Reyes v. Kane et al

Filing 25

ORDER ADOPTING the REPORT AND RECOMMENDATION 20 in full; Petitioner's petition for writ of habeas corpus is denied; A Certificate of Appealability is denied; This Order concludes the litigation in this matter; The Clerk shall close the file; Signed by Judge Janis L. Sammartino on 7/26/11.(All non-registered users served via U.S. Mail Service)(kaj)

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UNITED STATES DISTRICT COURT

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SOUTHERN DISTRICT OF CALIFORNIA

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CARLOS JAIMEZ REYES,
Petitioner,

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CASE NO. 10-CV-150 JLS (PCL)
ORDER: (1) GRANTING MOTION
FOR EXTENSION OF TIME;
(2) ADOPTING REPORT AND
RECOMMENDATION;
(3) DENYING PETITION FOR
WRIT OF HABEAS CORPUS;
(4) DENYING CERTIFICATE OF
APPEALABILITY

vs.

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KANE, Warden, et al.,

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Respondents.

(ECF Nos. 20, 22)

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Presently before the Court is Magistrate Judge Peter C. Lewis’s report and recommendation
(R&R) advising the Court to deny Petitioner’s petition for writ of habeas corpus. (R&R, ECF No. 20.)
Also before the Court are Petitioner’s objections to the R&R. (Objections, ECF No. 24.) Having
considered the parties’ arguments and the law, the Court OVERRULES Petitioner’s objections,
ADOPTS the R&R, and DENIES Petitioner’s petition.

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BACKGROUND
The Court presumes state court findings to be correct unless the petitioner “rebuts the
presumption of correctness by clear and convincing evidence.” 28 U.S.C. § 2254(e)(1). Magistrate
Judge Lewis’s R&R contains a thorough and accurate recitation of the facts underlying Petitioner’s
state court trial and conviction. (R&R 2–3.) This Order incorporates by reference the facts as set forth
in the R&R.
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Having exhausted his state remedies, Petitioner filed the instant petition, alleging that the trial

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court’s failure to instruct the jury on the lesser included offense of attempted voluntary manslaughter

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violated his Fourteenth Amendment due process rights. (Pet., ECF No. 1.) On August 6, 2010,

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Respondent answered the petition, urging the Court to dismiss the petition and deny a certificate of

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appealability. (ECF No. 16.) Petitioner filed a traverse to Respondent’s answer on August 18, 2010.

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(ECF No. 19.) On February 8, 2011, Magistrate Judge Lewis issued an R&R advising the Court to

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deny the petition. (R&R.) Petitioner objected to the R&R on March 10, 2011. (Objections.)

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LEGAL STANDARD
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Review of the Report of Recommendation

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Federal Rule of Civil Procedure Rule 72(b) and 28 U.S.C. § 636(b)(1) set forth a district

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court’s duties regarding the magistrate judge’s report and recommendation. The district court “shall

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make a de novo determination of those portions of the report . . . to which objection is made,” and

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“may, accept, reject, or modify, in whole or in part, the findings or recommendations made by the

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magistrate judge.” 28 U.S.C. § 636(b)(1)(c); see also United States v. Raddatz, 447 U.S. 667, 673–76

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(1980).

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2.

Cognizable Claim for Relief

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Under federal law, a prisoner seeking relief on claims related to imprisonment may file a

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petition for habeas corpus pursuant to 28 U.S.C. § 2254. A federal court “shall entertain an

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application for a writ of habeas corpus in behalf of a person in custody pursuant to the judgment of

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a State court only on the ground that he is in custody in violation of the Constitution or laws or treaties

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of the United States.” 28 U.S.C. § 2254(a). Federal intervention in state court proceedings is only

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justified when there are errors of federal law. Oxborrow v. Eikenberry, 877 F.2d 1395, 1400 (9th Cir.

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1989). Federal habeas courts are bound by a state’s interpretation of its own laws. Estelle v. McGuire,

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502 U.S. 62, 68 (1991).

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The Antiterrorism and Effective Death Penalty Act (AEDPA) governs federal habeas petitions

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filed after April 24, 1996. Lindh v. Murphy, 521 U.S. 320, 322–23 (1997). The AEDPA establishes

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a “highly deferential standard for evaluating state-court rulings,” requiring “that state-court decisions

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be given the benefit of the doubt.” Woodford v. Viscotti, 537 U.S. 19, 24 (2002). A federal court can
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grant habeas relief only when the result of a claim adjudicated on the merits by a state court “was

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contrary to or involved an unreasonable application of clearly established federal law, as determined

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by the Supreme Court of the United States,” or “was based on an unreasonable determination of the

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facts in light of the evidence presented in the State court proceeding.” 28 U.S.C. § 2254(d). A state

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court’s decision is “contrary to” clearly established federal law if it (1) applies a rule that contradicts

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governing Supreme Court authority, or (2) “confronts a set of facts that are materially

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indistinguishable from” a Supreme Court decision but reaches a different result. Early v. Packer, 537

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U.S. 3, 8 (2002) (internal quotation marks and citation omitted). An “unreasonable” application of

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precedent “must have been more than incorrect or erroneous”; it “must have been ‘objectively

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unreasonable.’” Wiggins v. Smith, 539 U.S. 510, 520–21(2003) (citation omitted).

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ANALYSIS
1.

Motion for Extension of Time

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Magistrate Judge Lewis ordered Petitioner to file written objections to the R&R by February

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24, 2011. (R&R 6.) Petitioner filed a motion for extension of time to object on March 9, 2011 and

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filed his objections the next day. (ECF Nos. 22, 24.) Despite the filings’ untimeliness, the Court

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accepted them nunc pro tunc to the dates received. (ECF Nos. 21, 23.) Good cause appearing,

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Petitioner’s motion for extension of time (ECF No. 22), is GRANTED.

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2.

Summary of the R&R’s Conclusions

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Magistrate Judge Lewis recommends that the Court deny the petition on the ground that neither

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the evidence presented at trial nor the defense’s theory of the case warranted an attempted voluntary

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manslaughter instruction. (R&R 5–6 (citing, inter alia, Duckett v. Godinez, 67 F.3d 734, 745 (9th Cir.

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1995); United States v. Tsinnijinnie, 601 F.2d 1035, 1040 (9th Cir. 1979)).) Specifically, Judge Lewis

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found that Petitioner did not present a heat-of-passion defense at trial, and defense counsel specifically

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rejected a jury instruction regarding heat of passion, stating the defense was not available in light of

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the case’s facts of the case. (R&R 5–6.)

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support the contention that Petitioner acted in the heat of passion because “the trial evidence show[ed]

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that [Petitioner] would had [sic] had ample time between his arguing with the victim and his going

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downstairs to get the gasoline to regain his senses and proper judgment.” (Id.)

Moreover, Judge Lewis concluded the record did not

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Objections to the R&R’s Conclusions

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Petitioner insists that his attempted murder conviction should be reversed because the trial

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court failed to instruct the jury on the lesser included offense of attempted voluntary manslaughter,

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thus violating his Sixth Amendment and Fourteenth Amendment rights.

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Amendment violation was not raised in the petition, it is procedurally barred. See Greenhow v. Sec’y

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of Health & Human Serv., 863 F.2d 633, 638–39 (9th Cir. 1988), overruled on other grounds by

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United States v. Hardesty, 977 F.2d 1347 (9th Cir. 1992). Therefore, the Court will only address the

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Fourteenth Amendment claim.

Because the Sixth

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Petitioner contends that the trial court had a duty to sua sponte instruct the jury on the lesser

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included offense of attempted voluntary manslaughter. (Objections 2.) The Court disagrees. Due

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process does not require that the trial court give a particular instruction unless the instruction is

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supported by the law and the evidence. See Tsinnijinnie, 601 F.2d. at 1040. The record indicates that

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Petitioner did not present a heat-of-passion defense at trial. Defense counsel specifically disavowed

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such a defense, stating it would not be supported by Petitioner’s offered defense—that Petitioner

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suffered from delusions that caused him to act without the intent to kill. (R&R 6.)

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Additionally, an attempted voluntary manslaughter instruction was not supported by the

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evidence. The record shows that Petitioner did not act in the heat of passion because, between the

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argument with his cohabitant and his going to get the gasoline, enough time would have elapsed to

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allow Petitioner to calm down and regain his judgment. Accordingly, the Court finds that the state

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court’s decision was neither contrary to, nor an unreasonable application of, clearly established

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Supreme Court law.

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3.

Certificate of Appealability

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The Court is obliged to determine whether a certificate of appealability should issue in this

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matter. A certificate of appealability is authorized “if the applicant has made a substantial showing

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of the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). A petitioner satisfies this standard by

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demonstrating that “reasonable jurists” could disagree with the Court’s assessment of the

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constitutional claims. Slack v. McDaniel, 529 U.S. 473, 484 (2000). The Court must either (1) grant

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the certificate of appealability indicating which issues satisfy the required showing or (2) state why
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a certificate should not issue. Fed. R. App. P. 22(b).

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Petitioner challenges his conviction of attempted murder on the ground that the trial court’s

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failure to instruct the jury on the lesser included offense of attempted voluntary manslaughter violated

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his Fourteenth Amendment due process rights. No reasonable jurist would disagree with the Court’s

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resolution of Petitioner’s constitutional claims. Evidence in the record supports the trial’s courts

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actions, and this suffices to meet due process requirements. Accordingly, the Court DENIES a

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certificate of appealability.

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CONCLUSION
For the reasons states, the Court ADOPTS the R&R in full. Petitioner’s petition for writ of

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habeas corpus is DENIED. A certificate of appealability is DENIED. This Order concludes the

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litigation in this matter. The Clerk shall close the file.

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IT IS SO ORDERED.

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DATED: July 26, 2011
Honorable Janis L. Sammartino
United States District Judge

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