilty to being an accessory (Pen.Code, § 32) and possession of a firearm
by a felon (Pen.Code, § 12021, subd. (a)). The plea bargain did not require him to testify.
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Just before the shooting, Efren noticed a man (later identified as
defendant Gabriel Isidore Olivarez) with a hood over his face and
gloves on, with a gun in his hand. Efren asked him, “Why you got
to come like that?” meaning why did he have a gun. Defendant
then shot Efren in the chest. Efren suffered wounds to his stomach
and his arm was broken, requiring a metal rod and seven screws.
Defendant continued to fire and hit Diego in the arm, thigh and
back – the fatal shot.
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Callaway and Munoz ran back to the Mercedes and left. The SUV
also left. On the way home, Munoz called Carrillo and asked,
“What the fuck? Why you guys do that for?” He heard defendant
in the background say, “It's either going to be me or them.”
Carrillo and defendant went to Munoz's house and told Munoz and
Callaway that everything would be okay if everyone kept their
mouths shut.3 Defendant said he had seen someone with a weapon
and it would be “them before me.” He admitted he knew that he
had shot someone twice in the chest.
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The jury found defendant guilty of first degree murder (Pen.Code, §
187) and attempted murder (Pen.Code, §§ 664/187), both with
various firearm enhancements (Pen.Code, § 12022.53, subds.(b),
(c), and (d)), and being a felon in possession of a firearm
(Pen.Code, § 12021, subd. (a)). In a bifurcated proceeding, the
court found defendant had a strike prior (Pen.Code, §§ 667, subd.
(d); 1170.12, subd. (b)) and two prior prison terms (Pen.Code, §
667.5, subd. (b)). Defendant was sentenced to 118 years to life in
prison.
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People v. Olivarez, No. C065061, 2012 WL 243196, **1-2 (Cal.App. 3 Dist. January 26, 2012).
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After petitioner’s judgment of conviction was affirmed by the California Court of Appeal,
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he filed a petition for a writ of habeas corpus in the California Supreme Court. Resp’t’s Lodg.
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Doc. 14. Therein, he raised for the first time the claims that he raises in the petition before this
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court. Id. The California Supreme Court summarily denied that petition by order dated April 10,
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2013. Resp’t’s Lodg. Doc. 15.
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Munoz testified about this meeting at trial. Callaway told detectives about it in his
second interview. At trial, Callaway testified he let Carrillo in the house and then went back
upstairs. He denied he spoke with Carrillo and defendant. When impeached with his interview,
Callaway claimed he told the detectives only what he had learned from Munoz and Detective
Silva. There is no Detective Silva in the San Joaquin Sheriff’s Department.
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II. Standards of Review Applicable to Habeas Corpus Claims
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An application for a writ of habeas corpus by a person in custody under a judgment of a
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state court can be granted only for violations of the Constitution or laws of the United States. 28
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U.S.C. § 2254(a). A federal writ is not available for alleged error in the interpretation or
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application of state law. See Wilson v. Corcoran, 562 U.S.___, ___, 131 S. Ct. 13, 16 (2010);
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Estelle v. McGuire, 502 U.S. 62, 67-68 (1991); Park v. California, 202 F.3d 1146, 1149 (9th Cir.
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2000).
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Title 28 U.S.C. § 2254(d) sets forth the following standards for granting federal habeas
corpus relief:
An application for a writ of habeas corpus on behalf of a
person in custody pursuant to the judgment of a State court shall not
be granted with respect to any claim that was adjudicated on the
merits in State court proceedings unless the adjudication of the
claim (1) resulted in a decision that was contrary to, or involved
an unreasonable application of, clearly established Federal law, as
determined by the Supreme Court of the United States; or
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(2) resulted in a decision that was based on an unreasonable
determination of the facts in light of the evidence presented in the
State court proceeding.
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For purposes of applying § 2254(d)(1), “clearly established federal law” consists of
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holdings of the United States Supreme Court at the time of the last reasoned state court decision.
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Thompson v. Runnels, 705 F.3d 1089, 1096 (9th Cir. 2013) (citing Greene v. Fisher, ___ U.S.
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___, 132 S.Ct. 38 (2011); Stanley v. Cullen, 633 F.3d 852, 859 (9th Cir. 2011) (citing Williams v.
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Taylor, 529 U.S. 362, 405-06 (2000)). Circuit court precedent “may be persuasive in determining
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what law is clearly established and whether a state court applied that law unreasonably.” Stanley,
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633 F.3d at 859 (quoting Maxwell v. Roe, 606 F.3d 561, 567 (9th Cir. 2010)). However, circuit
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precedent may not be “used to refine or sharpen a general principle of Supreme Court
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jurisprudence into a specific legal rule that th[e] [Supreme] Court has not announced.” Marshall
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v. Rodgers, 133 S. Ct. 1446, 1450 (2013) (citing Parker v. Matthews, 132 S. Ct. 2148, 2155
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(2012) (per curiam)). Nor may it be used to “determine whether a particular rule of law is so
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widely accepted among the Federal Circuits that it would, if presented to th[e] [Supreme] Court,
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be accepted as correct. Id. Further, where courts of appeals have diverged in their treatment of
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an issue, it cannot be said that there is “clearly established Federal law” governing that issue.
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Carey v. Musladin, 549 U.S. 70, 77 (2006).
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A state court decision is “contrary to” clearly established federal law if it applies a rule
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contradicting a holding of the Supreme Court or reaches a result different from Supreme Court
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precedent on “materially indistinguishable” facts. Price v. Vincent, 538 U.S. 634, 640 (2003).
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Under the “unreasonable application” clause of § 2254(d)(1), a federal habeas court may grant the
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writ if the state court identifies the correct governing legal principle from the Supreme Court’s
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decisions, but unreasonably applies that principle to the facts of the prisoner’s case. 4 Lockyer v.
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Andrade, 538 U.S. 63, 75 (2003); Williams, 529 U.S. at 413; Chia v. Cambra, 360 F.3d 997, 1002
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(9th Cir. 2004). In this regard, a federal habeas court “may not issue the writ simply because that
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court concludes in its independent judgment that the relevant state-court decision applied clearly
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established federal law erroneously or incorrectly. Rather, that application must also be
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unreasonable.” Williams, 529 U.S. at 412. See also Schriro v. Landrigan, 550 U.S. 465, 473
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(2007); Lockyer, 538 U.S. at 75 (it is “not enough that a federal habeas court, in its independent
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review of the legal question, is left with a ‘firm conviction’ that the state court was ‘erroneous.’”).
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“A state court’s determination that a claim lacks merit precludes federal habeas relief so long as
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‘fairminded jurists could disagree’ on the correctness of the state court’s decision.” Harrington v.
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Richter, 562 U.S. 86,___,131 S. Ct. 770, 786 (2011) (quoting Yarborough v. Alvarado, 541 U.S.
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652, 664 (2004)). Accordingly, “[a]s a condition for obtaining habeas corpus from a federal
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court, a state prisoner must show that the state court’s ruling on the claim being presented in
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federal court was so lacking in justification that there was an error well understood and
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comprehended in existing law beyond any possibility for fairminded disagreement.” Richter,131
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S. Ct. at 786-87.
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Under § 2254(d)(2), a state court decision based on a factual determination is not to be
overturned on factual grounds unless it is “objectively unreasonable in light of the evidence
presented in the state court proceeding.” Stanley, 633 F.3d at 859 (quoting Davis v. Woodford,
384 F.3d 628, 638 (9th Cir. 2004)).
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If the state court’s decision does not meet the criteria set forth in § 2254(d), a reviewing
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court must conduct a de novo review of a habeas petitioner’s claims. Delgadillo v. Woodford,
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527 F.3d 919, 925 (9th Cir. 2008); see also Frantz v. Hazey, 533 F.3d 724, 735 (9th Cir. 2008)
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(en banc) (“[I]t is now clear both that we may not grant habeas relief simply because of §
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2254(d)(1) error and that, if there is such error, we must decide the habeas petition by considering
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de novo the constitutional issues raised.”).
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The court looks to the last reasoned state court decision as the basis for the state court
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judgment. Stanley, 633 F.3d at 859; Robinson v. Ignacio, 360 F.3d 1044, 1055 (9th Cir. 2004). If
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the last reasoned state court decision adopts or substantially incorporates the reasoning from a
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previous state court decision, this court may consider both decisions to ascertain the reasoning of
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the last decision. Edwards v. Lamarque, 475 F.3d 1121, 1126 (9th Cir. 2007) (en banc). “When
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a federal claim has been presented to a state court and the state court has denied relief, it may be
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presumed that the state court adjudicated the claim on the merits in the absence of any indication
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or state-law procedural principles to the contrary.” Richter, 131 S. Ct. at 784-85. This
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presumption may be overcome by a showing “there is reason to think some other explanation for
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the state court’s decision is more likely.” Id. at 785 (citing Ylst v. Nunnemaker, 501 U.S. 797,
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803 (1991)). Similarly, when a state court decision on a petitioner’s claims rejects some claims
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but does not expressly address a federal claim, a federal habeas court must presume, subject to
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rebuttal, that the federal claim was adjudicated on the merits. Johnson v. Williams, ___ U.S. ___,
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___, 133 S.Ct. 1088, 1091 (2013).
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Where the state court reaches a decision on the merits but provides no reasoning to
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support its conclusion, a federal habeas court independently reviews the record to determine
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whether habeas corpus relief is available under § 2254(d). Stanley, 633 F.3d at 860; Himes v.
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Thompson, 336 F.3d 848, 853 (9th Cir. 2003). “Independent review of the record is not de novo
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review of the constitutional issue, but rather, the only method by which we can determine whether
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a silent state court decision is objectively unreasonable.” Himes, 336 F.3d at 853. Where no
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reasoned decision is available, the habeas petitioner still has the burden of “showing there was no
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reasonable basis for the state court to deny relief.” Richter, 131 S. Ct. at 784.
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A summary denial is presumed to be a denial on the merits of the petitioner’s claims.
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Stancle v. Clay, 692 F.3d 948, 957 & n. 3 (9th Cir. 2012). While the federal court cannot analyze
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just what the state court did when it issued a summary denial, the federal court must review the
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state court record to determine whether there was any “reasonable basis for the state court to deny
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relief.” Richter, 131 S. Ct. at 784. This court “must determine what arguments or theories ...
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could have supported, the state court's decision; and then it must ask whether it is possible
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fairminded jurists could disagree that those arguments or theories are inconsistent with the
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holding in a prior decision of [the Supreme] Court.” Id. at 786. The petitioner bears “the burden
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to demonstrate that ‘there was no reasonable basis for the state court to deny relief.’” Walker v.
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Martel, 709 F.3d 925, 939 (9th Cir. 2013) (quoting Richter, 131 S. Ct. at 784).
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When it is clear, however, that a state court has not reached the merits of a petitioner’s
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claim, the deferential standard set forth in 28 U.S.C. § 2254(d) does not apply and a federal
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habeas court must review the claim de novo. Stanley, 633 F.3d at 860; Reynoso v. Giurbino, 462
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F.3d 1099, 1109 (9th Cir. 2006); Nulph v. Cook, 333 F.3d 1052, 1056 (9th Cir. 2003).
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III. Petitioner’s Claims
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A. Sufficiency of the Evidence
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In his first ground for relief, petitioner claims that the evidence introduced at his trial was
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insufficient to support his convictions for murder and attempted murder. ECF No. 1 at 3-22.5 He
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argues that the prosecutor failed to prove the charges against him beyond a reasonable doubt
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because there was significant evidence demonstrating that Munoz, and not he, was the shooter.
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Id. Petitioner notes that the only evidence against him was the testimony of Ben Callaway and
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Carlos Munoz, who petitioner characterizes as a “police informant.” Id. at 4-5, 25. Petitioner
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argues that Munoz’s statements to police implicating him were untruthful and that the police and
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prosecutor knew this when Munoz “falsely implicated Petitioner as being the shooter.” Id. at 6.
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Page number citations such as this one are to the page numbers reflected on the court’s
CM/ECF system and not to page numbers assigned by the parties.
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Petitioner argues that the trial testimony of Efren Chavira established that Munoz was the
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shooter. Id. He notes that Efren Chavira informed the police and testified at trial that the “man
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with the gun,” or the shooter, exited a Mercedes Benz at the scene. Id. at 6, 8, 27, 31. He points
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out that Munoz testified he arrived at the crime scene with Ben Callaway in a Mercedes Benz. Id.
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at 5-6, 28. In addition, Munoz testified that after exiting the Mercedes he “squared off” with a
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man who was wearing red shorts. Id. at 5-6, 29. Efran Chavira testified he was wearing red
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basketball shorts at the scene. Id. at 7, 30. Thus, petitioner argues that the following facts are
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“undisputed”:
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1. Carlos Munoz arrived at the crime scene in a Mercedes Benz.
2. Efren Chavria [sic] was squared off with a person who exited the
Mercedes Benz.
3. Carlos Munoz was squared off with someone wearing red shorts.
4. The only person wearing red shorts during the incident was
Efren Chavria [sic].
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Id. at 9. Given these “undisputed facts,” petitioner argues that “the detectives knew or should
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have known that Efren Chavira had positively identified (and correctly identified) Carlos Munoz
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as being the shooter in the case.” Id. at 10. Petitioner also argues that “it was the prosecution’s
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theory that there was only one (1) shooter, so if Mr. Munoz was responsible for shooting Mr.
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Chavira he would also be responsible for shooting and killing Mr. Chavira’s brother, Diego
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Chavira.” Id. at 9. He claims that the police were aware that their “informant,” Munoz, was
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responsible for the shooting, but that they “simply ignored the evidence” and “freely disregarded
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Mr. Chavira’s positive identification.” Id. at 9, 10.
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At set forth above, Efren Chavira told police prior to petitioner’s trial that the shooter
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exited a Mercedes Benz. In spite of this, petitioner was charged with the shootings, even though
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he arrived at the scene in a different car. Petitioner’s trial counsel cross-examined the police
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detective about why he did not pursue this seeming contradiction, when he knew that the only two
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occupants of the Mercedes Benz were Munoz and Callaway. Id. at 11. Specifically, the
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following testimony occurred:
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Q: (by Mr. Goss, petitioner’s trial counsel): You were present
during those statements made by Efren Chavira; is that correct?
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A. (by the interrogating police officer): I was.
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Q. And you knew at that point that the only two occupants of the
Mercedes Benz were Carlos Munoz and Ben Callaway, true?
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A. I was. But when me and detective –
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Q. No, no. The question requires a “yes” or “no” answer. You
knew at that point that the only two occupants of the Mercedes
Benz were Carlos Munoz and Ben Callaway, right?
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A. I was.
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Q. Following the statement provided by Efren Chavira, did you
follow up by reinterviewing either Ben Callaway or Carlos Munoz?
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A. We did not.
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MR. GOSS: No further questions.
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THE COURT: Thank you, officer.
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MS. DOBBERT (the prosecutor): No, wait, wait, wait.
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Q: (by the prosecutor): Why didn’t you follow up?
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A. Me and Detective Gardiman had discussed it. And during our
discussion, we realized that based on descriptions, he had mixed up
the cars.
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MR. GOSS:
witness.
Objection. This is conjecture on the part of this
THE COURT: That’s why they didn’t follow up. This isn’t for the
truth of anything. He’s just answering why he didn’t follow up.
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MR. GOSS: He’s making a statement that that’s what the facts are.
He can give an opinion, but he can’t say the facts. And that’s my –
THE COURT: He’s just giving his reason why they didn’t follow
up. He can give his reason.
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MR. GOSS: Okay. As opinion, but not as fact.
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THE WITNESS: We had had a discussion and believed that he had
mixed up the position of the cars, based on other witness’
statements in direction [sic] that they left. The descriptions he gave
to the people that exited the cars were consistent with those of the
defendant coming out of – he had flipped flopped them. That’s
what he had done. But the people come [sic] from the right sides of
the streets. He’s describing the defendant and another subject
coming from the west side of the street, Carlos Munoz and Ben
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Callaway coming from the east side of the streets, but he just
flipped flopped the cars. So that’s why we didn’t go back and
reinterview anyone.
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Reporter’s Transcript on Appeal (RT) at 766-68. Petitioner argues that the officer’s testimony
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that Chavira had simply “mixed up the cars” is an “excuse” that “makes absolutely no sense” and
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is not consistent with other evidence in the case. ECF No. 1 at 11. He points out that Chavira
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was only ten feet away from the shooter at the time he was shot and, presumably, would not have
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been mistaken as to the sequence of events at the crime scene. Id. at 11, 37.
Petitioner also contends that the police coerced Ben Callaway to testify that petitioner was
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the shooter. He states that Callaway initially “refused to lend support to Mr. Munoz’s version of
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events,” but then changed his story because of police harassment. Id. at 12. As described by the
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California Court of Appeal, Munoz testified at trial that petitioner arrived at his house after the
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shooting and admitted that he had shot someone. Callaway told detectives about this meeting in
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his second police interview. However, Callaway testified at petitioner’s trial that after he let
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Carrillo and petitioner in the house he immediately went back upstairs without talking to them.
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When impeached with his second police interview, Callaway claimed he told the detectives only
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what he had learned from Munoz and Detective Silva. Callaway also testified at trial that he told
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one of the interrogating police officers “whatever he wants to hear” because this officer was
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threatening to make Callaway “his own personal project” and was telling people that Callaway
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was “an accessory to murder.” Id. at 13, 47; RT at 681. In addition, he testified as follows:
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Q. And it’s your belief that if you don’t tell him what he wants to
hear, he’s going to have you arrested; isn’t that true?
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A. Well, yeah. That’s pretty much the idea that Detective Silva
had given me . . .
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RT at 680.6
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The California Court of Appeal noted that there was no police officer by the name of
Detective Silva working in the San Joaquin Sheriff’s Department at the time of the events in
question. Olivarez, 2012 WL 243196, at *2. However, petitioner provides evidence that the
Stockton Police Department may have been assisting the Sheriff’s Department in this case and
that there is a Detective Silva working for the Stockton Police Department. ECF No. 1 at 52.
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Petitioner argues that even if Callaway’s testimony was not the product of police
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harassment and coercion, “this in no way provides an adequate explanation as to why Efren
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Chavira ‘positively identifies’ the shooter exiting the Mercedes . . . with a gun in his hand.” ECF
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No. 1 at 15. Petitioner contends that the police simply ignored evidence that conflicted with the
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story told by Munoz because they placed unwarranted trust in Munoz, their “informant.” Id. at
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16. He argues that the police “took the unsupported word of the informant who was also
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identified as being the shooter.” Id. at 17.
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Petitioner also claims that Munoz admitted to being the shooter when interviewed by a
detective. Quoting from the transcript of the interview, petitioner argues that Munoz made a
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“Freudian slip” by saying “I was already firing.” ECF No. 1 at 17. The transcript of the
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interview shows the following colloquy:
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Q: When you got to the car, where is Ruben [Carrillo] and Cochino [nickname for
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petitioner, Olivarez7]?
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A: I don’t know. I didn’t see. I didn’t pay attention. I just ran, sir.
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Q: You ran?
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A: Yeah.
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Q: When you ran this way –
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A: I know for a fact I seen Cochino with the gun.
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Q: At what point did you see Cochino with the gun?
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A: When I was running.
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Q: Okay. You are running to the driver’s side of your car?
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A: The reasons I seen him is ‘cause when I started running, he came – ‘cause
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these guys started running.
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Q: They started running?
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Clerk’s Transcript on Appeal (CT) at 533.
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A: They started first. ‘Cause I guess they must have seen the gun before he
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started firing and then when they started running, Cochino came this way and I
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was already firing.
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CT at 540-541.
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Petitioner notes that Munoz was cross-examined about that statement and specifically
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asked why he used the term “firing.” ECF No. 1 at 17. Munoz testified that he misspoke and
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actually meant to say that he was already “running” and not “firing.”8 Reporter’s Transcript on
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Appeal (RT) at 526-27. Petitioner argues that “the more likely truthful version of events was that
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Mr. Munoz admitted to the shooting.” ECF No. 1 at 18.
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Petitioner points to other perceived discrepancies in the trial testimony in an attempt to
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provide support for his argument that the evidence showed Munoz, and not he, was the shooter.
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For instance, Munoz testified that petitioner told him he was the shooter. Petitioner notes that
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Efren Chavira testified the shooter had his face covered. Petitioner asks, “Why would petitioner
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go through the trouble of hiding his identity and then go out of his way to drive to Mr. Munoz’s
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house to tell Mr. Munoz that he (petitioner) was the shooter?” Id. at 18-19. Petitioner argues,
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“simply put, none of what Mr. Munoz claims to have happened makes any sense whatsoever.”
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Id. at 19-20.
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In essence, petitioner contends that the testimony of Mr. Munoz and Mr. Callaway was
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not credible, and therefore did not constitute sufficient evidence to support his convictions. He
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argues, “when this Honorable Court reviews Petitioner’s case under the standard of review set
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forth by the High Court in Jackson v. Virginia, supra, it will be more than clear that Petitioner,
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based on the accuracy of the identification provided by Efren Chavira, simply could not have
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been the shooter.” Id. at 22.
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8
Munoz was cross-examined at length about his use of the word “firing” rather than
running (RT at 526-28) yet the jury ultimately appears to have credited his testimony that it was
petitioner who fired the shots.
12
1
2
1. Applicable Legal Standards
The Due Process Clause “protects the accused against conviction except upon proof
3
beyond a reasonable doubt of every fact necessary to constitute the crime with which he is
4
charged.” In re Winship, 397 U.S. 358, 364 (1970). There is sufficient evidence to support a
5
conviction if, “after viewing the evidence in the light most favorable to the prosecution, any
6
rational trier of fact could have found the essential elements of the crime beyond a reasonable
7
doubt.” Jackson v. Virginia, 443 U.S. 307, 319 (1979). “[T]he dispositive question under
8
Jackson is ‘whether the record evidence could reasonably support a finding of guilt beyond a
9
reasonable doubt.’” Chein v. Shumsky, 373 F.3d 978, 982 (9th Cir. 2004) (quoting Jackson, 443
10
U.S. at 318). Put another way, “a reviewing court may set aside the jury’s verdict on the ground
11
of insufficient evidence only if no rational trier of fact could have agreed with the jury.” Cavazos
12
v. Smith, ___ U.S. ___, 132 S.Ct. 2, *4 (2011). Sufficiency of the evidence claims in federal
13
habeas proceedings must be measured with reference to substantive elements of the criminal
14
offense as defined by state law. Jackson, 443 U.S. at 324 n.16.
15
In conducting federal habeas review of a claim of insufficient evidence, “all evidence
16
must be considered in the light most favorable to the prosecution.” Ngo v. Giurbino, 651 F.3d
17
1112, 1115 (9th Cir. 2011). “Jackson leaves juries broad discretion in deciding what inferences
18
to draw from the evidence presented at trial,” and it requires only that they draw “‘reasonable
19
inferences from basic facts to ultimate facts.’” Coleman v. Johnson,___ U.S. ___, 132 S.Ct.
20
2060, 2064 (2012) (per curiam ) (citation omitted). “‘Circumstantial evidence and inferences
21
drawn from it may be sufficient to sustain a conviction.’” Walters v. Maass, 45 F.3d 1355, 1358
22
(9th Cir.1995) (citation omitted).
23
“A petitioner for a federal writ of habeas corpus faces a heavy burden when challenging
24
the sufficiency of the evidence used to obtain a state conviction on federal due process grounds.”
25
Juan H. v. Allen, 408 F.3d 1262, 1274 (9th Cir. 2005). Because this case is governed by the
26
AEDPA, this court owes a “double dose of deference” to the decision of the state court. Long v.
27
Johnson, 736 F.3d 891, 896 (9th Cir. 2013) (quoting Boyer v. Belleque, 659 F.3d 957, 960 (9th
28
Cir. 2011), cert. denied ___ U.S. ___, 132 S.Ct. 2723 (2012)). See also Johnson, 132 S.Ct. at
13
1
2062 (“Jackson claims face a high bar in federal habeas proceedings because they are subject to
2
two layers of judicial deference.”).
3
4
2. Analysis
After reviewing the record in the light most favorable to the jury’s verdict, this court
5
concludes that there was sufficient evidence introduced at petitioner’s trial to support his
6
convictions for murder and attempted murder, even though there was conflicting evidence
7
regarding the location and description of the shooter. If the record supports conflicting
8
inferences, the reviewing court “must presume – even if it does not affirmatively appear in the
9
record – that the trier of fact resolved any such conflicts in favor of the prosecution, and must
10
defer to that resolution.” McDaniel v. Brown, 558 U.S. 120, 133 (2010) (per curiam) (quoting
11
Jackson, 443 U.S. at 326). In evaluating the evidence presented at trial, this court may not weigh
12
conflicting evidence or consider witness credibility. Wingfield v. Massie, 122 F.3d 1329, 1332
13
(10th Cir. 1997). Instead, as noted above, the court must view the evidence in the “light most
14
favorable to the prosecution,” Jackson, 443 U.S. at 319.
15
Juries have broad discretion in deciding what inferences to draw from the evidence
16
presented at trial. This court may not “impinge[ ] on the jury’s role as factfinder,” or engage in
17
“fine-grained factual parsing.” Johnson, 132 S.Ct. at 2065. As the U.S. Court of Appeals for the
18
Ninth Circuit has explained, “[t]he relevant inquiry is not whether the evidence excludes every
19
hypothesis except guilt, but whether the jury could reasonably arrive at its verdict.” United States
20
v. Mares, 940 F.2d 455, 458 (9th Cir. 1991). Under Jackson, the court need not find that the
21
conclusion of guilt was compelled, only that it rationally could have been reached. Drayden v.
22
White, 232 F.3d 704, 709-10 (9th Cir. 2000).
23
Here, Callaway and Munoz testified that Ruben Carrillo and petitioner came to Munoz’s
24
apartment after the altercation. Munoz testified that petitioner admitted he shot someone. See RT
25
at 450, 454, 632-34. Callaway told detectives during a pre-trial interview that he was present
26
during the conversation where petitioner admitted to being the shooter. Olivarez, 2012 WL
27
243196 at *2, n.3. The tape of Callaway’s police interview where he made this statement was
28
played for the jury. RT at 650-52. The jury was entitled to rely on that evidence to find
14
1
petitioner guilty, even though there was other evidence that cast some doubt on the identity of the
2
shooter and the reliability of Callaway’s trial testimony. In other words, which version of the
3
events was true was up to the jury alone to decide. Johnson, 132 S.Ct. at 2064. The jury
4
evaluated the conflicting evidence in this case and the witnesses’ credibility and reached a guilty
5
verdict. Based on the facts introduced at petitioner’s trial, a reasonable juror could have
6
concluded beyond a reasonable doubt that petitioner was the person who carried and shot the
7
firearm.
8
9
Although petitioner claims that Munoz’s testimony was “false” and that Munoz was an
“informant,” there is no evidence of that in the record. There is also no substantial evidence that
10
the police knew any of the trial testimony was false or that Callaway’s trial testimony was
11
coerced. In short, the decision of the California Supreme Court that a rational trier of fact could
12
have found beyond a reasonable doubt that petitioner was guilty of murder and attempted murder
13
is not an unreasonable application of In re Winship and Jackson to the facts of this case.
14
Accordingly, petitioner is not entitled to federal habeas relief on this claim.9
15
B. Ineffective Assistance of Appellate Counsel
16
In his second ground for relief, petitioner claims that his appellate counsel rendered
17
ineffective assistance in failing to raise a claim that that the evidence was insufficient to support
18
petitioner’s convictions for murder and attempted murder. ECF No. 1 at 22-23. In the traverse,
19
petitioner adds an additional argument that his appellate counsel rendered ineffective assistance in
20
raising a claim on appeal that assumed petitioner was the shooter. ECF No. 21 at 24-26. With
21
regard to this second argument, petitioner contends, “arguing against the client in and of itself,
22
especially here, where the evidence of guilt is less than compelling most certainly suggests that
23
counsel’s performance was unprofessional within the first prong of the Strickland test.” Id. at 25.
24
9
25
26
27
28
In the traverse, petitioner argues that the decision of the California Supreme Court on
his claim of insufficient evidence is not entitled to deference under AEDPA because the Supreme
Court failed to hold an evidentiary hearing on the identity of the shooter. ECF No. 21 at 6.
Assuming arguendo that the California Supreme Court erred in failing to hold an evidentiary
hearing, petitioner is not entitled to relief on this claim. He has failed to show that the evidence
introduced at his trial was insufficient to support his convictions, even under a de novo standard
of review.
15
1
1. Legal Principles: Ineffective Assistance of Counsel
2
The applicable legal standards for a claim of ineffective assistance of counsel are set forth
3
in Strickland v. Washington, 466 U.S. 668 (1984). To succeed on a Strickland claim, a defendant
4
must show that (1) his counsel’s performance was deficient and that (2) the “deficient
5
performance prejudiced the defense.” Id. at 687. Counsel is constitutionally deficient if his or
6
her representation “fell below an objective standard of reasonableness” such that it was outside
7
“the range of competence demanded of attorneys in criminal cases.” Id. at 687–88 (internal
8
quotation marks omitted). “Counsel’s errors must be ‘so serious as to deprive the defendant of a
9
fair trial, a trial whose result is reliable.’” Richter, 131 S.Ct. at 787-88 (quoting Strickland, 466
10
U.S. at 687).
11
A reviewing court is required to make every effort “to eliminate the distorting effects of
12
hindsight, to reconstruct the circumstances of counsel’s challenged conduct, and to evaluate the
13
conduct from counsel’s perspective at the time.” Strickland, 466 U.S. at 669; see Richter, 131
14
S.Ct. at 789. Reviewing courts must also “indulge a strong presumption that counsel’s conduct
15
falls within the wide range of reasonable professional assistance.” Strickland, 466 U.S. at 689.
16
This presumption of reasonableness means that the court must “give the attorneys the benefit of
17
the doubt,” and must also “affirmatively entertain the range of possible reasons [defense] counsel
18
may have had for proceeding as they did.” Cullen v. Pinholster, ___ U.S. ___, 131 S.Ct. 1388,
19
1407 (2011) (internal quotation marks and alterations omitted).
20
Prejudice is found where “there is a reasonable probability that, but for counsel’s
21
unprofessional errors, the result of the proceeding would have been different.” Strickland, 466
22
U.S. at 694. A reasonable probability is “a probability sufficient to undermine confidence in the
23
outcome.” Id. “The likelihood of a different result must be substantial, not just conceivable.”
24
Richter, 131 S.Ct. at 792. A reviewing court “need not first determine whether counsel’s
25
performance was deficient before examining the prejudice suffered by the defendant as a result of
26
the alleged deficiencies . . . . If it is easier to dispose of an ineffectiveness claim on the ground of
27
lack of sufficient prejudice . . . that course should be followed.” Strickland, 466 U.S. at 697.
28
/////
16
1
The Strickland standards apply to appellate counsel as well as trial counsel. Smith v.
2
Murray, 477 U.S. 527, 535-36 (1986); Miller v. Keeney, 882 F.2d 1428, 1433 (9th Cir. 1989). In
3
order to establish prejudice in this context, a petitioner must demonstrate that, but for counsel’s
4
errors, he probably would have prevailed on appeal. Id. at 1434 n.9.
5
6
2. Analysis
For the reasons set forth above, petitioner’s claim that the evidence was insufficient to
7
support his convictions for murder and attempted murder lacks merit. Accordingly, his appellate
8
counsel did not render ineffective assistance in failing to raise the claim on appeal. An attorney’s
9
failure to raise a meritless claim on appeal does not constitute ineffective assistance of counsel.
10
Jones v. Smith, 231 F.3d 1227, 1239 n.8 (9th Cir. 2000) (citing Boag v. Raines, 769 F.2d 1341,
11
1344 (9th Cir. 1985)). See also Rhoades v. Henry, 638 F.3d 1027, 1036 (9th Cir. 2011) (counsel
12
did not render ineffective assistance in failing to investigate or raise an argument on appeal where
13
“neither would have gone anywhere”); Matylinsky v. Budge, 577 F.3d 1083, 1094 (9th Cir. 2009)
14
(counsel’s failure to object to testimony on hearsay grounds not ineffective where objection
15
would have been properly overruled); Rupe v. Wood, 93 F.3d 1434, 1445 (9th Cir. 1996) (“the
16
failure to take a futile action can never be deficient performance”).
17
One of the claims raised by petitioner’s appellate counsel was that the trial court violated
18
state law in failing to instruct the jury that the testimony of Munoz and Carillo should be viewed
19
with caution because they were petitioner’s accomplices as a matter of law. Resp’t’s Lodg. Doc.
20
10 at 11. Contrary to petitioner’s argument, this claim would not have caused the appellate court
21
to conclude that petitioner was the shooter in this case. Appellate counsel’s decision to raise this
22
claim does not constitute deficient performance and did not result in prejudice. In addition, as an
23
indigent defendant movant did not have a constitutional right to compel his appointed appellate
24
counsel to press nonfrivolous points when that counsel, as a matter of professional judgment,
25
decided not to present those issues. See Jones v. Barnes, 463 U.S. 745, 751–54 (1983) (an
26
experienced attorney knows the importance of “winnowing out weaker arguments on appeal and
27
focusing on one central issue if possible, or at most on a few key issues”). “A brief that raises
28
every colorable issue runs the risk of burying good arguments.” Id. at 753.
17
1
Movant’s appellate counsel raised several claims on appeal with more merit than a claim
2
attacking the sufficiency of the evidence to support his convictions. This court presumes that
3
appellate counsel exercised his professional judgment to raise the issues on appeal that he
4
considered to be the most meritorious. Accordingly, under either a deferential or de novo
5
standard of review, petitioner is not entitled to habeas relief on his claim of ineffective assistance
6
of appellate counsel.
7
IV. Conclusion
8
9
For the foregoing reasons, IT IS HEREBY RECOMMENDED that petitioner’s
application for a writ of habeas corpus be denied.
10
These findings and recommendations are submitted to the United States District Judge
11
assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within fourteen days
12
after being served with these findings and recommendations, any party may file written
13
objections with the court and serve a copy on all parties. Such a document should be captioned
14
“Objections to Magistrate Judge’s Findings and Recommendations.” Any reply to the objections
15
shall be served and filed within fourteen days after service of the objections. Failure to file
16
objections within the specified time may waive the right to appeal the District Court’s order.
17
Turner v. Duncan, 158 F.3d 449, 455 (9th Cir. 1998); Martinez v. Ylst, 951 F.2d 1153 (9th Cir.
18
1991). In his objections petitioner may address whether a certificate of appealability should issue
19
in the event he files an appeal of the judgment in this case. See Rule 11, Rules Governing Section
20
2254 Cases (the district court must issue or deny a certificate of appealability when it enters a
21
final order adverse to the applicant).
22
DATED: June 24, 2015.
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