Leon v. Cate

Filing 30

ORDER denying Certificate of Appealability. Signed by Judge Larry Alan Burns on 4/24/2013. (Order electronically transmitted to US Court of Appeals.)(akr)(jrd)

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UNITED STATES DISTRICT COURT

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SOUTHERN DISTRICT OF CALIFORNIA

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JOSE LUIS LEON,

CASE NO. 09cv2219-LAB (WMc)

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Plaintiff,

ORDER DENYING CERTIFICATE
OF APPEALABILITY

vs.
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MATTHEW CATE, Secretary,
Defendant.

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Petitioner Jose Luis Leon was convicted in California state court of second degree

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murder and of making a criminal threat, with enhancements for committing the offenses for

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the benefit of a criminal street gang and using a firearm. After exhausting some of his claims,

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he filed his petition in this Court. At all stages — trial, appeal, and now federal habeas — he

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has been represented by counsel.

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The Court required him to either amend his complaint to omit unexhausted claims,

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or face dismissal of his petition altogether, pursuant to Rose v. Lundy, 455 U.S. 509, 510

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(1982). Although the Court’s determination was based on procedural grounds (failure to

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exhaust), as part of its analysis of his request for stay-and-abeyance, the order also reached

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the merits of his unexhausted claims. Leon then filed an amended complaint. After the

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petition was fully briefed, the Court denied the petition on the merits. Leon now seeks to

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appeal that denial.
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09cv2219

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To the extent the Court based its denial of the petition on procedural grounds, the

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Court will issue a certificate of appealability (COA) when the petitioner shows that

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reasonable jurists would find the Court’s procedural ruling either debatable or wrong, and

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also that reasonable jurists would find it debatable whether the petition states a valid claim.

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See Slack v. McDaniel, 529 U.S. 473, 484–85 (2000). To the extent the Court based its

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decision on the merits, a COA will issue if reasonable jurists would find the Court’s resolution

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of Leon’s claims debatable or wrong. Id. at 484.

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As part of its analysis of the unexhausted claims, the Court discussed his stated

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reasons for failure to exhaust, and found them insufficient. The California Supreme Court

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denied Leon’s petition for review on July 9, 2008, and his conviction became final October

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7, 2008. His family retained counsel in April, 2009 to assist him with a federal habeas

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petition, and Leon’s new counsel then began collecting records pertaining to the case. He

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requested Leon’s trial counsel’s file, but trial counsel couldn’t produce it. This, he argued,

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amounted to good cause for failure to exhaust, and Leon’s counsel requested more time to

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obtain the files, in order to determine whether trial counsel had conducted an adequate

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pretrial investigation. But Leon’s counsel on direct appeal could have requested and

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obtained the files, if they were important. The fact that Leon’s various attorneys waited until

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after filing his federal habeas petition to start looking into these issues does not excuse

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failure to exhaust.

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Turning to Leon’s exhausted claims, his claim of insufficient evidence to support a

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conviction faces insurmountable obstacles. It is not enough that he overcome the deferential

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standard set forth in Jackson v. Virginia, 433 U.S. 307, 319 (1980). He must also show that

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the state courts’ judgment was objectively unreasonable, and this double deference owed

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to the state court judgment is rarely surmounted. See Boyer v. Belleque, 659 F.3d 957,

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964–65 (9th Cir. 2011). For reasons set forth in the Court’s order denying the petition, the

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evidence was easily sufficient to satisfy the deferential Jackson standard. Even if some

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reasonable jurists might find that conclusion at least debatable, the second layer of

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deference puts any debate to rest.
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09cv2219

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Leon’s second claim is based on allegations of juror misconduct; specifically, he

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argues, jurors failed to deliberate on particular issues. The record, however, shows that the

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Court inquired of jurors about this, and on the basis of these inquiries and of jurors’

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reaffirmance of their already-recorded verdict, made the factual determination that they did

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deliberate on all issues. This factual determination is presumed to be correct unless Leon

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rebuts the presumption with clear and convincing evidence. See 28 U.S.C. § 2254(e)(1);

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Davis v. Woodford, 384 F.3d 628, 638 (9th Cir. 2004). Furthermore, the state courts’

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decision based on the trial judge’s factual determination will not be overturned on factual

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grounds unless objectively unreasonable in light of the evidence presented in that

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proceeding. See Miller-El v. Cockrell, 537 U.S. 322, 340 (2003). The California Court of

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Appeals determined that, as to charges against Leon, all jurors who were questioned

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reaffirmed their guilty verdict, and all but one reaffirmed their already-recorded finding on

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Leon’s gang enhancement.1 The state courts’ factual determination is not only reasonable;

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it is fully supported by the record. The applicable standard is far from being met here, and

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no reasonable jurist would find this debatable or wrong.

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The certificate of appealability is therefore DENIED.

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IT IS SO ORDERED.
DATED: April 24, 2013

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HONORABLE LARRY ALAN BURNS
United States District Judge

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The main difficulty concerned the jurors’ findings against Leon’s co-defendant. But
even then, most jurors reaffirmed their verdicts when the trial judge inquired into them.
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09cv2219