Rego v. Sherman

Filing 23

ORDER DENYING PETITION FOR WRIT OF HABEAS CORPUS AND MOTION FOR EVIDENTIARY HEARING. Signed by Judge Vince Chhabria on 9/24/2015. (knm, COURT STAFF) (Filed on 9/24/2015)

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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TARVEY REGO,

Case No. 14-cv-00187-VC

Petitioner,
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v.
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STU SHERMAN,
Respondent.

Re: Dkt. Nos. 1, 21

United States District Court
Northern District of California

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ORDER DENYING PETITION FOR
WRIT OF HABEAS CORPUS AND
MOTION FOR EVIDENTIARY
HEARING

Rego brings this habeas petition to challenge his first-degree murder conviction. Because

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none of Rego's claims warrants habeas relief, the petition is denied. Rego's motion for an

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evidentiary hearing is also denied.

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Ineffective Assistance of Counsel

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To grant habeas relief based on ineffective assistance, this Court must be convinced that

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any reasonable judge would be compelled to conclude that the performance of Rego's trial counsel

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was deficient and that Rego was prejudiced as a result. See Harrington v. Richter, 562 U.S. 86,

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102-03 (2011).

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Rego contends he received ineffective assistance of counsel in a number of ways. First, he

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asserts his lawyer failed to present evidence suggesting that he wasn't aiding the Salas brothers in

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a robbery attempt when he killed Camacho. For example, Rego contends his lawyer should have

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presented evidence suggesting that the two men who started the robbery attempt with Ponce were

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not the Salas brothers. But as discussed in the opinion of the California Court of Appeal on direct

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review, there was also a good deal of evidence that the robbers were indeed the Salas brothers.

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People v. Rego, No. A130047, 2012 WL 2785223, at *1, 10 (Cal. Ct. App. July 10, 2012)

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(unpublished). In light of that, the state courts could reasonably have concluded that the decision

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by Rego's lawyer to focus on imperfect self-defense, rather than focusing on the less credible

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argument that someone other than the Salas brothers initiated the robbery attempt, was a tactical

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decision within the wide range of reasonableness. See Strickland v. Washington, 466 U.S. 668,

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689 (1984) ("Judicial scrutiny of counsel's performance must be highly deferential.").
Rego also cites evidence his lawyer could have presented to show that the robbery attempt

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ended before Rego appeared on the scene and killed Camacho. However, such evidence was in

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fact presented, similar in kind to the evidence Rego now contends was omitted. And Rego's

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lawyer relied on the evidence that was presented when arguing to the jury that Rego was not guilty

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of felony murder. But as the California Court of Appeal explained on direct appeal, there was

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sufficient evidence to support the jury's conclusion that the robbery attempt was not over (and that
Rego therefore killed Camacho in furtherance of it). See Rego, 2012 WL 2785223, at *12. This

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United States District Court
Northern District of California

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Court cannot conclude that any reasonable judge would be compelled to find a Sixth Amendment

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violation in trial counsel's failure to present additional evidence on this point. See Harrington, 562

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U.S. at 102-03.1
Rego also contends his trial counsel was ineffective for failing to request an instruction on

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"heat of passion" and "provocation," but the contrary conclusion by the California Court of Appeal

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on direct review was not unreasonable, for the reasons stated by that court. See Rego, 2012 WL

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2785223, at *9. Relatedly, it was not unreasonable for the state courts to reject Rego's argument

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that his lawyer was ineffective for failing to object to the prosecutor's statements about the law

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during closing arguments, given that the jury was correctly instructed. See United States v.

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Necoechea, 986 F.2d 1273, 1281 (9th Cir. 1993).

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Prosecutorial Misconduct

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Rego contends the prosecutor engaged in misconduct by presenting misleading evidence

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and argument that the attempted robbery was committed by the Salas brothers and that the party

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guests were connected with a rival gang. But as discussed in the Court of Appeal's opinion on

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direct review, there was sufficient evidence that the Salas brothers initiated the robbery attempt.

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The same is true of defense counsel's failure to present video evidence of Ponce's failure to
identify the Salas brothers in a lineup, because the jury was already aware that Ponce did not
identify them as his accomplices in the attempted robbery.
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See Rego, 2012 WL 2785223, at *1, 10. And as the Court of Appeal noted with respect to the

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gang enhancement, what mattered is not whether the party guests actually were members of a rival

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gang, but whether Rego perceived Camacho to be a member of a rival gang. Id. at *3 n.6. There

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was ample evidence of the latter. Therefore, the state courts could reasonably have concluded that

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Rego has not shown that testimony heard by the jury was actually false, or that the prosecutor

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knew or should have known it was false, or that the allegedly false testimony was material. See

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Napue v. Illinois, 360 U.S. 264, 269 (1959); Hein v. Sullivan, 601 F.3d 897, 908 (9th Cir. 2010).

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Denial of Motion to Bifurcate and Allowing in Gang Evidence

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Rego contends the trial court's denial of his motion to bifurcate the trial for purposes of
considering the gang enhancement under Cal. Penal Code § 186.22, which resulted in the

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United States District Court
Northern District of California

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admission of prejudicial gang evidence, violated his due process right to a fair trial. But the Court

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of Appeal's conclusion on direct review that the trial court did not err is not unreasonable. See

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Rego, 2012 WL 2785223, at *4-5. Rego certainly has not shown that any reasonable judge would

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be compelled to conclude that the admission of the gang evidence "was arbitrary or so prejudicial

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that it rendered the trial fundamentally unfair." Walters v. Maass, 45 F.3d 1355, 1357 (9th Cir.

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1995).

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Failure to Instruct Jury on Heat of Passion and Provocation

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For the reasons stated by the California Court of Appeal on direct review, the trial court's

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failure to instruct the jury sua sponte on "heat of passion" and "provocation" likely did not

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constitute reversible error. See Rego, 2012 WL 2785223, at *6-9. Certainly Rego has not shown

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that any reasonable judge would be compelled to conclude otherwise. Furthermore, that an

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instruction may have been incorrect under state law typically provides no basis for habeas relief.

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See Estelle v. McGuire, 502 U.S. 62, 71-72 (1991).

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Insufficiency of the Evidence

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Claims based on insufficiency of the evidence "face a high bar in federal habeas

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proceedings." Coleman v. Johnson, 132 S. Ct. 2060, 2062 (2012) (per curiam). Rego asserts there

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was insufficient evidence to support a conviction for felony murder, arguing that the attempted

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robbery was complete before he killed Camacho. But as the California Court of Appeal explained
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on direct review, there was evidence to the contrary. Rego, 2012 WL 2785223, at *12. Rego also

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contends there was insufficient evidence to support a conclusion that his stabbing of Camacho was

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premeditated, but again the California Court of Appeal explained to the contrary on direct review.

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Id. In particular, the Court of Appeal discussed the evidence that Rego went into the kitchen to get

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a knife and went downstairs even though his girlfriend urged him not to. Id. It was not

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objectively unreasonable for the Court of Appeal to conclude that the evidence was sufficient to

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support a conclusion that Rego was guilty of felony murder and premeditated murder.

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Court of Appeal's Opinion

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Rego argues he was denied his right to a fair appeal by the California Court of Appeal's
misreading of the record, distortion of facts, and assumptions. This claim, however, repeats many

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United States District Court
Northern District of California

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of the same arguments rejected above. The state court decision rejecting this claim was not

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objectively unreasonable.

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Motion for Evidentiary Hearing

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Rego requests an evidentiary hearing. But he fails to indicate what evidence he would

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present at such a hearing and how his allegations, if proven, would entitled him to relief. See

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Williams v. Calderon, 52 F.3d 1465, 1484 (9th Cir. 1995). His motion is therefore denied.

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The Clerk shall enter judgment in favor of the respondent.

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IT IS SO ORDERED.

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Dated: September 24, 2015
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VINCE CHHABRIA
United States District Judge

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