Deleon v. McDonald
Filing
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ORDER DENYING PETITION FOR WRIT OF HABEAS CORPUS; DENYING CERTIFICATE OF APPEALABILITY. The clerk shall terminate any pending motions, enter judgment in favor of Respondent, and close the file. Signed by Judge Edward J. Davila on 2/7/2013. (ecg, COURT STAFF) (Filed on 2/7/2013)
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IN THE UNITED STATES DISTRICT COURT
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FOR THE NORTHERN DISTRICT OF CALIFORNIA
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JOSE RUBEN DELEON,
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For the Northern District of California
United States District Court
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Petitioner,
vs.
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M.D. MCDONALD, Warden,
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Respondent.
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No. C 11-02121 EJD (PR)
ORDER DENYING PETITION FOR
WRIT OF HABEAS CORPUS;
DENYING CERTIFICATE OF
APPEALABILITY
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Petitioner has filed a pro se Petition for a Writ of Habeas Corpus under 28
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U.S.C. § 2254 challenging a judgment of conviction from San Mateo County
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Superior Court. For the reasons set forth below, the Petition for a Writ of Habeas
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Corpus is DENIED.
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PROCEDURAL BACKGROUND
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On February 26, 2009, a jury found Petitioner guilty of first degree burglary
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and petty theft with a prior conviction for receiving stolen property. Resp. at 1. On
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May 1, 2009, the trial court sentenced Petitioner to a term of eighteen years in state
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prison. Pet. at 2.
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On July 15, 2010, the state appellate court affirmed the judgment. Pet., Ex. 1.
On September 22, 2010, the California Supreme Court denied review. Resp. Ex. 8.
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Order Denying Petitioner for Writ of Habeas Corpus; Denying Certificate of Appealability
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Petitioner filed this instant petition for a writ of habeas corpus on April 29, 2011.
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For the Northern District of California
United States District Court
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DISCUSSION
A.
Factual Background
The facts of Petitioner’s underlying offenses were summarized in the state
appellate court’s opinion:
Monique Topp testified that on April 28, 2008, at about
2:45 a.m., she was sleeping with her one-year-old daughter in the
front upstairs bedroom of her two-story townhouse apartment
located in a townhouse apartment complex called the Franciscan
Apartments (the Franciscan Apartments). Her husband was
sleeping in the back upstairs bedroom with their four-year-old son.
Topp woke up “to a fair amount of noise” that “sounded a lot like
something was banging on the floor or just a lot of commotion
was going on.” “It was hard to say exactly where [the noise] was
coming from” but it “[s]ounded like it was coming from
downstairs.” She thought her husband was up and she “was fairly
angry that he was going to wake up [the] whole family making so
much noise.” She went to the top of the stairs to see what was
going on and found her husband there. Seeing each other there,
they realized someone else was in their home and panicked. She
saw a red glow in the front entrance area that was “perhaps a
flashlight,” but the area was otherwise “completely black” and she
could not “see a shadow or anything else of a human being.” Her
husband grabbed a heavy model train and yelled something like,
“get out.” She heard “a sudden movement at the door” as the
person tried to open the front door but was unable to because of
the chain lock. She then heard the person take the chain lock off
and leave.
Once they thought the person was gone, Topp and her
husband went downstairs and called the police. Topp noticed the
bathroom window was “wide open.” She had opened the window
about half way that day but had “definitely closed” it, although
she had not locked it because the lock was “a little bit
unpredictable.” All of the other windows in the house were still
closed and locked. Various items that were previously on the
bathroom windowsill had fallen onto the bathroom floor. Topp
testified that although it would be difficult, a person could fit
through the bathroom window.
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Upon looking around, Topp discovered that her laptop
computer, which she purchased about eight months before the
burglary for about $600, was missing from a desk in the living
room. Topp testified she usually closes the blinds on the living
room window but had not closed them that day. A person looking
through the living room window could see the light from the
computer monitor. Topp testified that the day after the incident,
she noticed the screens on both the living room and bathroom
windows had been taken off and were on the ground outside the
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Order Denying Petitioner for Writ of Habeas Corpus; Denying Certificate of Appealability
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windows. She had taken off the screen to the living room window
a few days before the incident to let a bee out but had reattached
it. Before she went to bed on April 27, 2008, the screens on both
the bathroom and living room windows were attached.
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Topp testified that outside of her bathroom window
between her house and other town houses, there is a walkway on
which people often travel. She had never seen or met appellant,
had never invited him into her home and had never asked him to
work at her home. There was no reason he would be at her living
room or bathroom window. She had no window cleaning service
and had never cleaned the windows from the outside.
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For the Northern District of California
United States District Court
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Foster City Police Officer William Beck testified he was on
duty at about 2:50 a.m. on April 28, 2008, and went to the
Franciscan Apartments in response to a report of a residential
burglary. When he arrived at the victims’ apartment, he noticed
the front door was open. The bathroom window was also open
and a screen was on the ground. Another window “some ways
down” was closed but the screen of that window was also on the
ground. Beck testified the bathroom window was large enough
for him to fit through it, although “[p]robably” not if he was
wearing his “gear.” Beck examined the bathroom and living room
windows for fingerprints and lifted a total of eight prints. One of
the prints was taken from the exterior of the bathroom window
and the remaining prints were taken from the exterior of the living
room window. Beck testified the print he collected from the
bathroom window came from the center-right portion of the left
window pane as viewed from the outside. [FN2] He testified the
four prints he collected from the living room window likewise
came from the left pane of the window as viewed from the
outside. Each of the prints he collected was found “on the sliding
part of the window.” Beck also took “elimination prints” from
Topp and her husband, which are “sample[s] of the resident[s’]
prints so they can be eliminated” if they match the collected
prints.
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FN2. Two of the exhibits are photographs of the bathroom
window. They show the window is composed of two panes
and that when viewed from the outside, the left pane is the
sliding pane that opens.
San Mateo County Sheriff’s Office forensic specialist
Samantha Kranitz testified she analyzed the collected prints. Six
of the prints were suitable for comparison. Of these, five did not
belong to residents of the home; the sixth was inconclusive. One
of the five prints was from the bathroom window and four were
from the living room window. The Foster City Police Department
provided her with the names of two possible suspects; the prints
did not match either of them. She then entered the five prints into
the Automated Fingerprinting Identification System (AFIS) and
received a list of the 20 people whose prints most closely
matched. She went through each of the 20 candidates and found
that 19 of them did not match the latent prints. Appellant’s prints
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For the Northern District of California
United States District Court
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were the only set of prints that had similarities. She printed out
appellant’s fingerprint record and performed side by side
comparisons. She concluded with 100 percent certainty that the
five latent prints belonged to appellant. She testified there was no
way to tell how the print was oriented on the surface. She stated,
“there’s no way to really say when prints can be deposited on a
surface. The only timeframe you can give in a case like this on a
window is theoretically anytime the subject has made those prints
could have been deposited on that surface.” She agreed “it is
entirely possible for someone to touch a surface in some manner
and not leave a latent print,” and that “just because a police officer
is not able to lift latent prints from various areas of a crime scene
doesn't mean that a suspect didn’t touch that area.”
Cristina Clary testified she was in a dating relationship
with appellant for four years, beginning in 2004 and ending in
“[a]bout April” of 2008. She moved into her apartment in the
Franciscan Apartments on March 1, 2008, and was living there in
April 2008. She and appellant lived there together from March
2008 until she “kicked him out” in April or “perhaps” May 2008.
They continued to spend time together socially until June 2008,
when their relationship ended completely. During that time,
appellant came to her apartment to pick her up but did not go
inside. If they spent the night together, it was not at her place.
She testified she had no recollection of appellant leaving and
going out in the middle of the night when he was staying with her.
She also had no recollection of him bringing a laptop computer
home. She testified appellant did not tell her much about his
private life and “never really involved [her] in too much into that
or whatever he was doing.” She testified she always enters and
leaves the Franciscan Apartments by way of an entryway that is
closest to her unit and that she was not familiar with - and had
never walked on - the path that ran by the victims’ apartment.
Foster City Police Officer Richard Colbachhini testified he
went to the victims’ apartment on a report of a residential
burglary. He dusted the interior of the bathroom including the
windowsill and “the entire window frame” and the front door area
for prints but was unable to lift any latent prints. He also checked
the desk “where the laptop computer was” but did not dust it
because he “didn't find anything visually” when he used his light
to look for prints. The window screens were also processed for
prints but no prints were found. Colbachhini testified the
bathroom window was 23 inches wide by 35 inches high and it
appeared an adult would be able to fit through it. He also testified
“there are a number of apartment buildings between where [Clary]
lived and . . . where [the victims] live.”
Foster City police detective Brian Tidwell testified that
after being notified of the burglary, he searched for possible leads.
He was working on other cases involving burglaries that had
occurred in Foster City and was already investigating two
individuals, whose names he submitted to the lab, thinking
“something will come of the prints that Officer Beck lifted from
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the scene in this case.” “[I]t was just a hunch,” and “giving the
crime lab the name[s] . . . wasn't rooted in anything more
substantial.”
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Tidwell received information from the crime lab that the
prints found at the scene were identified as belonging to appellant.
He interviewed appellant on July 30, 2008, after advising him of
his Miranda [footnote omitted] rights. Appellant told Tidwell he
had a girlfriend named Cristina who lived in Foster City, near the
“Safeway grocery store on Hillsdale Boulevard.” Tidwell testified
that the Safeway to which appellant referred is about two and a
half blocks east and about three blocks south of the Franciscan
Apartments. When Tidwell asked appellant when he had last been
in Foster City, appellant said he had not been there for about a
year. Tidwell went to the victims’ home and took photographs of
the exterior. He testified that the bathroom and living room
windows were on the south side of the home, about 10 to 15 feet
apart from each other. He testified there was a pathway about
eight feet away from the windows and that “you would have to
actually proactively divert yourself from walking down that path
to walk over to the living room window” and that “you would
have to be even more aggressive to get up to the bathroom
window.
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For the Northern District of California
United States District Court
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People v. DeLeon, No. A124911, 2010 WL 2796452 at *1-*3 (Cal. Ct. App. July
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15, 2010). Pet., Ex. 1 at 2-6.
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B.
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Standard of Review
This Court may entertain a petition for a writ of habeas corpus “in behalf of a
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person in custody pursuant to the judgment of a State court only on the ground that
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he is in custody in violation of the Constitution or laws or treaties of the United
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States.” 28 U.S.C. § 2254(a). The writ may not be granted with respect to any
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claim that was adjudicated on the merits in state court unless the state court’s
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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
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determined by the Supreme Court of the United States; or (2) resulted in a decision
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that was based on an 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(d).
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“Under the ‘contrary to’ clause, a federal habeas court may grant the writ if
the state court arrives at a conclusion opposite to that reached by [the Supreme]
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Court on a question of law or if the state court decides a case differently than [the]
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Court has on a set of materially indistinguishable facts.” Williams v. Taylor, 529
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U.S. 362, 412-13 (2000). The only definitive source of clearly established federal
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law under 28 U.S.C. § 2254(d) is in the holdings (as opposed to the dicta) of the
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Supreme Court as of the time of the state court decision. Williams, 529 U.S. at 412;
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Brewer v. Hall, 378 F.3d 952, 955 (9th Cir. 2004). While circuit law may be
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“persuasive authority” for purposes of determining whether a state court decision is
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an unreasonable application of Supreme Court precedent, only the Supreme Court’s
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holdings are binding on the state courts and only those holdings need be
“reasonably” applied. Clark v. Murphy, 331 F.3d 1062, 1069 (9th Cir.), overruled
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For the Northern District of California
United States District Court
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on other grounds by Lockyer v. Andrade, 538 U.S. 63 (2003).
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“Under the ‘unreasonable application’ clause, a federal habeas court may
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grant the writ if the state court identifies the correct governing legal principle from
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[the Supreme Court’s] decisions but unreasonably applies that principle to the facts
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of the prisoner’s case.” Williams, 529 U.S. at 413. “Under § 2254(d)(1)’s
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‘unreasonable application’ clause, . . . a federal habeas court may not issue the writ
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simply because that court concludes in its independent judgment that the relevant
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state-court decision applied clearly established federal law erroneously or
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incorrectly.” Id. at 411. A federal habeas court making the “unreasonable
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application” inquiry should ask whether the state court’s application of clearly
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established federal law was “objectively unreasonable.” Id. at 409. The federal
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habeas court must presume correct any determination of a factual issue made by a
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state court unless the petitioner rebuts the presumption of correctness by clear and
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convincing evidence. 28 U.S.C. § 2254(e)(1).
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The state court decision to which Section 2254(d) applies is the “last
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reasoned decision” of the state court. See Ylst v. Nunnemaker, 501 U.S. 797, 803-
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04 (1991); Barker v. Fleming, 423 F.3d 1085, 1091-92 (9th Cir. 2005). When there
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is no reasoned opinion from the highest state court considering a petitioner’s claims,
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the court “looks through” to the last reasoned opinion. See Ylst, 501 U.S. at 805.
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Here, that opinion is from the California Court of Appeal.
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Recently, the Supreme Court vigorously and repeatedly affirmed that under
state court decisions. See Hardy v. Cross, 132 S. Ct. 490, 491 (2011) (per curiam);
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Harrington v. Richter, 131 S. Ct. 770, 783-85 (2011); Felkner v. Jackson, 131 S. Ct.
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1305 (2011) (per curiam). As the Court explained: “[o]n federal habeas review,
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AEDPA ‘imposes a highly deferential standard for evaluating state-court rulings’
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and ‘demands that state-court decisions be given the benefit of the doubt.’” Id. at
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For the Northern District of California
AEDPA, there is a heightened level of deference a federal habeas court must give to
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United States District Court
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1307 (citation omitted). With these principles in mind regarding the standard and
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limited scope of review in which this Court may engage in federal habeas
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proceedings, the Court addresses Petitioner’s claim.
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C.
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Claim and Analysis
Petitioner claims that the evidence was insufficient to sustain a conviction of
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first degree burglary. Specifically, Petitioner asserts that the only evidence
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implicating his involvement in the crime were that his fingerprints were found on the
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outside of the victims’ living room and bathroom windows. Petitioner argues, inter
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alia, that there was no evidence that he was seen committing the crime, that he
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possessed the stolen computer, or that he had no prior opportunity to touch the
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windows prior to the commission of the crime. Petitioner further contends that the
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Ninth Circuit’s opinion in Mikes v. Borg, 947 F.2d 353 (9th Cir. 1991) controls this
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case.
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The state appellate court rejected this claim. It stated that the five latent
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prints which were lifted from the “sliding” part of two windows of the victims’
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home, including the bathroom window, which was the point of entry, matched the
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fingerprints of Petitioner’s with 100 percent certainty. Pet., Ex. 1 at 7. According to
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state case law, when prints are found at the place of forced entry, and in an area that
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is normally inaccessible to others, there is a reasonable basis to infer that the prints
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were made at the time of the crime. Id. The state appellate court further found that:
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the evidence provided a reasonable inference that the bathroom window had been
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covered by a screen and the burglar removed the screen, leaving fingerprints on the
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sliding portion of the window as he entered the home; because the windows were in
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an area not readily accessible to the public, it was not likely that Petitioner
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innocently had touched those windows; and Petitioner falsely claimed that he had
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not been in Foster City for around one year, when his girlfriend testified that
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For the Northern District of California
United States District Court
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Petitioner had stayed with her several times around the time of the crime.
A federal court reviewing collaterally a state court conviction does not
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determine whether it is satisfied that the evidence established guilt beyond a
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reasonable doubt. Payne v. Borg, 982 F.2d 335, 338 (9th Cir. 1992). Nor does a
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federal habeas court in general question a jury’s credibility determinations, which
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are entitled to near-total deference. Jackson v. Virginia, 443 U.S. 307, 326 (1979).
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Only if no rational trier of fact could have found proof of guilt beyond a reasonable
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doubt, may the writ be granted. Id. at 324. “[T]he only question under Jackson is
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whether that [jury] finding was so insupportable as to fall below the threshold of
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bare rationality.” Coleman v. Johnson, 132 S. Ct. 2060, 2065 (2012). Further,
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sufficiency claims on federal habeas review are subject to a “twice-deferential
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standard.” Parker v. Matthews, 132 S. Ct. at 2152 (2012) (per curiam). First, relief
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must be denied if, viewing the evidence in the light most favorable to the
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prosecution, there was evidence on which “any rational trier of fact could have
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found the essential elements of the crime beyond a reasonable doubt.” Id. (quoting
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Jackson, 443 U.S. at 324). Second, a state court decision denying a sufficiency
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challenge may not be overturned on federal habeas unless the decision was
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“objectively unreasonable.” Id. (quoting Cavazos v. Smith, 132 S. Ct. 2, 4 (2011)).
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Petitioner’s reliance on Mikes is unavailing. Mikes is a pre-AEDPA case,
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and although it may be persuasive, it is not dispositive of this federal habeas
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petition. See Clark, 331 F.3d at 1069. Moreover, Mikes is distinguishable. In
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Mikes, the sole evidence against the defendant was the presence of his fingerprints
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on a turnstile post, the murder weapon. Mikes, 947 F.2d at 355. The turnstile was
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purchased by the victim approximately 4 months prior to the crime. Id. Out of 46
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fingerprints, 16 were identifiable, and 6 belonged to Mikes. Id. The prosecution
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provided no evidence placing Mikes at the scene of the crime on any occasion, much
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less the around the time of the crime. The Ninth Circuit focused on whether the
record demonstrated that Mikes’ prints were placed on turnstile posts at the time of
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For the Northern District of California
United States District Court
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the murder. Id. at 357. The Court went on to say that a definition of the “relevant
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time” was “the time prior to the commission of the crime during which the defendant
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reasonably could have placed his fingerprints on the object in question and during
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which such prints might have remained on that object.” Id. The Court concluded
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that the relevant time included the time when the turnstile was for sale in a public,
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readily accessible area, prior to the victim’s purchase. Id. On the other hand, here,
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the evidence shows that the victims’ windows were approximately eight feet away
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from the public walkway, and one would have to be “aggressive” to reach the
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bathroom window. Pet., Ex. 1 at 8. In addition, out of the six fingerprints lifted
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from the windows, one was inconclusive and the other five definitively belonged to
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Petitioner. Further, the pathway was not the closest to Petitioner’s girlfriend’s
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residence, making it more unlikely that Petitioner would have an innocent reason to
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have touched the victims’ windows. Id. at 9. Finally, that Petitioner described his
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girlfriend’s residence in Foster City, but in an area several blocks away from her
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actual complex, and further lied about when he was last at the complex are
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circumstantial evidence of guilt. Cf. Walters v. Maass, 45 F.3d 1355, 1358 (9th Cir.
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1995) (noting that circumstantial evidence and inferences drawn from that evidence
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may be sufficient to sustain a conviction).
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Petitioner’s intimation that his fingerprints could have been placed on those
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windows at an earlier time for some innocent reason is not enough to invalidate his
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conviction. See Taylor v. Stainer, 31 F.3d 907, 910 (9th Cir. 1994) (three
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hypotheses regarding petitioner’s fingerprints which government failed to rebut was
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unsupported by evidence, and therefore insufficient to invalidate conviction). The
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prosecution need not affirmatively rule out every hypothesis except that of guilt.
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Wright v. West, 505 U.S. 277, 296-97 (1992) (quoting Jackson, 443 U.S. at 326).
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Here, on this record, the Court cannot say that the state court’s conclusion
was an unreasonable application of Jackson. The petition is DENIED.
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For the Northern District of California
United States District Court
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CONCLUSION
After a careful review of the record and pertinent law, the Court concludes
that the Petition for a Writ of Habeas Corpus must be DENIED.
Further, a Certificate of Appealability is DENIED. See Rule 11(a) of the
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Rules Governing Section 2254 Cases. Petitioner has not made “a substantial
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showing of the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). Nor has
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Petitioner demonstrated that “reasonable jurists would find the district court’s
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assessment of the constitutional claims debatable or wrong.” Slack v. McDaniel,
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529 U.S. 473, 484 (2000). Petitioner may not appeal the denial of a Certificate of
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Appealability in this Court but may seek a certificate from the Court of Appeals
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under Rule 22 of the Federal Rules of Appellate Procedure. See Rule 11(a) of the
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Rules Governing Section 2254 Cases.
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The clerk shall terminate any pending motions, enter judgment in favor of
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Respondent, and close the file.
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SO ORDERED.
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DATED:
2/6/2013
EDWARD J. DAVILA
United States District Judge
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UNITED STATES DISTRICT COURT
FOR THE
NORTHERN DISTRICT OF CALIFORNIA
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JOSE RUBEN DELEON,
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Case Number: CV11-02121 EJD
Petitioner,
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CERTIFICATE OF SERVICE
v.
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M.D. MCDONALD,
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Respondent.
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For the Northern District of California
United States District Court
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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.
2/7/2013
That on ___________________, 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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Jose Ruben Deleon
V-59273
High Desert State Prison
P. O. 3030
Susanville, CA 96127
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2/7/2013
Dated: ___________________
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Richard W. Wieking, Clerk
/s/By: Elizabeth Garcia, Deputy Clerk
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