Bell v. Horel

Filing 28

ORDER DENYING PETITION FOR WRIT OF HABEAS CORPUS; DENYING CERTIFICATE OF APPEALABILITY. Signed by Judge Claudia Wilken on 5/3/2011. (ndr, COURT STAFF) (Filed on 5/3/2011)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE NORTHERN DISTRICT OF CALIFORNIA
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v.
BOB HOREL, Warden,

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United States District Court
For the Northern District of California

ORDER DENYING PETITION FOR WRIT
OF HABEAS CORPUS; DENYING
CERTIFICATE OF APPEALABILITY

Petitioner,

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No. C 08-01493 CW (PR)

TOMMY BELL,

Respondent.

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Petitioner Tommy Bell is a prisoner of the State of

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California, incarcerated at Corcoran State Prison.

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2009, Petitioner filed a pro se amended petition1 for a writ of

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habeas corpus pursuant to 28 U.S.C. § 2254 challenging the validity

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of his 2005 state convictions.

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Petitioner filed a traverse.

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filed by the parties, the Court DENIES the petition for writ of

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habeas corpus.

Respondent filed an answer and

Having considered all of the papers

BACKGROUND

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On June 10,

I.

Procedural History

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In 2005, an Alameda County Superior Court jury convicted

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Petitioner of attempted murder, five counts of assault with a

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On March 18, 2008, Petitioner filed an original petition for
writ of habeas corpus. On January 28, 2009, the Court stayed the
petition in order to allow Petitioner to exhaust his claims. On June
10, 2009, Petitioner informed the Court that the California Supreme
Court denied his state habeas petition on May 13, 2009. On June 30,
2009, the Court lifted the stay and directed Respondent to file a
response showing cause why Petitioner’s amended petition should not
be granted.

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semiautomatic firearm, three courts of attempted second degree

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robbery, one count of second degree robbery, and one count of

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possession of a firearm by a felon.

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& A at 1.)

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Petitioner to a total sentence of fifty-eight years to life.

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Pet. at 2.)

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(Am. Pet. at 2; Resp. Memo. P

On October 7, 2005, the trial court sentenced
(Am.

Petitioner timely appealed to the California Court of Appeal.

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On February 8, 2007, the California Court of Appeal filed a written

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opinion rejecting Petitioner’s claims.

(Resp. Ex. 4.)

Petitioner

United States District Court
For the Northern District of California

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proceeded to the California Supreme Court, which denied his

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petition in a one sentence order on April 18, 2007. (Resp. Ex. 6.)

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Petitioner filed unsuccessful habeas petitions in the state courts

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and the California Supreme Court ultimately denied his last

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petition on May 13, 2009.

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instant amended petition on June 10, 2009.

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II.

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(Resp. Ex. 10.)

Petitioner filed the

Statement of Facts
The facts as set out in the California Court of Appeal’s

decision on direct appeal are as follows.
On October 13, 2004, Diana Valencia and her brother Gilberto
Valencia accompanied their housemates Marco Trejovilla and
Luis Medrano, as well as their neighbor Mike Eskridge, in
Trejovilla's car to a Quik Stop market located near their San
Leandro apartment complex. After Trejovilla parked his car
outside of the Quik Stop, Eskridge walked inside the store and
purchased beer. At the same time, [Petitioner] was a
passenger in a car parked at the Quik Stop, along with Joshua
Cole, Yonas Melles, “Mead,” and “Sid,” the driver of this
second automobile. From the parking lot, [Petitioner] and his
companions saw Eskridge pull what they believed to be a large
quantity of money out of his pocket while he was purchasing
the beer. [Petitioner] then told his companions that he was
going to rob Eskridge and directed Sid to follow Trejovilla's
car as it left the Quik Stop parking lot.
Upon returning to the apartment complex, Trejovilla parked his
car in his parking space under a carport. Gilberto got out of

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the car and walked inside his apartment. Trejovilla also got
out of the car, leaving Diana, Medrano, and Eskridge in the
backseat. While this occurred, Sid stopped his automobile
across 164th Avenue from the apartment complex, let
[Petitioner] and Melles out, and then drove away with Mead and
Cole.

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United States District Court
For the Northern District of California

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Trejovilla got out of his car and was met by his friend and
neighbor Arturo Cruz, who requested a ride to the BART
station. While the two were conversing, [Petitioner] and
Melles approached them, and [Petitioner] asked Cruz if he
wanted to buy some marijuana. Cruz replied, “no,” and
appellant and Melles pulled out guns, with [Petitioner]
pointing his at Cruz's face. Cruz attempted to knock the gun
from [Petitioner]'s hand, but was unsuccessful and only
momentarily redirected [Petitioner]'s aim. [Petitioner] then
re-aimed the gun at Cruz and shot him in the chest.
Deputy Hemenway, on motorcycle patrol and driving westbound on
164th Avenue at the time, heard the gunshot as he passed by a
wall behind the carport. He made a u-turn and rode his
motorcycle back toward the carport.

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After shooting Cruz, [Petitioner] pointed his gun at
Trejovilla, and then at Diana, Medrano, and Eskridge, who
remained in the backseat of Trejovilla's car. [Petitioner]
threatened to shoot them if they did not give him something.
Diana took Medrano's cell phone and handed it to Trejovilla,
who then handed it to [Petitioner]. [Petitioner] and Melles
then left.

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Meanwhile, Cruz had made his way around the wall behind the
carport and saw Hemenway driving by on his motorcycle. Cruz
yelled for Hemenway, who was unable to understand what Cruz
said, but saw Cruz's bloodied T-shirt and stopped his
motorcycle. Cruz took a couple steps and then fell to the
ground.
Immediately after Cruz fell to the ground, Hemenway saw
[Petitioner] running from the carport in his direction from a
distance of approximately 40 feet. Hemenway saw a handgun in
[Petitioner's] right hand. [Petitioner] had the gun pointed
downward toward the ground. Hemenway yelled at [Petitioner],
directing him to stop. [Petitioner] did not stop, but instead
slowed to a walk, turned his head to look in Hemenway's
direction, and began to bend his right elbow, raising the gun
up. As the gun reached just above the level of his waistline,
he began turning his torso and gun toward Hemenway. Hemenway
believed [Petitioner] was going to try to shoot him, so he
drew his service weapon and fired three shots at [Petitioner].
[Petitioner] then fell to the ground, having been shot in the
abdomen. Hemenway later found [Petitioner]'s loaded gun on
the ground near where [Petitioner] fell.

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(Resp. Ex. 4 at 1-3.)

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LEGAL STANDARD

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A federal court may entertain a habeas petition from a state
prisoner "only on the ground that he is in custody in violation of

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the Constitution or laws or treaties of the United States."

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28 U.S.C. § 2254(a).

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Penalty Act of 1996 (AEDPA), a district court may not grant habeas

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relief unless the state court's adjudication of the claim:

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“(1) resulted in a decision that was contrary to, or involved an

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United States District Court
For the Northern District of California

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unreasonable application of, clearly established Federal law, as

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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

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determination of the facts in light of the evidence presented in

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the State court proceeding."

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Taylor, 529 U.S. 362, 412 (2000).

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questions of law and to mixed questions of law and fact, id. at

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407-09, and the second prong applies to decisions based on factual

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determinations, Miller-El v. Cockrell, 537 U.S. 322, 340 (2003).

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A state court decision is "contrary to" Supreme Court

Under the Antiterrorism and Effective Death

28 U.S.C. § 2254(d); Williams v.
The first prong applies both to

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authority, that is, falls under the first clause of § 2254(d)(1),

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only if "the state court arrives at a conclusion opposite to that

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reached by [the Supreme] Court on a question of law or if the state

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court decides a case differently than [the Supreme] Court has on a

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set of materially indistinguishable facts."

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412-13.

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Supreme Court authority, under the second clause of § 2254(d)(1),

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if it correctly identifies the governing legal principle from the

Williams, 529 U.S. at

A state court decision is an "unreasonable application of"

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Supreme Court's decisions but "unreasonably applies that principle

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to the facts of the prisoner's case."

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court on habeas review may not issue the writ "simply because that

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court concludes in its independent judgment that the relevant

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state-court decision applied clearly established federal law

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erroneously or incorrectly."

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must be "objectively unreasonable" to support granting the writ.

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Id. at 409.

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Id. at 413.

Id. at 411.

The federal

Rather, the application

"Factual determinations by state courts are presumed correct

United States District Court
For the Northern District of California

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absent clear and convincing evidence to the contrary."

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537 U.S. at 340.

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evidence to overcome the presumption of correctness under

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§ 2254(e)(1); conclusory assertions will not do.

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only Supreme Court law is binding on the states, Ninth Circuit

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precedent remains relevant persuasive authority in determining

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whether a state court decision is objectively unreasonable.

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v. Murphy, 331 F.3d 1062, 1069 (9th Cir. 2003).

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Miller-El,

A petitioner must present clear and convincing

Id.

Although

Clark

If constitutional error is found, habeas relief is warranted

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only if the error had a "'substantial and injurious effect or

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influence in determining the jury's verdict.'"

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532 U.S. 782, 795 (2001) (quoting Brecht v. Abrahamson, 507 U.S.

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619, 638 (1993)).

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Penry v. Johnson,

When there is no reasoned opinion from the highest state court

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to consider the petitioner's claims, the court looks to the last

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reasoned opinion of the highest court to analyze whether the state

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judgment was erroneous under the standard of § 2254(d).

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Nunnemaker, 501 U.S. 797, 801-06 (1991).

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Ylst v.

However, the standard of

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review under AEDPA is somewhat different where the state court

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gives no reasoned explanation of its decision on a petitioner's

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federal claim and there is no reasoned lower court decision on the

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claim.

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deciding whether the state court's decision was objectively

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reasonable.

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(9th Cir. 2006); Himes v. Thompson, 336 F.3d 848, 853 (9th Cir.

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2003); Greene v. Lambert, 288 F.3d 1081, 1088 (9th Cir. 2002).

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When confronted with such a decision, a federal court should

In such a case, a review of the record is the only means of

See Plascencia v. Alameida, 467 F.3d 1190, 1197-98

United States District Court
For the Northern District of California

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conduct “an independent review of the record” to determine whether

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the state court’s decision was an objectively unreasonable

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application of clearly established federal law.

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F.3d at 1198; accord Lambert v. Blodgett, 393 F.3d 943, 970 n.16

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(9th Cir. 2004).

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state court decision under AEDPA:

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merits concerning a question of law is, and should be, afforded

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respect.

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there is nothing to which to defer."

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Plascencia, 467

The federal court need not otherwise defer to the
"A state court's decision on the

If there is no such decision on the merits, however,
Greene, 288 F.3d at 1089.

DISCUSSION
Petitioner raises three claims in his federal habeas petition.

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First, he alleges that there was insufficient evidence to support

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his conviction for assault on Deputy Hemenway with a semiautomatic

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weapon. (Am. Pet. at 13-17, 27-30.)

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that counsel was ineffective for failing to request a jury

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instruction on voluntary manslaughter.

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Finally, Petitioner claims that the admission of evidence of prior

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bad acts violated his right to due process.

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Second, Petitioner asserts

(Am. Pet. at 18-21; 31-35.)

(Am. Pet. at 22-25.)

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I.

Insufficient evidence

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Petitioner claims that he never intended to harm Hemenway and

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never pointed the gun at Hemenway.

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argues that, because an assault immediately precedes a battery, and

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no battery occurred, he could not have been found guilty of

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committing assault with a semiautomatic weapon.

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support of his argument, Petitioner states that “[t]he fact that

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[he] had an opportunity to fire his gun at the deputy and [he]

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refrained” demonstrates that he never intended to harm Hemenway.

United States District Court
For the Northern District of California

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(Am. Pet. at 15.)

Petitioner

(Id. at 29.)

In

(Id.)

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A state prisoner who alleges that the evidence in support of

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his state conviction cannot be fairly characterized as sufficient

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to have led a rational trier of fact to find guilt beyond a

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reasonable doubt states a constitutional claim, which, if proven,

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entitles him to federal habeas relief.

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443 U.S. 307, 321, 324 (1979).

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collaterally a state court conviction does not determine whether it

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is satisfied that the evidence established guilt beyond a

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reasonable doubt.

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1992).

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the evidence in the light most favorable to the prosecution, any

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rational trier of fact could have found the essential elements of

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the crime beyond a reasonable doubt.'"

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443 U.S. at 319).

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found proof of guilt beyond a reasonable doubt, may the writ be

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granted.

See Jackson v. Virginia,

A federal court reviewing

Payne v. Borg, 982 F.2d 335, 338 (9th Cir.

The federal court "determines only whether, 'after viewing

See id. (quoting Jackson,

Only if no rational trier of fact could have

See Jackson, 443 U.S. at 324.

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California Penal Code section 245(b), the statute of

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conviction, states, “Any person who commits an assault upon the

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person of another with a semiautomatic firearm shall be punished by

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imprisonment in the state prison for three, six, or nine years.”

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An assault is defined as “an unlawful attempt, coupled with a

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present ability, to commit a violent injury on the person of

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another.”

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Cal. Penal Code § 240.

The California Court of Appeal rejected Petitioner’s claim.
The appellate court analyzed several California cases in which the

United States District Court
For the Northern District of California

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state courts affirmed assault convictions where the evidence

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demonstrated that the defendants did not point their weapons at the

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victims, reasoning that it was not necessary for a defendant to

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attempt to use the weapon.

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sufficient if it shows that a defendant intends to use the weapon

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“coupled with a present ability of using actual violence.”

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5, citing People v. McMakin, 8 Cal. 547, 548-549 (1857).)

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addition, “the drawing of a gun is evidence of an intention to use

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it.”

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(Resp. Ex. 4 at 5-6.)

The evidence is

(Id. at
In

McMakin, 8 Cal. at 549.
Here, the evidence showed that, as Petitioner was running from

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the scene while carrying a loaded semiautomatic weapon, Hemenway

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shouted for him to stop.

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Petitioner slowed down to a walking pace and began to turn his head

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toward Hemenway while raising the gun by bending his right arm.

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(Id.)

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waist, Petitioner began to turn his torso toward Hemenway, causing

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Hemenway to believe that Petitioner was going to shoot him.

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Viewing the evidence in the light most favorable to Respondent, it

(Id. at 3.)

Rather than stop, however,

When Petitioner had raised the gun above the level of his

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(Id.)

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can be inferred that Petitioner intended to use his weapon and had

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the present ability to do so.

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Petitioner’s claim was not contrary to or an unreasonable

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application of Supreme Court precedent.

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II.

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The Court of Appeal’s rejection of

Ineffective Assistance of Counsel
Petitioner claims that counsel rendered ineffective assistance

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because she failed to request a jury instruction on attempted

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voluntary manslaughter.

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maintains that the shooting of Cruz was accidental and, therefore,

(Am. Pet. at 19-20, 31-32.)

Petitioner

United States District Court
For the Northern District of California

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had the jury had the option of convicting him of attempted

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voluntary manslaughter, it would have done so.

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(Id. at 19-20.)

A claim of ineffective assistance of counsel is cognizable as

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a claim of denial of the Sixth Amendment right to counsel, which

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guarantees not only assistance, but effective assistance of

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counsel.

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benchmark for judging any claim of ineffectiveness must be whether

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counsel's conduct so undermined the proper functioning of the

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adversarial process that the trial cannot be relied upon as having

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produced a just result.

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Amendment ineffectiveness of counsel claim, a petitioner must

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establish two things.

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performance was deficient, i.e., that it fell below an "objective

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standard of reasonableness" under prevailing professional norms.

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Strickland, 466 U.S. at 687-88.

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defense counsel could have done, but rather whether the choices

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made by defense counsel were reasonable.

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151 F.3d 1170, 1173 (9th Cir. 1998).

Strickland v. Washington, 466 U.S. 668, 686 (1984).

Id.

The

In order to prevail on a Sixth

First, he must establish that counsel's

The relevant inquiry is not what

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See Babbitt v. Calderon,

Judicial scrutiny of

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counsel's performance must be highly deferential, and a court must

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indulge a strong presumption that counsel's conduct falls within

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the wide range of reasonable professional assistance.

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Strickland, 466 U.S. at 689.

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that he was prejudiced by counsel's deficient performance, i.e.,

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that "there is a reasonable probability that, but for counsel's

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unprofessional errors, the result of the proceeding would have been

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different."

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sufficient to undermine confidence in the outcome.

United States District Court
For the Northern District of California

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Id. at 694.

See

Second, a petitioner must establish

A reasonable probability is a probability
Id.

The California Supreme Court denied this claim without
comment.

(Resp. Ex. 10.)

In California, the court must instruct the jury regarding a

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lesser included crime if substantial evidence would support a

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guilty verdict of the lesser included crime rather than the charged

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crime.

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Voluntary manslaughter, a lesser included offense of murder, is

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“the unlawful killing of a human being without malice aforethought

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upon a sudden quarrel or heat of passion.”

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4th 1158, 1215 (2004) (internal quotation marks omitted).

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Voluntary manslaughter is also available when a defendant acts in

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an actual but unreasonable belief that he must defend himself from

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imminent danger of death or great bodily injury.

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35 Cal. 4th 987, 994 (2005).

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See People v. Cunningham, 25 Cal. 4th 926, 1008 (2001).

People v. Cole, 33 Cal.

The evidence does not support either theory.

People v. Randle,

Petitioner

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merely asserts that he had no intention of shooting Cruz.

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Petitioner claims that Cruz’s act of trying to knock the gun out of

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Petitioner’s hand caused the gun to fire accidentally.

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(Am. Pet.

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at 20.)

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manslaughter instruction.

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Petitioner were engaged in a sudden quarrel, or that Petitioner

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believed he had to defend himself against imminent danger.

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This theory does not support an attempted voluntary
There was no evidence that Cruz and

In short, counsel was not deficient for failing to request
such an instruction.

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because the evidence did not support an instruction on attempted

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voluntary manslaughter, it simply cannot be said that there was a

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reasonable probability that but for counsel’s failure to request

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United States District Court
For the Northern District of California

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such an instruction, the result of the proceeding would have been

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different.

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III. Evidence of prior bad acts

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See Strickland, 466 U.S. at 694.

Moreover,

See id.

Petitioner claims that the trial court erred when it admitted

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evidence of two prior robberies because the evidence was highly

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prejudicial.

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bad acts would only have been admissible if he had testified and,

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because he did not, the admission of the prior bad acts violated

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his right to remain silent.

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(Am. Pet. at 33.)

Petitioner states that his prior

(Id. at 34-35.)

Prior to trial, the trial court heard argument concerning two

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prior robberies that the prosecution intended to introduce at trial

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under California Evidence Code § 1101 to prove that Petitioner

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intended to rob Cruz.

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prosecution could indeed use evidence of those prior robberies in

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its case-in-chief for the purpose of showing intent.

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(RT 20-22.)

The trial court ruled that the

(RT 28.)

At trial, two witnesses testified that Petitioner had

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previously robbed them.

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robbed him at gunpoint on January 17, 2003, by demanding his

Vernon Clark testified that Petitioner

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wallet.

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robbed him at gunpoint and took his wallet and cell phone.

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846-847.)

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(RT 840).

Austin Cattermole testified that Petitioner
(RT

The California Supreme Court denied this claim without
comment.

(Resp. Ex. 10.)

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The United States Supreme Court "has not yet made a clear

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ruling that admission of irrelevant or overtly prejudicial evidence

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constitutes a due process violation sufficient to warrant issuance

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of the writ."

Holley v. Yarborough, 568 F.3d 1091, 1101 (9th Cir.

United States District Court
For the Northern District of California

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2009).

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habeas court cannot find the state court's ruling was an

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"unreasonable application" of "clearly established federal law"

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under 28 U.S.C. § 2254(d)(1).

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U.S. 70, 77 (2006)).

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be granted on Petitioner's claim that the admission of overly-

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prejudicial evidence of his prior acts violated his right to due

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process.

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trial court's admission of irrelevant and prejudicial evidence

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violated due process under Ninth Circuit precedent, such admission

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was not contrary to, or an unreasonable application of, "clearly

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established Federal law" under section 2254(d)(1), and therefore

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not grounds for granting federal habeas relief).

Absent such a ruling from the Supreme Court, a federal

Id. (citing Carey v. Musladin, 549

Under Holley, therefore, habeas relief cannot

See Holley, 568 F.3d at 1101 n.2 (finding that, although

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Moreover, even if admission of the uncharged conduct were

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erroneous, in order to obtain federal habeas relief on this claim,

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Petitioner would have to show that the error was one of

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constitutional dimension and that it was not harmless under Brecht

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v. Abrahamson, 507 U.S. 619 (1993).

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He would have to show that the

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error had "'a substantial and injurious effect' on the verdict.'"

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Dillard v. Roe, 244 F.3d 758, 767 n.7 (9th Cir. 2001) (quoting

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Brecht, 507 U.S. at 623).

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Petitioner previously robbed two separate individuals at gunpoint.

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This evidence was probative of Petitioner’s intent to rob Cruz when

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he pulled his gun.

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instruction directing the jury that it could only consider the

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evidence of the prior robberies as it tended to prove that

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Petitioner had the intent to rob Cruz.

Here, the evidence showed that

In addition, the trial court gave a limiting

See, e.g., Houston v. Roe,

United States District Court
For the Northern District of California

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177 F.3d 901, 910 n.6 (9th Cir. 1999) (admission of similar prior

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bad acts to show motive and intent, coupled with limiting

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instructions, was appropriate).

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Accordingly, the California Court of Appeal’s decision denying

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relief on this claim was not contrary to or an unreasonable

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application of clearly established federal law.

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§ 2254(d).

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See 28 U.S.C.

CONCLUSION
For the foregoing reasons, the petition for a writ of habeas
corpus is denied.

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No certificate of appealability is warranted in this case.

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See Rule 11(a) of the Rules Governing § 2254 Cases, 28 U.S.C. foll.

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§ 2254 (requiring district court to rule on certificate of

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appealability in same order that denies petition).

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failed to make a substantial showing that any of his claims

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amounted to a denial of his constitutional rights or demonstrate

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that a reasonable jurist would find this Court's denial of his

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Petitioner has

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claims debatable or wrong.

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484 (2000).

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See Slack v. McDaniel, 529 U.S. 473,

The clerk shall enter judgment and close the file.

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pending motions are terminated.

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All

costs.

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Each party shall bear his own

IT IS SO ORDERED.

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Dated:

5/3/2011
CLAUDIA WILKEN
UNITED STATES DISTRICT JUDGE

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United States District Court
For the Northern District of California

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UNITED STATES DISTRICT COURT
FOR THE
NORTHERN DISTRICT OF CALIFORNIA

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TOMMY BELL,

Case Number: CV08-01493 CW

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Plaintiff,

CERTIFICATE OF SERVICE

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v.
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BOB HOREL et al,
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Defendant.
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United States District Court
For the Northern District of California

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/

I, the undersigned, hereby certify that I am an employee in the Office of the Clerk, U.S. District
Court, Northern District of California.
That on May 3, 2011, I SERVED a true and correct copy(ies) of the attached, by placing said
copy(ies) in a postage paid envelope addressed to the person(s) hereinafter listed, by depositing
said envelope in the U.S. Mail, or by placing said copy(ies) into an inter-office delivery
receptacle located in the Clerk's office.

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Tommy Bell V-09957
3A05-141
Corcoran State Prison
P.O. Box 3461
Corcoran, CA 93212

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Dated: May 3, 2011

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Richard W. Wieking, Clerk
By: Nikki Riley, Deputy Clerk

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