Barba-Rejon v. Adams

Filing 10

DENYING PETITION FOR WRIT OF HABEAS CORPUS; DENYING CERTIFICATE OF APPEALABILITY. Signed by Judge Claudia Wilken on 9/12/2011. (ndr, COURT STAFF) (Filed on 9/12/2011)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE NORTHERN DISTRICT OF CALIFORNIA

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MISAEL E. BARBA-REJON,

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No. C 09-5052 CW (PR)

Petitioner,

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

v.
DERRAL G. ADAMS, Warden,

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Respondent.
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United States District Court
For the Northern District of California

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INTRODUCTION
Petitioner Misael E. Barba-Rejon, a state prisoner currently

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incarcerated at La Palma Correctional Center in Arizona, seeks a

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writ of habeas corpus under 28 U.S.C. § 2254, challenging his 2006

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conviction in the Contra Costa County Superior Court.

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On February 17, 2010, the Court issued an Order to Show

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Cause why the writ should not be granted.

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Respondent filed an Answer.

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Petitioner did not file a Traverse.

Having considered all of the papers filed by the parties,
the Court DENIES the petition.

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On June 16, 2010,

BACKGROUND
The state appellate court summarized the facts of the case as
follows:
At approximately 8:30 p.m. on April 15, 2005,
Michael Kelly was driving on Highway 4 traveling
eastbound on the Willow Pass grade between Concord and
Pittsburg. Kelly was in the fast lane when he noticed
a vehicle coming up behind him going at about 75 to 80
miles per hour, flashing its high beams. Kelly changed
lanes and he saw that the vehicle speeding in the left
lane was a red Dodge Durango. The Durango proceeded to
swerve in and out of traffic and to tailgate for
approximately a quarter mile. The traffic then slowed
as the lanes merged from four lanes to two lanes just
before the Loveridge Road exit.

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Anthony Bastian was driving on Highway 4 towards
Oakley when a red Durango passed him going
approximately 80-90 miles per hour just before the
overpass for Oakley Road. The Durango took the Oakley
exit continuing on Highway 4 and turned right at a red
light without stopping. When Bastian reached the
stoplight at Neroly Road and Highway 4, he heard the
sound of a collision up ahead. He saw the Durango
upside down and observed another car severed in half.

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United States District Court
For the Northern District of California

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Maria Betancur was leaving a Quinceañera rehearsal
party at the Red Man Pocahontas Hall in Oakley at
approximately 8:45 p.m. She saw Blanca Nieves, Victor
Gonzalez, Jr., William Narez, and Gerardo Lepe leave
the hall and get into a Honda Accord. The Honda was
parked adjacent to the curb in front of the hall. Lepe
drove the Honda away from the curb and started to move
forward. Betancur approached her car and looked back
at Lepe's car and noticed that there were headlights in
the distance indicating a car was approaching toward
Brentwood. She saw Lepe look over his left shoulder.
He drove forward a slight distance before he started to
turn toward the left lanes. Betancur looked back a
second time and noticed that a car approaching the
Honda was too close. At this point, the Honda was
approximately halfway between the No. 1 lane and the
turning lane. The Honda appeared to be approaching the
turning lane to make a U-turn. The Durango hit the
Honda's side between the middle of its two doors
splitting it in half.
Deputy Sheriff Robert Roberts responded to the
scene. He observed that the Durango was upside down on
its hood in the No. 1 lane. Roberts heard screams and
went to the Honda where he found two people inside who
had no pulse. He called for assistance. Roberts found
another man outside the Honda who was lying in a pool
of blood. The Durango then caught fire. Defendant,
who appeared to be dazed, was standing on the right
shoulder of the road.

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After the paramedics arrived, Roberts saw another
victim lying on the side of the road. This female
victim had no pulse.
Deputy Sheriff Jeffrey Gallegos also responded to
the scene. Gallegos spoke with defendant who was very
disoriented and confused. Defendant acknowledged that
he was involved in the accident and said that he was
not injured. Gallegos did not conduct any field
sobriety tests of defendant because he opined that
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United States District Court
For the Northern District of California

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defendant's disorientation was a result of being in the
accident. When Gallegos asked defendant what happened,
defendant said, "'The car pulled out in front of me.'"
Gallegos did not suspect that defendant was under the
influence and assumed any confusion or disorientation
was a result of the severe accident.
Deputy Sheriff Steve Borbely, the traffic
investigations officer for Oakley, responded to the
scene. He testified that the posted speed limit on
Highway 4 is 45 miles per hour. He investigated the
scene for physical evidence. He found no alcohol
containers. There were no skid marks in the area of
the collision. He, however, noticed skid marks in the
gravel area where the Honda had been parked. Borbely
testified that it was unlawful and unsafe to make a Uturn by turning from the curb across the No. 1 and No.
2 lanes of eastbound traffic and into the No. 1
westbound lane. He estimated that from the curb where
the Honda was parked, the Durango's headlights would be
visible from 1,204 feet away but would be obscured for
about 317 feet where there is a dip in the road and
would be again visible from a distance of approximately
887 feet. Borbely acknowledged that the Vehicle Code
states that a minimum safe distance of an unobstructed
view in which to make a U-turn is 200 feet. Based on
his knowledge, training, and investigation of the
accident, he opined that defendant may not have applied
the brakes long enough to have an effect on the
Durango's speed.
Paramedics transferred defendant and Narez, the
survivor from the Honda, to hospitals. Brandy Decker,
who started defendant on a saline solution
intravenously, detected an odor of alcohol from him as
she was loading him in the ambulance. Defendant
answered Decker's questions coherently and seemed
sober. He denied that he was under the influence.

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Deputy Sheriff Ian Jones interviewed defendant in
the emergency room of Sutter Delta Hospital. Defendant
told him about the accident and his injuries. At
approximately 12:50 a.m., defendant's blood was drawn.
Defendant did not appear to be intoxicated.
Narez testified that he could not remember the
accident. He spent two months in the hospital and had
four or five surgeries. The accident left him with
numerous scars on his back, chest, and abdomen, and a
scar on his throat from a tracheotomy. He also lost
part of his lung and continues to have problems with
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United States District Court
For the Northern District of California

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his breathing. In addition, he suffered a brain
aneurysm and broken ribs. He was 15 years old at the
time of the accident.
Stephanie Williams, a forensic toxicologist,
testified that defendant's blood alcohol concentration
was .06 percent. Using an average alcohol elimination
rate of .015 percent per hour, and assuming that
defendant did not drink any alcohol after the accident,
Williams estimated that defendant's blood alcohol level
four hours earlier at 8:50 p.m. was .12 percent.
Williams opined that a person with a .12 blood alcohol
level was under the influence of alcohol for the
purposes of operating a motor vehicle safely. She
further testified that blood alcohol elimination rates
range from .01 to .02 and that even if defendant was at
the lower elimination rate of .01, his blood alcohol
level at the time of the accident would have been .10
and he would be under the influence of alcohol and
unable to operate a motor vehicle safely. Williams
also tested Lepe's blood sample and found no evidence
of alcohol in his blood.
Deputy Sheriff David Heinbaugh was called to the
scene and investigated the accident. In examining the
accident scene, he determined that the Durango had been
in the No. 1 lane while the Honda had travelled across
the lanes perpendicular to the Durango's path. He
concluded that the Durango's front license plate hit
the Honda between its two driver's side doors. At the
point of impact, the Honda's chassis failed, causing
the two side doors to overlap.
Heinbaugh also opined that from the crash site,
there was an unobstructed view of headlights from a
distance of 800 feet. He estimated that it would take
approximately eight seconds for someone travelling at
60 miles per hour, six and a half seconds for someone
driving at 70 miles an hour, and five seconds if the
speed was 80 miles per hour to travel 800 feet. He
also testified that it is possible defendant could have
applied the brakes without leaving any skid marks.
Finally, Heinbaugh opined that the Honda made an unsafe
and illegal U-turn.
Rudy Degger, an accident reconstruction
specialist, relied on Heinbaugh's data and determined
that the Durango's speed was "no less than 70 miles per
hour."

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(Resp't Ex. F at 2-5.)
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A jury convicted Petitioner of three counts of vehicular

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manslaughter while intoxicated without gross negligence, one count

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of driving under the influence causing injury, and one count of

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driving with .08 percent blood alcohol causing injury.

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Thereafter, the trial court found true the great bodily injury

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sentencing enhancement under California Penal Code § 12022.7(a)

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alleged in connection with the latter two counts.

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sentenced Petitioner to seven years in state prison.

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The trial court

Petitioner timely appealed to the California Court of Appeal.

United States District Court
For the Northern District of California

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On May 13, 2008, the appellate court affirmed the judgment of

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conviction, but modified the abstract of judgment to reflect the

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correct California Penal Code section under which Petitioner was

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convicted.1

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On June 12, 2008, the appellate court denied rehearing.

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20, 2008, Petitioner sought review in the California Supreme

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Court.

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review.

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On May 30, 2008, Petitioner moved for a rehearing.
On June

On August 27, 2008, the California Supreme Court denied

Petitioner sought federal habeas relief in this Court on

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October 23, 2009.

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amended petition.

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On November 4, 2009, Petitioner filed an

LEGAL STANDARD

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A federal court may entertain a habeas petition from a

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state prisoner "only on the ground that he is in custody in

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violation of the Constitution or laws or treaties of the United

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The trial court was directed to "prepare a modified abstract
of judgment reflecting that defendant was convicted in counts one
through three of vehicular manslaughter while intoxicated without
gross negligence in violation of section 192, subdivision (c)(3),
and to forward an amended abstract of judgment to the Department of
Corrections and Rehabilitation." (Resp't Ex. F at 9.)
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States."

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Effective Death Penalty Act of 1996 (AEDPA), a district court may

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not grant habeas relief unless the state court's adjudication of

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the claim: "(1) resulted in a decision that was contrary to, or

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involved an unreasonable application of, clearly established

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Federal law, as determined by the Supreme Court of the United

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States; or (2) resulted in a decision that was based on an

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unreasonable determination of the facts in light of the evidence

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presented in the State court proceeding."

28 U.S.C. § 2254(a).

Under the Antiterrorism and

28 U.S.C. § 2254(d);

United States District Court
For the Northern District of California

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

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applies both to questions of law and to mixed questions of law and

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fact, id. at 407-09, and the second prong applies to decisions

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based on factual determinations, Miller-El v. Cockrell, 537 U.S.

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322, 340 (2003).

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The first prong

A state court decision is "contrary to" Supreme Court

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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

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state court decides a case differently than [the Supreme] Court

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has on a set of materially indistinguishable facts."

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529 U.S. at 412-13.

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application of" Supreme Court authority, under the second clause

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of § 2254(d)(1), if it correctly identifies the governing legal

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principle from the Supreme Court's decisions but "unreasonably

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applies that principle to the facts of the prisoner's case."

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at 413.

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"simply because that court concludes in its independent judgment

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that the relevant state-court decision applied clearly established

Williams,

A state court decision is an "unreasonable

Id.

The federal court on habeas review may not issue the writ

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federal law erroneously or incorrectly."

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application must be "objectively unreasonable" to support granting

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the writ.

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Id. at 411.

Rather, the

Id. at 409.

"Factual determinations by state courts are presumed correct
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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United States District Court
For the Northern District of California

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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

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

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last reasoned opinion of the highest court to analyze whether the

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state judgment was erroneous under the standard of section

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2254(d).

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present case, the California Court of Appeal is the highest court

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that addressed Petitioner's claims.

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

In the

DISCUSSION
Petitioner seeks habeas relief under 28 U.S.C. § 2254 based on

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his sole claim that the trial court violated his constitutional

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rights by failing "to sua sponte instruct the jury on Penal Code

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section 12022.7 enhancement for Counts 4 and 5," and thereby

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failing "to define the direct causation element of 'personally

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inflicts' in order to distinguish it from proximate cause theories

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on which the prosecution relied and on which the court

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instructed . . . ."

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argues that the lack of an instruction on the great bodily injury

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enhancement creates the reasonable likelihood that the jury applied

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the wrong standard for causation in deciding whether he "personally

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inflicted" great bodily injury on Narez.

United States District Court
For the Northern District of California

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(Am. Pet. at 6.)

Specifically, Petitioner

(Id.)

The appellate court described the factual background of this
claim as follows:
Defendant was charged in counts four and five with
an enhancement under section 12022.7, subdivision (a)
alleging personal infliction of great bodily injury on
Narez. The court failed to instruct on the enhancement.
Instead, the only reference to the enhancements was
contained on the verdict forms for counts four and five.
On the forms, the jury was instructed to make a finding
on the enhancement if it found defendant to be guilty of
the charged counts.[FN3]

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[FN3.] The following was set forth on the verdict forms
for counts four and five: "INSTRUCTION TO THE JURY: USE
THE FOLLOWING FINDING ONLY IF THE JURY HAS FOUND THE
DEFENDANT TO BE 'GUILTY' OF THE ABOVE OFFENSE [¶] We,
the Jury find the further allegations pursuant to Penal
Code section 12022.7(a), that in the commission and
attempted commission of the above offense, that the
Defendant, MISAEL EDUARDO BARBA-REJON, personally
inflicted great bodily injury upon William Narez, who
was not an accomplice in the above offense to be
_______________."
TRUE/NOT TRUE
(Resp't Ex. F at 5-6 (emphasis in original).)
The appellate court found that the trial court erred by

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failing to provide a jury instruction as to the sentence

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enhancement and that this failure amounted to constitutional

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United States District Court
For the Northern District of California

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error, stating:
It is well settled that the trial court is
required to instruct on the elements of a sentence
enhancement. (Apprendi v. New Jersey (2000) 530 U.S.
466, 490) "Except for sentence enhancement provisions
that are based on a defendant's prior conviction, the
federal Constitution requires a jury to find, beyond a
reasonable doubt, the existence of every element of a
sentence enhancement that increases the penalty for a
crime beyond the 'prescribed statutory maximum'
punishment for that crime. ([Ibid.]) Therefore, a
trial court's failure to instruct the jury on an
element of a sentence enhancement provision (other than
one based on a prior conviction), is federal
constitutional error if the provision 'increases the
penalty for [the underlying] crime beyond the
prescribed statutory maximum.' (Ibid.) Such error is
reversible under Chapman [v. California (1967)] 386
U.S. [18,] 24 . . ., unless it can be shown 'beyond a
reasonable doubt' that the error did not contribute to
the jury's verdict." (People v. Sengpadychith (2001)
26 Cal.4th 316, 326.)
Here, the court failed to give CALCRIM No. 3160 on
the elements of the great bodily injury enhancement.[FN
4]
[FN 4.] CALCRIM No. 3160 states in pertinent part: "If
you find the defendant guilty of the crime[s] charged
in Count[s] ___[,] . . . you must then decide whether[,
for each crime,] the People have proved the additional
allegation that the defendant personally inflicted
great bodily injury on _______ <insert name of injured
person> during the commission . . . of that crime.
[You must decide whether the People have proved this
allegation for each crime and return a separate finding
for each crime.] [¶] . . . [¶] Great bodily injury
means significant or substantial physical injury. It
is an injury that is greater than minor or moderate
harm. [¶] . . . [¶] The People have the burden of
proving each allegation beyond a reasonable doubt. If
the People have not met this burden, you must find that
the allegation has not been proved."
The Attorney General argues that the court's
instruction pertaining to the enhancement on the
verdict form was sufficient. While this instruction
alerted the jury to the requirement that it make a
separate finding on the enhancement as to each count,
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it failed to define great bodily injury, an element of
the enhancement.[FN 5]
[FN 5.] The court had defined great bodily injury in
connection with its instructions on vehicular
manslaughter.
(Id. at 6-7 (alterations and emphasis in original).)

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The appellate court then analyzed (1) whether the trial court

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was required to instruct the jury on its own motion on the meaning

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of "personal infliction," and (2) whether the trial court's error

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of omitting CALCRIM No. 3160 was harmless under the standard in

United States District Court
For the Northern District of California

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Chapman,2 as follows:

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Defendant argues that the instructional error was
prejudicial because the jury was not instructed that
direct causation and not simply proximate causation, was
required to support the great bodily injury findings.
He relies on People v. Rodriguez (1999) 69 Cal.App.4th
341, 349-350. There, the court reversed a second strike
allegation because the jury was erroneously instructed
it could find that the defendant personally inflicted
great bodily injury if it found proximate causation
rather than requiring the jury to find personal
infliction. (Id. at pp. 347-348.) The Rodriguez court
did not give a CALJIC instruction on personal infliction
of great bodily injury but rather gave an instruction
drafted by the prosecutor that erroneously incorporated
a definition of proximate cause. (Rodriguez, at pp.
346-347.) Division Two of the First Appellate District
determined that the instruction was incorrect. "To
'personally inflict' an injury is to directly cause an
injury not just to proximately cause it. The
instruction was wrong because it allowed the jury to
find against Rodriguez if the officer's injury was a
'direct, natural and probable consequence' of
Rodriguez's action, even if Rodriguez did not personally
inflict the injury." (Id. at pp. 347-348.)

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Pursuant to the harmless error review standard under
Chapman, a state appellate court can affirm the judgment of a
criminal conviction challenged on direct appeal only if it appears
"beyond a reasonable doubt" that an incorrect instruction did not
contribute to the verdict. 386 U.S. at 24.
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United States District Court
For the Northern District of California

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Here, however, the jury was not instructed on
proximate causation in connection with the finding on
the enhancement. Rather, the only instruction given to
the jury on the enhancement asked it to make a finding
on whether defendant "personally inflicted great bodily
injury upon William Narez . . . ." Contrary to
defendant's argument, the court was not required to sua
sponte instruct on the meaning of personal infliction.
As the Supreme Court explained in People v. Cole (1982)
31 Cal.3d 568, 572, the Legislature could not have been
clearer in the language of section 12022.7: "[T]he
enhancement applies only to a person who himself
inflicts the injury." Moreover, defendant did not
request any clarification of the term or an instruction
on the definition at trial. "In the absence of a
specific request, a court is not required to instruct
the jury with respect to words or phrases that are
commonly understood and not used in a technical or legal
sense." (People v. Navarette (2003) 30 Cal.4th 458,
503.)

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Relying on People v. Guzman (2000) 77 Cal.App.4th
761, 764, defendant also contends that the jury's
finding on the section 12022.7, subdivision (a)
enhancement cannot be upheld because Lepe directly
caused the injury by making an illegal and unsafe
U-turn. In Guzman, the defendant was convicted of
driving under the influence of alcohol and causing great
bodily injury to another person as a result of an
automobile collision in which he made an unsafe left
turn in front of another vehicle. (Guzman, at pp.
762-763.) Like defendant here, the defendant in Guzman
also argued that he did not personally inflict great
bodily injury on the victim of the accident because the
other driver involved in the accident was the one who
directly performed the act that caused the injury. (Id.
at p. 764.) The court rejected the argument, explaining
that "when 'personally' is included in an enhancement
statute, direct rather than derivative culpability is a
precondition to increasing a sentence" and, hence, the
defendant must directly cause the injury, not simply
proximately cause it. (Ibid.) The court determined
that the fact another vehicle was involved in the
collision did not absolve the defendant of culpability
for directly causing the injury. "More than one person
may be found to have directly participated in inflicting
a single injury . . . . Thus, the fact that the
collision involved two vehicles does not absolve
appellant of direct responsibility for [the victim's]
injuries." (Ibid.)
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United States District Court
For the Northern District of California

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Here, as in Guzman, the jury's findings on the
section 12022.7 enhancements were proper based on
defendant's direct participation in causing the
accident. He not only was driving under the influence
of alcohol but was driving in excess of the speed limit.
Defendant was not absolved of culpability simply because
Lepe's actions may have contributed to the accident. In
any event, in finding defendant guilty of counts four
and five, the jury necessarily rejected the defense that
Lepe caused the accident.
In sum, while the court erred in failing to give
CALCRIM No. 3160, the court's written instruction on the
verdict forms together with the instructions as a whole
adequately informed the jury of the relevant legal
principles of the case. We, therefore, uphold the
jury's findings on the enhancements.[FN6]
[FN6.] That the jury did not find defendant guilty of
vehicular manslaughter with gross negligence is not
determinative of whether the jury would have also
rejected the section 12022.7 enhancements. To make a
true finding on the enhancements, the jury was required
to find only that defendant personally inflicted great
bodily injury on Narez -- that he was a direct cause of
the injury.

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(Resp't Ex. F at 7-9 (alterations in original).)
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Petitioner cannot demonstrate that the state court's decision

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was contrary to, or involved an unreasonable application of,

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clearly established law as determined by the United States Supreme

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Court.

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that the state court's decision relied on an unreasonable

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determination of the facts.

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See 28 U.S.C. § 2254(d).

Nor can Petitioner demonstrate

First, the appellate court rejected Petitioner's claim that
the trial court was required to instruct the jury on its own
motion on the meaning of "personal infliction."

As explained

above, the appellate court relied on the California Supreme
Court's interpretation that the Legislature was clear in the
language of California Penal Code § 12022.7, finding it "applies
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only to a person who himself inflicts the injury.'"

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(citing Cole, 31 Cal. 3d at 572).)

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with the state court's interpretation of the language used in its

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statutes when considering jury instructions.

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Duckworth, 957 F.2d 418, 422 (7th Cir. 1992), overruled on other

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grounds, Eaglen v. Welborn, 57 F.3d 496 (7th Cir. 1995) (en banc).

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Moreover, the appellate court acknowledged that, under California

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law, the trial court has no duty to instruct a jury on a word or

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phrase "commonly understood and not used in a technical or legal

(Id. at 7

This Court will not interfere

See Whipple v.

United States District Court
For the Northern District of California

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sense" unless required by a party.

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Navarette, 30 Cal. 4th at 503).)

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did not request an instruction on the definition of "personal

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infliction" at trial.

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"need not define common terms that are readily understandable to

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the jury."

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Cir. 2003) (quoting United States v. Shryock, 342 F.3d 948, 986

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(9th Cir. 2003)).

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(Resp't Ex. F at 7-8 (citing
Petitioner in the present case

The Ninth Circuit recognizes that courts

United States v. Somsamouth, 352 F.3d 1271, 1275 (9th

Second, the appellate court upheld the jury's findings on the
enhancement upon determining that the trial court's omission of
CALCRIM 3160 was harmless under Chapman.

The United States

Supreme Court has held that, when a state court finds a
constitutional error harmless under Chapman, a federal court may
not grant habeas relief unless the state court "applied harmlesserror review in an 'objectively unreasonable' manner."

Mitchell

v. Esparza, 540 U.S. 12, 18-19 (2003) (citations omitted).

As the

lengthy excerpt, above, makes clear, the appellate court carefully
applied the applicable Chapman standard.

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It did not summarily

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decide that the instructional error was harmless.

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carefully examined the record.

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applicable law (discussed in detail by the appellate court), it

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was not "objectively unreasonable" for the appellate court to

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conclude that the instructional error was harmless.

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United States District Court
For the Northern District of California

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Rather, it

Thus, given the record and the

Id.

In an attempt to show that he is entitled to relief,
Petitioner primarily maintains that the jury likely applied the
"proximate cause instructions" to its assessment of whether he
"personally inflicted" great bodily injury on Narez.
6.)

(Am. Pet. at

The appellate court determined that the trial court did not

instruct the jury to use proximate causation as the basis for
determining whether Petitioner "personally inflicted" injury.
(Resp't Ex. F at 7.)

The appellate court added that the jury's

findings on the enhancement were "proper" based on Petitioner's
direct participation in causing the accident, and on the jury's
rejection of the defense that Lepe caused the accident, by finding
Petitioner guilty of counts four and five.

(Id. at 8.)

The

appellate court also found that the instructions given and the
written instruction on the enhancement verdict form adequately
informed the jury of the relevant legal principles.

(Id. at 8-9.)

Petitioner has not shown that the appellate court's factual
determinations were unreasonable.

Accordingly, Petitioner's

argument must fail under AEDPA, and this claim is DENIED.

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CONCLUSION

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For the foregoing reasons, the Court DENIES the petition for
a writ of habeas corpus.

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Further, a Certificate of Appealability is DENIED.

See Rule

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11(a) of the Rules Governing Section 2254 Cases (effective Dec. 1,

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2009).

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Appealability in this Court but may seek a certificate from the

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Ninth Circuit under Rule 22 of the Federal Rules of Appellate

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Procedure.

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Petitioner may not appeal the denial of a Certificate of

Id.

The Clerk of the Court shall enter judgment and close the
file.

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United States District Court
For the Northern District of California

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IT IS SO ORDERED.
Dated: 9/12/2011

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CLAUDIA WILKEN
United States District Judge

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UNITED STATES DISTRICT COURT

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FOR THE

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NORTHERN DISTRICT OF CALIFORNIA

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MISAEL E. BARBA-REJON,
Case Number: CV09-05052 CW

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Plaintiff,
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CERTIFICATE OF SERVICE
v.

United States District Court
For the Northern District of California

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DERRAL G. ADAMS et al,

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Defendant.
/

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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.

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That on September 12, 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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Misael Eduardo Barba-Rejon F36193

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L.P.C.C. Yuma Delta #106

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5501 N. La Palma Rd.

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Eloy, AZ 85131

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Dated: September 12, 2011
Richard W. Wieking, Clerk
By: Nikki Riley, Deputy Clerk

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