Rodriguez v. Lizarraga
Filing
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ORDER DENYING PETITION FOR WRIT OF HABEAS CORPUS AND GRANTING CERTIFICATE OF APPEALABILITY by Judge Phyllis J. Hamilton denying 26 Motion for Hearing; denying 27 Motion ; denying 28 Motion for Discovery. (Certificate of Service Attached)(napS, COURT STAFF) (Filed on 11/21/2016)
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UNITED STATES DISTRICT COURT
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NORTHERN DISTRICT OF CALIFORNIA
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DAVID RODRIGUEZ,
Petitioner,
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United States District Court
Northern District of California
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Case No.14-cv-03620-PJH
v.
J. LIZARRAGA,
Respondent.
ORDER DENYING PETITION FOR
WRIT OF HABEAS CORPUS AND
GRANTING CERTIFICATE OF
APPEALABILITY
Re: Dkt. Nos. 26, 27, 28
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This is a habeas corpus case filed pro se by a state prisoner pursuant to 28 U.S.C.
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§ 2254. The court ordered respondent to show cause why the writ should not be granted.
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Respondent filed an answer and lodged exhibits with the court and petitioner filed a
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traverse. For the reasons set out below, the petition is denied.
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BACKGROUND
On December 8, 2011, a jury found petitioner guilty of first degree murder and
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personal use of a deadly and dangerous weapon. Clerk's Transcript (“CT”) at 912.
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Petitioner was sentenced to 26 years to life in prison. Id. at 983-84.
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On September 26, 2013, the California Court of Appeal affirmed the conviction in
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an unpublished decision. People v. Rodriguez, No. H038219, 2013 WL 5377062, at *1
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(Cal. Ct. App. Sep. 26, 2013). The California Supreme Court denied review on
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December 18, 2013. Answer, Ex. 9. Petitioner filed this federal habeas petition on
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August 11, 2014. Docket No. 1. The petition was stayed so petitioner could exhaust
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further claims. Petitioner filed a petition in the California Supreme Court on January 15,
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2015, that was summarily denied on March 25, 2015, with citations to People v. Duvall, 9
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Cal. 4th 464, 474 (1995) and In re Swain, 34 Cal. 2d 300, 304 (1949). Answer, Exs. 10,
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11. On December 8, 2015, this court lifted the stay, reopened the case and ordered
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respondent to show cause why the petition should not be granted.
STATEMENT OF FACTS
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The facts relevant to the petition, as described by the California Court of Appeal,
are as follows:
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The Prosecution's Evidence
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At 10:30 a.m. on March 18, 1981, Robert Oswald's halfbrother, Paul Bernards, entered Oswald's San Jose
apartment, and Bernards saw Oswald's dead body on the
bedroom floor. Bernards called the police.
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San Jose Police Department Sergeant Henry Schriefer
responded to Oswald's apartment. When Sergeant Schriefer
entered the apartment, he saw a bloody razor blade and a
small amount of blood on the living room floor. The living
room curtains were closed, and there was blood on the cord
that controlled the opening and closing of the curtains. A
coffee table was pushed up against the couch in the living
room, and a planter on top of the table was tipped over.
There was a small amount of blood on the couch. Sergeant
Schriefer entered the bedroom and saw Oswald's body, which
was covered with lacerations, puncture wounds, and
abrasions. A serrated knife and a bloody towel were on the
floor near Oswald's body. Sergeant Schriefer saw a wet wash
rag and a bloody towel in the dressing room, and he saw
diluted blood on the sink, toilet, and floor of the bathroom.
Sergeant Schriefer's report noted that “[f]or the amount of
injuries to the victim, very little blood was noted.”
Dr. John Hauser performed an autopsy on Oswald's body on
March 19, 1981. Dr. Hauser discovered several fractured
bones in the neck, and he testified that such fractures were
common in manual strangulation cases. Dr. Hauser saw
numerous cuts and stab wounds on the face, neck, trunk,
hands, wrists, abdomen, and left arm. In particular, Dr.
Hauser noted cuts on the forehead, cheeks, and eyelids, as
well as “abundant” bleeding in the left eye. A one-and-a-halfinch cut extended from the left side of the mouth up to the left
cheek, and a one-inch cut extended from the right side of the
mouth up to the right check. Each of these cuts completely
penetrated the thickness of the cheek. There was a laceration
at the base of the tongue and a little bleeding associated with
the laceration. There were cuts on and near the ear, one of
which gaped open to reveal cartilage. Dr. Hauser noted two
stab wounds on the chest, two stab wounds on the abdomen,
cuts on the colon and bowel, and a small amount of blood in
the belly. There were numerous cuts on the back and several
cuts on the wrists. Dr. Hauser determined that Oswald's
death was caused by manual strangulation and multiple cuts
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and stab wounds.
Dr. Michelle Jorden testified as an expert in forensic and
anatomic pathology. She opined that the primary cause of
Oswald's death was manual strangulation, and that the many
stab and incise wounds were contributory causes of Oswald's
death. She explained that the “massive” fractures in Oswald's
neck, along with the associated bruising and bleeding, led her
to believe that manual strangulation was the primary cause of
Oswald's death. She further explained, “This is probably the
worst injury I have seen documented in a strangulation case.”
She classified the stab and incise wounds as contributory
causes of death because those wounds alone could have
potentially killed Oswald, and because the stab and incise
wounds decreased the likelihood that Oswald would survive
the strangulation. Dr. Jorden determined that the manner of
Oswald's death was homicide.
Dr. Jorden testified that Oswald's injuries fell into three
different categories: antemortem (injuries inflicted when
Oswald was alive), perimortem (injuries inflicted when Oswald
was close to death), and postmortem (injuries inflicted when
Oswald was dead). She opined that the many cuts on
Oswald's back were inflicted during the antemortem period,
explaining that the wounds actively bled and soaked Oswald's
shirt with blood. Due to the bleeding associated with the cuts
and stab wounds on Oswald's eyelids, ear, neck, chest, and
abdomen, Dr. Jorden concluded that those wounds were
inflicted during the antemortem or perimortem period. She
determined that the cuts to Oswald's wrists were inflicted
during the perimortem period, explaining that there was very
little blood associated with the cuts. Due to the lack of blood
in the surrounding tissues, Dr. Jorden determined that the
cuts to Oswald's mouth were inflicted during the postmortem
period.
San Jose Police Department Lieutenant Michael Destro was
present at the autopsy, and he saw that a gold charm and ring
had adhered to Oswald's upper back. The charm and ring
appeared to have been forcibly separated from a necklace
chain. The chain was not on Oswald's body, and police did
not find a chain during an extensive search of Oswald's
apartment.
Four bloodstains were present on the left front pocket of the
pants Oswald was wearing. The stains were symmetrical and
linear in pattern. There were two additional bloodstains by the
entry to the pocket, as well as a single bloodstain on the
interior lining of the pocket. A bloodstain expert opined that
the bloodstains were consistent with four bloody fingers
touching the pocket and a single bloody finger pulling the
lining out.
Police investigation did not produce a suspect, and the case
became a cold case. In 2008, criminalists conducted DNA
testing on several items of evidence. The testing revealed
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that defendant was the source of DNA obtained from the
bloody razor blade. Defendant was the source of DNA
obtained from the linear bloodstains on the left front pocket of
Oswald's pants, as well as the source of DNA obtained from
the lining of the pocket. Defendant was the source of DNA
obtained from a bloodstained orange and yellow towel.
Defendant was a “possible major contributor” to a mixture of
DNA on a bloodstained blue, green, and white towel.
As part of the autopsy, Dr. Hauser subjected Oswald's blood
to toxicology testing. The blood contained 0.3 parts per
million of methamphetamine.
Criminalist Trevor Gillis testified as an expert in drug
symptomatology.
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explained
that
a
bloodmethamphetamine concentration of 0.3 parts per million is a
non-fatal concentration and an average concentration in the
abuse population. He also explained that it is “next to
impossible to predict symptomatology” from the concentration
of methamphetamine in a person's blood. He did, however,
describe the following “spectrum of effects” that could be
caused by methamphetamine ingestion: increased heart rate,
increased breathing rate, panic, irritability, nervousness, and
increase in adrenaline. Gillis noted that, with sustained use,
methamphetamine can cause a psychotic break. He also
noted that some studies show that violent activity is
associated with methamphetamine use, and those studies
further show that a methamphetamine user is more likely to
be the victim than the aggressor.
Bernards testified that Oswald used methamphetamine.
Bernards had “frequently” seen Oswald when he was under
the influence of methamphetamine, and Bernards testified that
Oswald was always jubilant and always in a good mood when
he was under the influence of methamphetamine. Bernards
never saw Oswald become aggressive, irritable, or violent
when he was under the influence of methamphetamine.
The Defense Evidence
Defendant testified that he was working as a prostitute in
March of 1981. Oswald agreed to pay defendant money for
sex, and they went to Oswald's apartment. Defendant and
Oswald sat in the living room, and defendant used a razor
blade to cut lines of methamphetamine. Defendant and
Oswald each snorted one line of methamphetamine.
Approximately 10 to 15 minutes after they ingested the
methamphetamine, Oswald became “aggressive” and
“aggravated.” Oswald told defendant that he could not leave
the apartment, and Oswald cut defendant's arm and fingers
with the razor blade. Oswald gave defendant a towel to wipe
the blood from his injuries, and Oswald said, “See what you
made me do?” Defendant stood up to leave the apartment.
Oswald stabbed defendant's shoulder with a steak knife,
causing a cut that was “not life-threatening.” Oswald looked
“crazy” and “wild,” and defendant was afraid that he was going
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to die. Defendant and Oswald struggled for control of the
knife. Defendant “did everything [he] possibly could to stay
alive.” Defendant admitted punching Oswald, strangling
Oswald, and stabbing Oswald's chest and abdomen.
Defendant eventually gained control of the knife, and Oswald
stopped struggling. Defendant dragged Oswald into the
bedroom, and defendant ran out of the apartment.
Defendant testified that the methamphetamine he ingested on
the night of the charged crime made him feel “submissive,
easy-going, friendly.” The methamphetamine did not make
defendant feel agitated.
Defendant admitted that
methamphetamine can “alter someone's perception of things
around them.” Defendant emphasized, however, that the
methamphetamine he ingested did not “take the fear away.”
He also emphasized that the methamphetamine he ingested
“didn't change the way [he] looked at things.” Defendant
explained that his testimony regarding the charged crime
came “directly from [his] mind.”
Dr. Susan Ditter, an expert in forensic psychology and
neurology, performed a “psychological autopsy” on Oswald. A
psychological autopsy is a reconstruction of “the personality,
the relationships, and the entire life history” of a dead person.
In order to conduct the psychological autopsy of Oswald, Dr.
Ditter consulted 26 sources of information, including mental
health records from Oswald's hospitalizations at state
institutions, interviews with Oswald's family and friends, and
police reports. She concluded that Oswald suffered from
borderline personality disorder and polysubstance abuse.
She also determined that when Oswald was in a romantic or
sexual relationship, he would engage in “shoving, slapping,
pushing, intense verbal abuse, screaming.” When Oswald
was under the influence of methamphetamine, he would
become “enraged to the point of violence with a weapon.”
Dr. Paul Herrmann, an expert in forensic pathology, testified
that Oswald's death was caused by strangulation. He testified
that “a lot” of Oswald's stab wounds and incise wounds were
inflicted after Oswald was dead. Specifically, Dr. Herrmann
testified that the cuts to Oswald's mouth, neck, and ear were
inflicted after Oswald was dead, and that the stab wounds on
Oswald's abdomen were “absolutely characteristic” of wounds
inflicted after death. He testified that the cuts on Oswald's
back were “probably” inflicted before Oswald died.
A bloodstain expert opined that the stains on the left front
pocket of Oswald's pants were attributable to “low-velocity
droplets caused by gravity.” The expert testified that “no
bloody fingers went in and out of that pocket.”
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STANDARD OF REVIEW
A district court may not grant a petition challenging a state conviction or sentence
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on the basis of a claim that was reviewed on the merits in state court unless the state
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court's adjudication of the claim: "(1) resulted in a decision that was contrary to, or
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involved an unreasonable application of, clearly established Federal law, as determined
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by the Supreme Court of the United States; or (2) resulted in a decision that was based
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on an unreasonable determination of the facts in light of the evidence presented in the
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State court proceeding." 28 U.S.C. § 2254(d). The first prong applies both to questions
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of law and to mixed questions of law and fact, see Williams (Terry) v. Taylor, 529 U.S.
362, 407-09 (2000), while the second prong applies to decisions based on factual
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determinations, see Miller-El v. Cockrell, 537 U.S. 322, 340 (2003).
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A state court decision is “contrary to” Supreme Court authority, that is, falls under
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the first clause of § 2254(d)(1), only if “the state court arrives at a conclusion opposite to
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that reached by [the Supreme] Court on a question of law or if the state court decides a
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case differently than [the Supreme] Court has on a set of materially indistinguishable
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facts.” Williams (Terry), 529 U.S. at 412-13. A state court decision is an “unreasonable
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application of” Supreme Court authority, falling under the second clause of § 2254(d)(1),
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if it correctly identifies the governing legal principle from the Supreme Court’s decisions
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but “unreasonably applies that principle to the facts of the prisoner’s case.” Id. at 413.
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The federal court on habeas review may not issue the writ “simply because that court
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concludes in its independent judgment that the relevant state-court decision applied
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clearly established federal law erroneously or incorrectly.” Id. at 411. Rather, the
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application must be “objectively unreasonable” to support granting the writ. Id. at 409.
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Under 28 U.S.C. § 2254(d)(2), a state court decision “based on a factual
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determination will not be overturned on factual grounds unless objectively unreasonable
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in light of the evidence presented in the state-court proceeding.” See Miller-El, 537 U.S.
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at 340; see also Torres v. Prunty, 223 F.3d 1103, 1107 (9th Cir. 2000).
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The state court decision to which § 2254(d) applies is the “last reasoned decision”
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of the state court. See Ylst v. Nunnemaker, 501 U.S. 797, 803-04 (1991); Barker v.
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Fleming, 423 F.3d 1085, 1091-92 (9th Cir. 2005). When there is no reasoned opinion
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from the highest state court to consider the petitioner’s claims, the court looks to the last
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reasoned opinion. See Nunnemaker at 801-06; Shackleford v. Hubbard, 234 F.3d 1072,
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1079 n.2 (9th Cir. 2000). The court looks to the California Court of Appeal opinion for the
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first claim in the petition.
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The standard of review under AEDPA is somewhat different where the state court
gives no reasoned explanation of its decision on a petitioner’s federal claim and there is
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no reasoned lower court decision on the claim. In such a case, as with claims two, three
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and four, a review of the record is the only means of deciding whether the state court’s
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decision was objectively reasonable. Himes v. Thompson, 336 F.3d 848, 853 (9th Cir.
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2003); Delgado v. Lewis, 223 F.3d 976, 981-82 (9th Cir. 2000). When confronted with
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such a decision, a federal court should conduct an independent review of the record to
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determine whether the state court’s decision was an objectively unreasonable application
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of clearly established federal law. Himes, 336 F.3d at 853; Delgado, 223 F.3d at 982.
DISCUSSION
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As grounds for federal habeas relief, petitioner asserts that: (1) the conviction must
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be reversed because the trial court's jury instruction regarding voluntary intoxication
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failed to describe the relationship between petitioner’s methamphetamine use and the
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specific intent required for first degree murder by means of torture; (2) the trial court erred
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in failing to hold a competency hearing; (3) trial and appellate counsel were ineffective
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with for failing to raise petitioner’s competency and for failing to adequately aid in plea
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bargaining; and (4) there was insufficient evidence to support the conviction.
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I.
JURY INSTRUCTION
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Petitioner asserts that the trial court erred by not issuing a more specific jury
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instruction regarding petitioner’s voluntary intoxication and the specific intent required for
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first degree murder by means of torture.
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BACKGROUND
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The California Court of Appeal set forth the following facts:
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The trial court instructed the jury on three theories of first
degree murder: 1) premeditated murder; 2) murder by means
of torture; and 3) felony murder during a robbery or attempted
robbery.
The trial court instructed the jury regarding the elements of
torture murder, pursuant to CALCRIM No. 521, as follows:
“The defendant is guilty of first degree murder if the People
have proved that the defendant murdered by torture. The
defendant murdered by torture if: [¶] 1) He willfully,
deliberately, and with premeditation intended to inflict extreme
and prolonged pain on the person killed while that person was
still alive; [¶] 2) He intended to inflict such pain on the person
killed for the calculated purpose of revenge, extortion,
persuasion, or any other sadistic reason; [¶] 3) The acts
causing death involved a high probability of death; [¶] 4) The
torture was the cause of death.”
Pursuant to CALCRIM No. 625, the trial court instructed the
jury regarding voluntary intoxication and its effect on mental
state: “You may consider evidence, if any, of the defendant's
voluntary intoxication only in a limited way. You may consider
that evidence only in deciding whether the defendant acted
with express or implied malice, or whether the defendant
acted with deliberation and premeditation, or whether the
defendant had the specific intent to commit robbery or
attempted robbery with respect to the theory of First Degree
Felony Murder. [¶] A person is voluntarily intoxicated if he or
she becomes intoxicated by willingly using any intoxicating
drug, drink, or other substance knowing it that it could produce
an intoxicating effect, or willingly assumes the risk of that
effect. [¶] You may not consider evidence of voluntary
intoxication for any other purpose.”
Defendant did not object to the instruction regarding voluntary
intoxication.
Rodriguez, 2013 WL 5377062, at *3-4.
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LEGAL STANDARD
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A challenge to a jury instruction solely as an error under state law does not state a
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claim cognizable in federal habeas corpus proceedings. See Estelle v. McGuire, 502
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U.S. 62, 71-72 (1991). To obtain federal collateral relief for errors in the jury charge, a
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petitioner must show that the ailing instruction by itself so infected the entire trial that the
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resulting conviction violates due process. Id. at 72; Cupp v. Naughten, 414 U.S. 141, 147
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(1973). The instruction may not be judged in artificial isolation, but must be considered in
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the context of the instructions as a whole and the trial record. See Estelle, 502 U.S. at
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72. In other words, the court must evaluate jury instructions in the context of the overall
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charge to the jury as a component of the entire trial process. United States v. Frady, 456
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U.S. 152, 169 (1982) (citing Henderson v. Kibbe, 431 U.S. 145, 154 (1977)).
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A state trial court's refusal to give an instruction does not alone raise a ground
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cognizable in a federal habeas corpus proceeding. See Dunckhurst v. Deeds, 859 F.2d
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110, 114 (9th Cir. 1988). The error must so infect the trial that the defendant was
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deprived of the fair trial guaranteed by the Fourteenth Amendment. See id.
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Due process does not require that an instruction be given unless the evidence
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Northern District of California
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supports it. See Hopper v. Evans, 456 U.S. 605, 611 (1982); Menendez v. Terhune, 422
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F.3d 1012, 1029 (9th Cir. 2005). The defendant is not entitled to have jury instructions
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raised in his or her precise terms where the given instructions adequately embody the
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defense theory. United States v. Del Muro, 87 F.3d 1078, 1081 (9th Cir. 1996).
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Whether a constitutional violation has occurred will depend upon the evidence in
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the case and the overall instructions given to the jury. See Duckett v. Godinez, 67 F.3d
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734, 745 (9th Cir. 1995). An examination of the record is required to see precisely what
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was given and what was refused and whether the given instructions adequately
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embodied the defendant's theory. See United States v. Tsinnijinnie, 601 F.2d 1035, 1040
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(9th Cir. 1979). In other words, examining the record allows a determination of whether
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the instruction given was so prejudicial as to infect the entire trial and so deny due
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process. See id.
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ANALYSIS
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Respondent first argues that this claim is procedurally defaulted because the state
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court found that petitioner did not request clarifying language for the jury instruction and
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raised no objection to the instruction. Rodriguez, 2013 WL 5377062, at *4. The
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California Court of Appeal held the claim was not cognizable on appeal. Id. A federal
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court will not review questions of federal law decided by a state court if the decision also
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rests on a state law ground that is independent of the federal question and adequate to
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support the judgment. Coleman v. Thompson, 501 U.S. 722, 729-30 (1991). The Ninth
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Circuit has recognized and applied the California contemporaneous objection rule in
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affirming denial of a federal petition on grounds of procedural default where there was a
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complete failure to object at trial. See Inthavong v. Lamarque, 420 F.3d 1055, 1058 (9th
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Cir. 2005); Paulino v. Castro, 371 F.3d 1083, 1092-93 (9th Cir. 2004). In cases in which
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a state prisoner has defaulted his federal claims in state court pursuant to an
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independent and adequate state procedural rule, federal habeas review of the claims is
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barred unless the prisoner can demonstrate cause for the default and actual prejudice as
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a result of the alleged violation of federal law, or demonstrate that failure to consider the
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claims will result in a fundamental miscarriage of justice. Coleman, 501 U.S at 750.
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Petitioner has failed to present any arguments regarding cause and prejudice for the
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procedural default. Even though this claim is procedurally defaulted, the court will still
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look to the merits of the claim.
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The California Court of appeal denied this claim:
Moreover, even if defendant had requested an instruction that
described the relationship between voluntary intoxication and
the mental state for torture murder, the trial court was not
required to give such an instruction. “A defendant is entitled
to such an instruction only when there is substantial evidence
of the defendant's voluntary intoxication and the intoxication
affected the defendant's ‘actual formation of specific intent.’”
(People v. Williams (1997) 16 Cal. 4th 635, 677.) Here, there
was not substantial evidence that defendant was intoxicated
as a result of his ingestion of methamphetamine, and there
was not substantial evidence that the ingestion of
methamphetamine affected defendant's actual formation of
specific intent to torture.
Defendant testified that the
methamphetamine he ingested made him feel “submissive,
easy-going, friendly.” None of defendant's reported symptoms
corresponded with the expert testimony regarding the
“spectrum of effects” caused by methamphetamine
intoxication, namely increased heart rate, increased breathing
rate, panic, irritability, nervousness, and increase in
adrenaline. Thus, there was no evidence that defendant was
intoxicated as a result of his methamphetamine ingestion.
Additionally, defendant's testimony showed that the
methamphetamine did not affect his perception of events or
his thought process. Defendant specifically testified that the
methamphetamine he ingested “didn't change the way [he]
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looked at things.” He also testified that his methamphetamine
use did not affect the fear that he felt. There was therefore no
evidence that defendant's ingestion of methamphetamine
affected his actual formation of specific intent to torture.
Accordingly, because there was insufficient evidence of
intoxication affecting formation of specific intent, the trial court
was not required to instruct the jury regarding the relationship
between intoxication and the specific intent for torture murder.
(See id. at pp. 677–678 [defendant's statements that he was
“‘doped up’ ” and “smokin' pretty tough” did not constitute
substantial evidence in support of a voluntary intoxication
instruction because there was “no evidence at all that
voluntary intoxication had any effect on defendant's ability to
formulate intent”].)
People v. Pensinger, supra, 52 Cal.3d 1210 is instructive. In
Pensinger, the trial court instructed on several theories of
murder liability, including premeditated murder and murder by
means of torture. (Id. at p. 1236.) The trial court instructed
the jury that evidence of the defendant's intoxication could be
considered in determining whether the defendant acted with
malice or the specific intent to kill. (Id. at p. 1242.) On
appeal, the defendant argued that the trial court “erred in
failing to instruct on the relationship of intoxication to the intent
necessary to prove a torture murder, that is, the intent to inflict
cruel suffering.” (Ibid.) Our Supreme Court held that the trial
court did not err in failing to instruct on the relationship
between voluntary intoxication and the requisite intent for
torture murder, reasoning that “there was not substantial
enough evidence of intoxication in this case to require the
giving of the instruction.” (Id. at p. 1243.)
Defendant's case is analogous to Pensinger. Like Pensinger,
the trial court instructed on torture murder and several other
theories of murder liability, and the trial court's instruction on
voluntary intoxication failed to describe the relationship
between intoxication and the mental state required for torture
murder. Also like Pensinger, there was not substantial
evidence that defendant was in fact intoxicated. Thus,
Pensinger compels us to conclude the trial court here did not
err in failing to instruct the jury regarding the relationship
between intoxication and the mental state for torture murder.
Citing People v. Castillo (1997) 16 Cal. 4th 1009 (Castillo),
defendant argues: “Having properly concluded the trial
evidence supported instructions on how the jurors could
consider the evidence of [defendant's] voluntary intoxication,
the court was bound to instruct correctly on that defense.”
Defendant's argument is flawed in two respects. First, as
discussed above, the evidence did not support an instruction
on voluntary intoxication.
Second, as explained below,
Castillo does not require us to conclude that the trial court
committed instructional error.
Castillo held that a defense attorney did not render ineffective
assistance in failing to request a pinpoint instruction
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specifically relating voluntary intoxication to the mental state
of premeditation and deliberation. (Castillo, supra, 16 Cal.4th
at p. 1012.) Castillo reasoned that such a pinpoint instruction
was unnecessary because “the trial court correctly and fully
instructed the jury on the way in which the evidence of
intoxication related to defendant's mental state, including
premeditation.” (Id. at p. 1015–1016.) In dicta, Castillo noted
that “[e]ven if the court has no sua sponte duty to instruct on a
particular legal point, when it does choose to instruct, it must
do so correctly.” (Id. at p. 1015.)
Castillo did not consider the issue presented in this case—
whether the trial court erred in failing to connect the voluntary
intoxication instruction to the requisite intent for torture murder
where there was not substantial evidence that defendant was
intoxicated. Thus, because “‘cases are not authority for
propositions not considered,’” Castillo does not require us to
find instructional error. (People v. Jones (1995) 11 Cal. 4th
118, 123, fn. 2.) Moreover, even if we relied on the Castillo
dicta regarding the trial court's duty to correctly instruct the
jury, we would not conclude that the voluntary intoxication
instruction was legally incorrect. Defendant does not dispute
that the trial court's instruction correctly stated the legal
principles regarding voluntary intoxication. Defendant simply
contends that the trial court failed to connect those principles
to the mental state for torture murder. Given our conclusion
that there was insufficient evidence of intoxication to support
an instruction regarding the relationship between intoxication
and the specific intent for torture murder, we cannot conclude
that the voluntary intoxication instruction's silence regarding
torture murder rendered the voluntary intoxication instruction
legally incorrect.
In summary, we conclude that the trial court did not err in
failing to instruct the jury regarding the relationship between
voluntary intoxication and the requisite intent for torture
murder. We therefore affirm the judgment of conviction.
Rodriguez, 2013 WL 5377062, at *4-6 (footnote omitted).
Petitioner has failed to demonstrate that the state court opinion was an
22
unreasonable application of Supreme Court authority or an unreasonable determination
23
of the facts. As noted by the state court, petitioner testified at trial that he ingested the
24
methamphetamine, which made him feel “kind of submissive, easy-going, friendly.”
25
Reporter’s Transcript (“RT”) at 1664. He stated that it did not alter his perception
26
regarding the fear he felt and did not cause him to feel agitated or change the way he
27
looked at things. RT at 1685, 1699, 1755. Based on this testimony it was not
28
unreasonable for the trial court to provide only the basic voluntary intoxication instruction,
12
1
2
especially as petitioner never requested an additional instruction.
In addition, the defense theory at trial was self-defense, and trial counsel argued
3
during pretrial motions that the drugs did not affect petitioner the way they affected the
4
victim. RT at 85. Due process does not require that an instruction be given unless the
5
evidence supports it, and the evidence did not support the theory that petitioner presents
6
in this petition. See Hopper, 456 U.S. at 611; Menendez, 422 F.3d at 1029. Even if
7
petitioner could demonstrate that the trial court erred, he has not shown that this error
8
deprived him of the fair trial guaranteed by the Fourteenth Amendment. His own
9
testimony asserted that the drugs made him feel somewhat submissive, easy-going and
friendly, not that the drugs had any effect on his intent to commit the murder. For all
11
United States District Court
Northern District of California
10
these reasons, this claim is denied.
12
II.
13
Petitioner next argues that the trial court violated his rights by failing to sua sponte
COMPETENCY HEARING
14
hold a competency hearing.
15
LEGAL STANDARD
16
Due process requires a trial court to order a psychiatric evaluation or conduct a
17
competency hearing sua sponte if the court has a good faith doubt concerning the
18
defendant’s competence. Pate v. Robinson, 383 U.S. 375, 385 (1966). To be competent
19
to stand trial, a defendant must have (1) “a rational as well as factual understanding of
20
the proceedings against him,” and (2) “sufficient present ability to consult with his lawyer
21
with a reasonable degree of rational understanding.” Dusky v. United States, 362 U.S.
22
402 (1960) (per curiam).
23
Where the evidence before the trial court raises a bona fide doubt as to a
24
defendant’s competence to stand trial, the judge on his own motion must conduct a
25
competency hearing. Pate, 383 U.S. at 385. Evidence of a defendant’s irrational
26
behavior, his demeanor at trial, and any prior medical opinion on competence to stand
27
trial are all relevant in determining whether further inquiry is required, and one of the
28
factors standing alone may, in some circumstances, be sufficient. Drope v. Missouri, 420
13
1
U.S. 162, 180 (1975). A lawyer’s representation concerning the competence of his client
2
also should be considered, as defense counsel will often have the best-informed view of
3
the defendant’s ability to participate in his defense. See Medina v. California, 505 U.S.
4
437, 450 (1992).
5
A state court’s finding of competency to stand trial (as well as to plead guilty) is
6
presumed correct if fairly supported by the record. Deere v. Cullen, 718 F.3d 1124, 1145
7
(9th Cir. 2013). No formal evidentiary or competency hearing is required for the
8
presumption to apply. Id. at 1144-45. Petitioner must come forward with clear and
9
convincing evidence to rebut the presumption. Id. at 1145.
10
The Supreme Court has not determined the particular nature or quantum of
United States District Court
Northern District of California
11
evidence necessary to trigger a competency hearing. Drope, 420 U.S. at 172. “There
12
are, of course, no fixed or immutable signs which invariably indicate the need for further
13
inquiry to determine fitness to proceed; the question is often a difficult one in which a
14
wide range of manifestations and subtle nuances are implicated.” Id. at 180. In
15
reviewing a claim of error resulting from the state court’s failure to hold a competency
16
hearing, a federal habeas court may consider only the evidence that was before the trial
17
judge. Maxwell v. Roe, 606 F.3d 561, 566, 568 (9th Cir. 2010).
18
ANALYSIS
19
This claim was summarily denied by the California Supreme Court with citations to
20
People v. Duvall, 9 Cal. 4th 464, 474 (1995) and In re Swain, 34 Cal. 2d 300, 304 (1949).
21
These citations stand for the proposition that the claims were not presented with sufficient
22
particularity, and the denial is similar to a dismissal with leave to amend. See Curiel v.
23
Miller, 830 F.3d 864, 869, 871 (9th Cir. 2016) (en banc). Petitioner has not filed a new
24
petition with the California Supreme Court with additional information. Therefore, this
25
claim and the other claims in the state petition are unexhausted. The court will still look
26
to the merits of the claims and deny them. See Cassett v. Stewart, 406 F.3d 614, 624
27
(9th Cir. 2005) (a federal court considering a habeas petition may deny an unexhausted
28
claim on the merits when it is perfectly clear that the claim is not “colorable”).
14
1
Petitioner presents only a few allegations to support his contention that the trial
2
court violated his rights by failing to sua sponte hold a competency hearing. He states he
3
has a documented history of mental problems, yet he fails to include any documentation
4
of this history and he fails to even describe his mental problems. Petitioner’s conclusory
5
allegations without support do not warrant habeas relief. See James v. Borg, 24 F.3d 20,
6
26 (9th Cir. 1994).
7
The court has also conducted a review of the record and does not find that
petitioner is entitled to relief. Petitioner testified competently in his own defense about
9
events that occurred 30 years prior to trial. RT at 1652-1774. He testified that he
10
reviewed police reports, defense investigator reports, autopsy reports, and that he
11
United States District Court
Northern District of California
8
discussed them with his attorney. RT at 1654, 1680-81. He also testified that he paid
12
close attention during the trial. RT at 1681. Petitioner’s testimony in his own defense
13
was the “quintessential act of participating in one’s own trial.” Benson v. Terhune, 304
14
F.3d 874, 885 (9th Cir. 2002). In Benson, the defendant’s “lengthy, logical and cogent
15
trial testimony reflects a sufficient ability to understand the proceedings and to assist in
16
her own defense.” Id. at 886.
17
Petitioner identifies nothing in the record to support his claim that he was
18
incompetent at the time of his trial, and he stated at sentencing that he had changed for
19
the better since the victim’s death. RT at 2336-38. To the extent petitioner seeks
20
discovery and an evidentiary hearing and argues that these will provide additional
21
information, those requests are denied as will be discussed below. For all these reasons,
22
this claim is denied.
23
III.
24
Petitioner next argues that trial and appellate counsel were ineffective for failing to
25
INEFFECTIVE ASSISTANCE OF COUNSEL
raise petitioner’s competency and for failing to adequately aid in plea bargaining.
26
LEGAL STANDARD
27
A claim of ineffective assistance of counsel is cognizable as a claim of denial of
28
the Sixth Amendment right to counsel, which guarantees not only assistance, but
15
1
effective assistance of counsel. Strickland v. Washington, 466 U.S. 668, 686 (1984).
2
The benchmark for judging any claim of ineffectiveness must be whether counsel's
3
conduct so undermined the proper functioning of the adversarial process that the trial
4
cannot be relied upon as having produced a just result. Id.
5
In order to prevail on a Sixth Amendment ineffectiveness of trial counsel claim,
6
petitioner must establish two things. First, he must establish that trial counsel's
7
performance was deficient, i.e., that it fell below an "objective standard of
8
reasonableness" under prevailing professional norms. Strickland, 466 U.S. at 687-88.
9
Second, he must establish that he was prejudiced by trial counsel's deficient
performance, i.e., that "there is a reasonable probability that, but for counsel's
11
United States District Court
Northern District of California
10
unprofessional errors, the result of the proceeding would have been different." Id. at 694.
12
A reasonable probability is a probability sufficient to undermine confidence in the
13
outcome. Id.
14
The Due Process Clause of the Fourteenth Amendment guarantees a criminal
15
defendant the effective assistance of counsel on his first appeal as of right. Evitts v.
16
Lucey, 469 U.S. 387, 391-405 (1985). Claims of ineffective assistance of appellate
17
counsel are reviewed according to the standard set out in Strickland. Smith v. Robbins,
18
528 U.S. 259, 285 (2000). First, the petitioner must show that appellate counsel’s
19
performance was objectively unreasonable, which in the appellate context requires the
20
petitioner to demonstrate that appellate counsel acted unreasonably in failing to discover
21
and brief a merit-worthy issue. Smith, 528 U.S. at 285. Second, the petitioner must
22
show prejudice, which in this context means that the petitioner must demonstrate a
23
reasonable probability that, but for appellate counsel’s failure to raise the issue, the
24
petitioner would have prevailed in his appeal. Id. at 285-86. It is important to note that
25
appellate counsel does not have a constitutional duty to raise every nonfrivolous issue
26
requested by defendant. See Jones v. Barnes, 463 U.S. 745, 751-54 (1983). The
27
weeding out of weaker issues is widely recognized as one of the hallmarks of effective
28
appellate advocacy. Miller v. Keeney, 882 F.2d 1428, 1434 (9th Cir. 1989).
16
1
ANALYSIS
2
Similar to the claim above, this claim was not exhausted in state court, but the
3
court will still look to the merits. Petitioner first argues that trial and appellate counsel
4
were ineffective for failing to raise his competency at trial and on appeal. As discussed
5
above, there is no evidence that petitioner was incompetent at trial, and the evidence
6
demonstrates that petitioner understood the proceedings. Nor does petitioner allege that
7
he told either attorney that he was experiencing mental problems that would impair his
8
competency. Petitioner cannot show that either his trial or appellate counsel was
9
deficient, and even if he could, petitioner cannot demonstrate prejudice. Counsel is not
required to make a futile motion. Styers v. Schriro, 547 F.3d 1026, 1030 n.5 (9th Cir.
11
United States District Court
Northern District of California
10
2008). Had trial counsel made a motion or had appellate counsel raised the issue on
12
appeal, the allegations were refuted by the trial record and the motion and appeal would
13
have been denied. Petitioner is not entitled to habeas relief on this claim.
14
Petitioner also contends that his trial attorney failed to advise him of a plea offer
15
that contained a fixed expiration date. However, petitioner provides no information about
16
the content of the plea offer, the expiration date, and how he became aware of it. He
17
provides no documentation to support the existence of the plea offer, nor does he cite to
18
any such documentation in the record. A review of the record provides no evidence to
19
support petitioner’s allegation.
20
Defense counsel’s failure to communicate a formal plea offer from the prosecution
21
regarding a plea with favorable terms and conditions—such as a lesser sentence, a
22
conviction on lesser charges, or both—to the defendant, and allowing that offer to lapse,
23
renders deficient performance. Missouri v. Frye, 132 S. Ct. 1399, 1408-09 (2012). In
24
order to demonstrate prejudice in a case where a plea offer has expired, or been rejected
25
because of counsel’s deficient performance, a defendant must demonstrate that: (1) he
26
would have accepted the offer had he been afforded effective assistance of counsel, and
27
(2) there is a reasonable probability that the plea would have been entered, taking into
28
consideration any discretion the prosecution or trial court had in preventing the offer from
17
1
2
being accepted or implemented. Id. at 11.
In addition to not describing the substance of the plea offer, petitioner does not
3
state that he would have accepted it. He discusses the legal standard set forth in Frye,
4
and paraphrases the language regarding the acceptance of a plea offer, but he does not
5
state that he would have accepted it.
6
Petitioner is not entitled to habeas relief on this claim because he has failed to
7
show that he would have accepted the plea offer and that the plea would have been
8
entered. His conclusory allegations with no support are insufficient. See Borg, 24 F.3d
9
at 26; see also Dows v. Wood, 211 F.3d 480, 486–87 (9th Cir. 2000) (petitioner's “selfserving affidavit” is insufficient evidence of counsel's lack of preparation to prove he was
11
United States District Court
Northern District of California
10
constitutionally ineffective). Nor can petitioner show that appellate counsel was
12
ineffective for failing to raise this frivolous claim that lacks any evidentiary support. See
13
Jones, 463 U.S. at 751-54.
This claim is denied.
14
IV.
15
Petitioner argues that there was insufficient evidence to support his conviction.
16
LEGAL STANDARD
17
The Due Process Clause “protects the accused against conviction except upon
SUFFICIENCY OF THE EVIDENCE
18
proof beyond a reasonable doubt of every fact necessary to constitute the crime with
19
which he is charged.” In re Winship, 397 U.S. 358, 364 (1970). A state prisoner who
20
alleges that the evidence in support of his state conviction cannot be fairly characterized
21
as sufficient to have led a rational trier of fact to find guilt beyond a reasonable doubt
22
therefore states a constitutional claim, see Jackson v. Virginia, 443 U.S. 307, 321 (1979),
23
which, if proven, entitles him to federal habeas relief, see id. at 324.
24
The Supreme Court has emphasized that “Jackson claims face a high bar in
25
federal habeas proceedings . . . .” Coleman v. Johnson, 132 S. Ct. 2060, 2062, 2064
26
(2012) (per curiam) (finding that the Third Circuit “unduly impinged on the jury’s role as
27
factfinder” and failed to apply the deferential standard of Jackson when it engaged in
28
“fine-grained factual parsing” to find that the evidence was insufficient to support
18
1
petitioner’s conviction). A federal court reviewing collaterally a state court conviction
2
does not determine whether it is satisfied that the evidence established guilt beyond a
3
reasonable doubt. Payne v. Borg, 982 F.2d 335, 338 (9th Cir. 1993). The federal court
4
“determines only whether, ‘after viewing the evidence in the light most favorable to the
5
prosecution, any rational trier of fact could have found the essential elements of the crime
6
beyond a reasonable doubt.’” Payne, 982 F.2d at 338 (quoting Jackson, 443 U.S. at
7
319). Only if no rational trier of fact could have found proof of guilt beyond a reasonable
8
doubt has there been a due process violation. Jackson, 443 U.S. at 324; Payne, 982
9
F.2d at 338.
ANALYSIS
11
United States District Court
Northern District of California
10
The court will look to the merits of this unexhausted claim, but Petitioner is not
12
entitled to relief. He admitted to punching, strangling and stabbing the victim. RT at
13
1670-75, 1704-35. Petitioner was six feet, two inches tall and weighed 145 pounds while
14
the victim was five feet, seven inches tall and weighed 128 pounds. RT at 380, 1649.
15
Dr. Jorden, a medical examiner, testified that the victim’s death was a homicide caused
16
by strangulation with the contributory causes of multiple stab and incise wounds. RT at
17
1515. DNA evidence linked petitioner to bloodstains on the razor blade, the victim’s
18
pants and several towels. RT at 828-32, 846-47, 853-56, 860-62, 868-69, 913-28, 933-
19
40, 1647-48. Petitioner has failed to demonstrate that no rational trier of fact could have
20
found proof of guilt beyond a reasonable doubt based on this evidence. The claim is
21
denied.
22
MOTIONS
23
Petitioner has also filed motions for an evidentiary hearing, discovery and to
24
expand the record. His motions only present general legal arguments and do not provide
25
any specific allegations. The motion for an evidentiary hearing is denied because in
26
reviewing the reasonableness of a state court's decision to which § 2254(d)(1) applies, a
27
district court may rely only on the record that was before the state court. See Cullen v.
28
Pinholster, 563 U.S. 170, 181-82 (2011) (holding that new evidence presented at
19
1
evidentiary hearing cannot be considered in assessing whether state court's decision
2
"was contrary to, or involved an unreasonable application of, clearly established Federal
3
law" under § 2254(d)(1)). Therefore, a federal court generally is precluded from
4
supplementing the record with facts adduced for the first time at a federal evidentiary
5
hearing when a petitioner's claim has been adjudicated on the merits in state court. With
6
respect to petitioner’s claims that were not denied on the merits in state court, he has
7
failed to meet his burden to demonstrate that he is entitled to an evidentiary hearing by
8
only presenting general arguments.
9
A habeas petitioner, unlike the usual civil litigant in federal court, is not entitled to
discovery as a matter of ordinary course. See Bracy v. Gramley, 520 U.S. 899, 904
11
United States District Court
Northern District of California
10
(1997). However, Rule 6(a) of the Federal Rules Governing Section 2254 Cases, 28
12
U.S.C. foll. § 2254, provides that a "judge may, for good cause, authorize a party to
13
conduct discovery under the Federal Rules of Civil Procedure and may limit the extent of
14
discovery." Before deciding whether a petitioner is entitled to discovery under Rule 6(a)
15
the court must first identify the essential elements of the underlying claim. See Bracy,
16
520 U.S. at 904 (difficulties of proof aside, petitioner's allegation of judicial bias, if proved,
17
would violate due process clause). The court must then determine whether the petitioner
18
has shown "good cause" for appropriate discovery to prove his claim. See id. Petitioner
19
has failed to show good cause by essentially stating, with no specificity, that he seeks all
20
information and documents related to his case.
21
22
APPEALABILITY
The federal rules governing habeas cases brought by state prisoners require a
23
district court that denies a habeas petition to grant or deny a certificate of appealability
24
(“COA”) in the ruling. See Rule 11(a), Rules Governing § 2254 Cases, 28 U.S.C. foll.
25
§ 2254 (effective December 1, 2009).
26
To obtain a COA, petitioner must make “a substantial showing of the denial of a
27
constitutional right.” 28 U.S.C. § 2253(c)(2). “Where a district court has rejected the
28
constitutional claims on the merits, the showing required to satisfy § 2253(c) is
20
1
straightforwar The pet
rd:
titioner mus demonstr
st
rate that reasonable ju
urists would find the
d
2
dis
strict court’s assessme of the co
s
ent
onstitutiona claims de
al
ebatable or wrong.” See Slack v.
3
Mc
cDaniel, 529 U.S. 473, 484 (2000 Section 2253(c)(3) requires a court gran
9
,
0).
)
nting a COA
A
4
to indicate wh
hich issues satisfy the COA stand
dard. Here, the court f
finds that th first
he
5
cla in the petition rega
aim
arding the ju instructiion meets t above s
ury
the
standard an
nd
6
acc
cordingly GRANTS the COA sole for that c
G
e
ely
claim. See generally Miller-El, 53 U.S. at
e
37
7
327.
8
Accord
dingly, the clerk shall fo
c
orward the file, includi a copy of this orde to the
ing
er,
9
nth
C
ppeals. See Fed. R. A
e
App. P. 22(b United S
b);
States v. As
srar, 116
Nin Circuit Court of Ap
F.3 1268, 12 (9th Cir 1997). Petitioner is cautioned t
3d
270
r.
that the cou
urt's ruling on the
11
United States District Court
Northern District of California
10
cer
rtificate of appealabilit does not relieve him of the obli
a
ty
m
igation to file a timely notice of
12
appeal if he wishes to ap
w
ppeal.
CONCLU
USION
13
14
1. The petition fo writ of habeas corpu is DENIE on the m
e
or
us
ED
merits. A ce
ertificate of
15
appealability is GRANTE
ED. See Rule11(a) of the Rules Governing Section 22 Cases.
f
254
16
2. Petitioner’s mo
otions (Doc
cket Nos. 26 27, 28) a DENIED
6,
are
D.
17
3. The clerk shall close the file.
e
f
18
IT IS SO ORDER
S
RED.
19
ated: Novem
mber 21, 20
016
Da
20
21
PH
HYLLIS J. H
HAMILTON
N
Un
nited States District Ju
s
udge
22
23
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ndoak.cand.circ9
9.dcn\data\users\PJHALL\_psp\2
2014\2014_03620
0_Rodriguez_v_
_Lizarraga_(PSP)\14-cv-03620-PJH-hc.docx
24
25
26
27
28
21
1
2
UNITED STATES D
DISTRICT C
COURT
3
NORTHER DISTRIC OF CAL
N
RN
CT
LIFORNIA
4
5
DAVID ROD
DRIGUEZ,
Case No. 14-cv-036
620-PJH
Plaintiff,
6
v.
CERTIFIC
CATE OF S
SERVICE
7
8
J. LIZARRAG
.
GA,
Defendant.
9
10
United States District Court
Northern District of California
11
12
13
14
15
I, the undersigned hereby ce
u
d,
ertify that I am an emp
ployee in th Office of the Clerk,
he
f
U.S District Court, North
S.
C
hern Distric of Californ
ct
nia.
That on Novembe 21, 2016, I SERVED a true and correct co
er
D
d
opy(ies) of the
attached, by placing said copy(ies) in a postag paid env
p
d
ge
velope addr
ressed to th
he
person(s) her
reinafter list
ted, by depositing said envelope in the U.S. Mail, or by placing
d
y
said copy(ies) into an int
ter-office de
elivery rece
eptacle loca
ated in the C
Clerk's offic
ce.
16
17
18
avid Rodrig
guez ID: AL
L2755
Da
Mu Creek State Prison
ule
S
n
P.O Box 409040
O.
Ion CA 9564
ne,
40
19
20
21
ated: Novem
mber 21, 20
016
Da
22
23
Susan Y. So
oong
Clerk, United States Dis
d
strict Court
C
24
25
26
y:________
_________
_________
By
Nichole Peric Deputy C
c,
Clerk to the
e
Honorable P
PHYLLIS J. HAMILTON
N
27
28
22
2
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