Bell v. Horel

Filing 28


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1 2 3 IN THE UNITED STATES DISTRICT COURT 4 FOR THE NORTHERN DISTRICT OF CALIFORNIA 5 6 7 v. BOB HOREL, Warden, 10 United States District Court For the Northern District of California ORDER DENYING PETITION FOR WRIT OF HABEAS CORPUS; DENYING CERTIFICATE OF APPEALABILITY Petitioner, 8 9 No. C 08-01493 CW (PR) TOMMY BELL, Respondent. / 11 Petitioner Tommy Bell is a prisoner of the State of 12 13 California, incarcerated at Corcoran State Prison. 14 2009, Petitioner filed a pro se amended petition1 for a writ of 15 habeas corpus pursuant to 28 U.S.C. § 2254 challenging the validity 16 of his 2005 state convictions. 17 Petitioner filed a traverse. 18 filed by the parties, the Court DENIES the petition for writ of 19 habeas corpus. Respondent filed an answer and Having considered all of the papers BACKGROUND 20 21 On June 10, I. Procedural History 22 In 2005, an Alameda County Superior Court jury convicted 23 Petitioner of attempted murder, five counts of assault with a 24 25 26 27 28 1 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. 1 semiautomatic firearm, three courts of attempted second degree 2 robbery, one count of second degree robbery, and one count of 3 possession of a firearm by a felon. 4 & A at 1.) 5 Petitioner to a total sentence of fifty-eight years to life. 6 Pet. at 2.) 7 (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. 8 On February 8, 2007, the California Court of Appeal filed a written 9 opinion rejecting Petitioner’s claims. (Resp. Ex. 4.) Petitioner United States District Court For the Northern District of California 10 proceeded to the California Supreme Court, which denied his 11 petition in a one sentence order on April 18, 2007. (Resp. Ex. 6.) 12 Petitioner filed unsuccessful habeas petitions in the state courts 13 and the California Supreme Court ultimately denied his last 14 petition on May 13, 2009. 15 instant amended petition on June 10, 2009. 16 II. 17 18 19 20 21 22 23 24 25 26 27 (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 28 2 1 2 3 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. 4 5 6 7 8 9 United States District Court For the Northern District of California 10 11 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. 12 13 14 15 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. 16 17 18 19 20 21 22 23 24 25 26 27 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. 28 3 1 (Resp. Ex. 4 at 1-3.) 2 LEGAL STANDARD 3 A federal court may entertain a habeas petition from a state prisoner "only on the ground that he is in custody in violation of 5 the Constitution or laws or treaties of the United States." 6 28 U.S.C. § 2254(a). 7 Penalty Act of 1996 (AEDPA), a district court may not grant habeas 8 relief unless the state court's adjudication of the claim: 9 “(1) resulted in a decision that was contrary to, or involved an 10 United States District Court For the Northern District of California 4 unreasonable application of, clearly established Federal law, as 11 determined by the Supreme Court of the United States; or 12 (2) resulted in a decision that was based on an unreasonable 13 determination of the facts in light of the evidence presented in 14 the State court proceeding." 15 Taylor, 529 U.S. 362, 412 (2000). 16 questions of law and to mixed questions of law and fact, id. at 17 407-09, and the second prong applies to decisions based on factual 18 determinations, Miller-El v. Cockrell, 537 U.S. 322, 340 (2003). 19 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 20 authority, that is, falls under the first clause of § 2254(d)(1), 21 only if "the state court arrives at a conclusion opposite to that 22 reached by [the Supreme] Court on a question of law or if the state 23 court decides a case differently than [the Supreme] Court has on a 24 set of materially indistinguishable facts." 25 412-13. 26 Supreme Court authority, under the second clause of § 2254(d)(1), 27 if it correctly identifies the governing legal principle from the Williams, 529 U.S. at A state court decision is an "unreasonable application of" 28 4 1 Supreme Court's decisions but "unreasonably applies that principle 2 to the facts of the prisoner's case." 3 court on habeas review may not issue the writ "simply because that 4 court concludes in its independent judgment that the relevant 5 state-court decision applied clearly established federal law 6 erroneously or incorrectly." 7 must be "objectively unreasonable" to support granting the writ. 8 Id. at 409. 9 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 10 absent clear and convincing evidence to the contrary." 11 537 U.S. at 340. 12 evidence to overcome the presumption of correctness under 13 § 2254(e)(1); conclusory assertions will not do. 14 only Supreme Court law is binding on the states, Ninth Circuit 15 precedent remains relevant persuasive authority in determining 16 whether a state court decision is objectively unreasonable. 17 v. Murphy, 331 F.3d 1062, 1069 (9th Cir. 2003). 18 Miller-El, A petitioner must present clear and convincing Id. Although Clark If constitutional error is found, habeas relief is warranted 19 only if the error had a "'substantial and injurious effect or 20 influence in determining the jury's verdict.'" 21 532 U.S. 782, 795 (2001) (quoting Brecht v. Abrahamson, 507 U.S. 22 619, 638 (1993)). 23 Penry v. Johnson, When there is no reasoned opinion from the highest state court 24 to consider the petitioner's claims, the court looks to the last 25 reasoned opinion of the highest court to analyze whether the state 26 judgment was erroneous under the standard of § 2254(d). 27 Nunnemaker, 501 U.S. 797, 801-06 (1991). 28 5 Ylst v. However, the standard of 1 review under AEDPA is somewhat different where the state court 2 gives no reasoned explanation of its decision on a petitioner's 3 federal claim and there is no reasoned lower court decision on the 4 claim. 5 deciding whether the state court's decision was objectively 6 reasonable. 7 (9th Cir. 2006); Himes v. Thompson, 336 F.3d 848, 853 (9th Cir. 8 2003); Greene v. Lambert, 288 F.3d 1081, 1088 (9th Cir. 2002). 9 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 10 conduct “an independent review of the record” to determine whether 11 the state court’s decision was an objectively unreasonable 12 application of clearly established federal law. 13 F.3d at 1198; accord Lambert v. Blodgett, 393 F.3d 943, 970 n.16 14 (9th Cir. 2004). 15 state court decision under AEDPA: 16 merits concerning a question of law is, and should be, afforded 17 respect. 18 there is nothing to which to defer." 19 20 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. 21 First, he alleges that there was insufficient evidence to support 22 his conviction for assault on Deputy Hemenway with a semiautomatic 23 weapon. (Am. Pet. at 13-17, 27-30.) 24 that counsel was ineffective for failing to request a jury 25 instruction on voluntary manslaughter. 26 Finally, Petitioner claims that the admission of evidence of prior 27 bad acts violated his right to due process. 28 6 Second, Petitioner asserts (Am. Pet. at 18-21; 31-35.) (Am. Pet. at 22-25.) 1 I. Insufficient evidence 2 Petitioner claims that he never intended to harm Hemenway and 3 never pointed the gun at Hemenway. 4 argues that, because an assault immediately precedes a battery, and 5 no battery occurred, he could not have been found guilty of 6 committing assault with a semiautomatic weapon. 7 support of his argument, Petitioner states that “[t]he fact that 8 [he] had an opportunity to fire his gun at the deputy and [he] 9 refrained” demonstrates that he never intended to harm Hemenway. United States District Court For the Northern District of California 10 (Am. Pet. at 15.) Petitioner (Id. at 29.) In (Id.) 11 A state prisoner who alleges that the evidence in support of 12 his state conviction cannot be fairly characterized as sufficient 13 to have led a rational trier of fact to find guilt beyond a 14 reasonable doubt states a constitutional claim, which, if proven, 15 entitles him to federal habeas relief. 16 443 U.S. 307, 321, 324 (1979). 17 collaterally a state court conviction does not determine whether it 18 is satisfied that the evidence established guilt beyond a 19 reasonable doubt. 20 1992). 21 the evidence in the light most favorable to the prosecution, any 22 rational trier of fact could have found the essential elements of 23 the crime beyond a reasonable doubt.'" 24 443 U.S. at 319). 25 found proof of guilt beyond a reasonable doubt, may the writ be 26 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. 27 28 7 1 California Penal Code section 245(b), the statute of 2 conviction, states, “Any person who commits an assault upon the 3 person of another with a semiautomatic firearm shall be punished by 4 imprisonment in the state prison for three, six, or nine years.” 5 An assault is defined as “an unlawful attempt, coupled with a 6 present ability, to commit a violent injury on the person of 7 another.” 8 9 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 10 state courts affirmed assault convictions where the evidence 11 demonstrated that the defendants did not point their weapons at the 12 victims, reasoning that it was not necessary for a defendant to 13 attempt to use the weapon. 14 sufficient if it shows that a defendant intends to use the weapon 15 “coupled with a present ability of using actual violence.” 16 5, citing People v. McMakin, 8 Cal. 547, 548-549 (1857).) 17 addition, “the drawing of a gun is evidence of an intention to use 18 it.” 19 (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 20 the scene while carrying a loaded semiautomatic weapon, Hemenway 21 shouted for him to stop. 22 Petitioner slowed down to a walking pace and began to turn his head 23 toward Hemenway while raising the gun by bending his right arm. 24 (Id.) 25 waist, Petitioner began to turn his torso toward Hemenway, causing 26 Hemenway to believe that Petitioner was going to shoot him. 27 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 28 8 (Id.) 1 can be inferred that Petitioner intended to use his weapon and had 2 the present ability to do so. 3 Petitioner’s claim was not contrary to or an unreasonable 4 application of Supreme Court precedent. 5 II. 6 The Court of Appeal’s rejection of Ineffective Assistance of Counsel Petitioner claims that counsel rendered ineffective assistance 7 because she failed to request a jury instruction on attempted 8 voluntary manslaughter. 9 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 10 had the jury had the option of convicting him of attempted 11 voluntary manslaughter, it would have done so. 12 (Id. at 19-20.) A claim of ineffective assistance of counsel is cognizable as 13 a claim of denial of the Sixth Amendment right to counsel, which 14 guarantees not only assistance, but effective assistance of 15 counsel. 16 benchmark for judging any claim of ineffectiveness must be whether 17 counsel's conduct so undermined the proper functioning of the 18 adversarial process that the trial cannot be relied upon as having 19 produced a just result. 20 Amendment ineffectiveness of counsel claim, a petitioner must 21 establish two things. 22 performance was deficient, i.e., that it fell below an "objective 23 standard of reasonableness" under prevailing professional norms. 24 Strickland, 466 U.S. at 687-88. 25 defense counsel could have done, but rather whether the choices 26 made by defense counsel were reasonable. 27 151 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 28 9 See Babbitt v. Calderon, Judicial scrutiny of 1 counsel's performance must be highly deferential, and a court must 2 indulge a strong presumption that counsel's conduct falls within 3 the wide range of reasonable professional assistance. 4 Strickland, 466 U.S. at 689. 5 that he was prejudiced by counsel's deficient performance, i.e., 6 that "there is a reasonable probability that, but for counsel's 7 unprofessional errors, the result of the proceeding would have been 8 different." 9 sufficient to undermine confidence in the outcome. United States District Court For the Northern District of California 10 11 12 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 13 lesser included crime if substantial evidence would support a 14 guilty verdict of the lesser included crime rather than the charged 15 crime. 16 Voluntary manslaughter, a lesser included offense of murder, is 17 “the unlawful killing of a human being without malice aforethought 18 upon a sudden quarrel or heat of passion.” 19 4th 1158, 1215 (2004) (internal quotation marks omitted). 20 Voluntary manslaughter is also available when a defendant acts in 21 an actual but unreasonable belief that he must defend himself from 22 imminent danger of death or great bodily injury. 23 35 Cal. 4th 987, 994 (2005). 24 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 25 merely asserts that he had no intention of shooting Cruz. 26 Petitioner claims that Cruz’s act of trying to knock the gun out of 27 Petitioner’s hand caused the gun to fire accidentally. 28 10 (Am. Pet. 1 at 20.) 2 manslaughter instruction. 3 Petitioner were engaged in a sudden quarrel, or that Petitioner 4 believed he had to defend himself against imminent danger. 5 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. 7 because the evidence did not support an instruction on attempted 8 voluntary manslaughter, it simply cannot be said that there was a 9 reasonable probability that but for counsel’s failure to request 10 United States District Court For the Northern District of California 6 such an instruction, the result of the proceeding would have been 11 different. 12 III. Evidence of prior bad acts 13 See Strickland, 466 U.S. at 694. Moreover, See id. Petitioner claims that the trial court erred when it admitted 14 evidence of two prior robberies because the evidence was highly 15 prejudicial. 16 bad acts would only have been admissible if he had testified and, 17 because he did not, the admission of the prior bad acts violated 18 his right to remain silent. 19 (Am. Pet. at 33.) Petitioner states that his prior (Id. at 34-35.) Prior to trial, the trial court heard argument concerning two 20 prior robberies that the prosecution intended to introduce at trial 21 under California Evidence Code § 1101 to prove that Petitioner 22 intended to rob Cruz. 23 prosecution could indeed use evidence of those prior robberies in 24 its case-in-chief for the purpose of showing intent. 25 (RT 20-22.) The trial court ruled that the (RT 28.) At trial, two witnesses testified that Petitioner had 26 previously robbed them. 27 robbed him at gunpoint on January 17, 2003, by demanding his Vernon Clark testified that Petitioner 28 11 1 wallet. 2 robbed him at gunpoint and took his wallet and cell phone. 3 846-847.) 4 5 (RT 840). Austin Cattermole testified that Petitioner (RT The California Supreme Court denied this claim without comment. (Resp. Ex. 10.) 6 The United States Supreme Court "has not yet made a clear 7 ruling that admission of irrelevant or overtly prejudicial evidence 8 constitutes a due process violation sufficient to warrant issuance 9 of the writ." Holley v. Yarborough, 568 F.3d 1091, 1101 (9th Cir. United States District Court For the Northern District of California 10 2009). 11 habeas court cannot find the state court's ruling was an 12 "unreasonable application" of "clearly established federal law" 13 under 28 U.S.C. § 2254(d)(1). 14 U.S. 70, 77 (2006)). 15 be granted on Petitioner's claim that the admission of overly- 16 prejudicial evidence of his prior acts violated his right to due 17 process. 18 trial court's admission of irrelevant and prejudicial evidence 19 violated due process under Ninth Circuit precedent, such admission 20 was not contrary to, or an unreasonable application of, "clearly 21 established Federal law" under section 2254(d)(1), and therefore 22 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 23 Moreover, even if admission of the uncharged conduct were 24 erroneous, in order to obtain federal habeas relief on this claim, 25 Petitioner would have to show that the error was one of 26 constitutional dimension and that it was not harmless under Brecht 27 v. Abrahamson, 507 U.S. 619 (1993). 28 12 He would have to show that the 1 error had "'a substantial and injurious effect' on the verdict.'" 2 Dillard v. Roe, 244 F.3d 758, 767 n.7 (9th Cir. 2001) (quoting 3 Brecht, 507 U.S. at 623). 4 Petitioner previously robbed two separate individuals at gunpoint. 5 This evidence was probative of Petitioner’s intent to rob Cruz when 6 he pulled his gun. 7 instruction directing the jury that it could only consider the 8 evidence of the prior robberies as it tended to prove that 9 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 10 177 F.3d 901, 910 n.6 (9th Cir. 1999) (admission of similar prior 11 bad acts to show motive and intent, coupled with limiting 12 instructions, was appropriate). 13 Accordingly, the California Court of Appeal’s decision denying 14 relief on this claim was not contrary to or an unreasonable 15 application of clearly established federal law. 16 § 2254(d). 17 18 19 See 28 U.S.C. CONCLUSION For the foregoing reasons, the petition for a writ of habeas corpus is denied. 20 No certificate of appealability is warranted in this case. 21 See Rule 11(a) of the Rules Governing § 2254 Cases, 28 U.S.C. foll. 22 § 2254 (requiring district court to rule on certificate of 23 appealability in same order that denies petition). 24 failed to make a substantial showing that any of his claims 25 amounted to a denial of his constitutional rights or demonstrate 26 that a reasonable jurist would find this Court's denial of his 27 28 13 Petitioner has 1 claims debatable or wrong. 2 484 (2000). 3 See Slack v. McDaniel, 529 U.S. 473, The clerk shall enter judgment and close the file. 4 pending motions are terminated. 5 All costs. 6 Each party shall bear his own IT IS SO ORDERED. 7 8 Dated: 5/3/2011 CLAUDIA WILKEN UNITED STATES DISTRICT JUDGE 9 United States District Court For the Northern District of California 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 14 UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF CALIFORNIA 1 2 3 TOMMY BELL, Case Number: CV08-01493 CW 4 Plaintiff, CERTIFICATE OF SERVICE 5 v. 6 BOB HOREL et al, 7 Defendant. 8 9 United States District Court For the Northern District of California 10 11 12 / 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. 13 14 17 Tommy Bell V-09957 3A05-141 Corcoran State Prison P.O. Box 3461 Corcoran, CA 93212 18 Dated: May 3, 2011 15 16 19 Richard W. Wieking, Clerk By: Nikki Riley, Deputy Clerk 20 21 22 23 24 25 26 27 28 15

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