Cuevas Espinoza v. Cate

Filing 47

ORDER: The Report and Recommendation (Doc. 40 ) is adopted, in part. The Petition for Writ of Habeas Corpus (Doc. 1 ) is denied. A certificate of appealability is granted as to claim three. Signed by Judge William Q. Hayes on 9/10/2013. (All non-registered users served via U.S. Mail Service.) (mdc)

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UNITED STATES DISTRICT COURT

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SOUTHERN DISTRICT OF CALIFORNIA

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ROGELIO CUEVAS ESPINOZA,

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Petitioner,
vs.
MATTHEW CATE, Secretary of the
California Department of Corrections
and Rehabilitation,

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CASE NO. 10cv397 WQH
(BGS)
ORDER

Respondent.
HAYES, Judge:

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The matter before the Court is the Report and Recommendation (ECF No. 40) of

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United States Magistrate Judge Bernard G. Skomal recommending that the Court deny

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Petitioner Rogelio Cuevas Espinoza’s Petition for Writ of Habeas Corpus (ECF No. 1).

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BACKGROUND FACTS1

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On March 10, 2001, Rosea Barajas held a party at a convention hall in National

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City to celebrate the baptism of her son. (Lodgment 6 at 2). Sandy Barajas, sister of

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Rosea Barajas and wife of Petitioner, is the child’s godmother.

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attended the party but there was conflicting evidence about whether he was expected

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there. Arturo, also known as Pedro Rivera, and his brother, Adan Rivera, were told

Id. “[Petitioner]

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The Court recites the facts according to the factual findings of the California
Court of Appeal, which Petitioner does not dispute. See 28 U.S.C. § 2254(e)(1) (a
28 presumption of correctness attaches to state court determinations of factual issues).
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[that Petitioner] would not attend the party.” Id. at 2-3 (alterations omitted). “[T]here

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were ill feelings between Adan and [Petitioner] due to a fight between the two about a

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year earlier.” Id. at 2.

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Shortly after the Rivera brothers arrived at the party, “a fight erupted inside the

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hall” involving Petitioner, the Rivera brothers and others. Id. The evidence conflicted

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as to whether Petitioner or Adan initiated the fight, but the fight was eventually broken

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up by others. Id. at 2-3. The fight left Petitioner injured. Id. at 3. “[O]ne witness

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described seeing a gash above [Petitioner’s] eye.” Id. “Adan believed he had broken

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[Petitioner’s] nose because he was bleeding profusely.” Id. Barajas told everyone to

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leave the party. Id. Petitioner exited through a back door and the Rivera brothers and

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others left through the hall’s front entrance. Id.

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“Soon thereafter, [Petitioner] approached the Rivera brothers with a semi-

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automatic gun in his hand. Adan ran back towards the hall. [Petitioner] fired into the

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air. There was evidence [that Petitioner] pointed the gun at [Arturo] Rivera, fired at

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[Arturo] Rivera’s feet or lower body, fired at the ground, fired toward the crowd of

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people outside the hall and fired toward [Arturo] Rivera as he fled. Some people

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struggled with [Petitioner] for the gun.” Id. A neighbor heard a man yell, “I’m going

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to kill you, motherfucker,” and saw the man “chasing [Arturo] Rivera and shooting at

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him, while [Arturo] Rivera crouched behind a truck.” Id. Arturo Rivera was shot in

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the right eye, which he lost as a result. Id. “There was not stippling or burning around

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the entrance wound, indicating the bullet was fired from a distance of more than three

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or four feet.” Id. Eight cartridge casings and a bullet fragment were recovered. Id.

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Based on the distribution of the cartridge casings, it was determined that all the bullets

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had been fired from the same gun by a gunman who had been moving while firing the

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gun. Id. “A number of people from the party went to the police station to be

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interviewed. [Petitioner’s] wife told the group, ‘nobody rats, nothing will happen.’ The

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interviews were taped.” Id.

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Petitioner fled to Mexico. Id. at 4.
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In 2005, San Diego police officers stopped a car with expired registration tags

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that was driven by Petitioner. Id. “[Petitioner] was very nervous, and he provided the

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officers with a driver’s licence in the name of Victor Gallego and said the car belonged

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to a female friend.” Id. Suspecting the driver’s license was false, the police conducted

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a records check. Id. “As soon as [Petitioner] heard he was going to be arrested, he

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knocked one of the officers to the ground and fled across a busy street. He was arrested

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nearby in a culvert.” Id.
PROCEDURAL HISTORY

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I.

State Proceedings

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In March of 2006, roughly five years after the shooting, Petitioner was tried by

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a San Diego Superior Court jury. During the State’s case, the prosecutor examined

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witnesses on their statements to the police during interviews conducted shortly after the

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shooting. The prosecutor sought to play excerpts from redacted tapes of the interviews

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as prior inconsistent statements, past recollections recorded, or nonhearsay statements.

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(Lodgment 3 at 5). Defense counsel objected to the use of the statements. Id. at 6. The

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trial court instructed defense counsel to raise specific objections to statements on the

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tapes during the course of witnesses’ testimony. Id. Ultimately, the court overruled

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each such objection raised by defense counsel. Id.

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Petitioner’s case consisted entirely of his own testimony. The California Court
of Appeal summarized Petitioner’s version of the events as follows:
[Petitioner] testified Barajas invited him to the party because his
wife was going to be the child’s godmother. He arrived early at the party
because his wife said they needed help, but before contacting his wife, he
had something to eat at the hall. About 20 to 40 minutes later, he started
looking for his wife. He did not find her inside the hall, and he was about
to look outside when the Rivera brothers and others arrived. [Petitioner]
indicated to Adan that he wanted to go outside. Adan, without warning,
punched [Petitioner]. [Petitioner] defended himself.
After the fight ended, [Petitioner] went out the back door of the hall.
He had been badly beaten and was afraid and confused. His uncle told
him the Rivera brothers wanted to kill him, handed him a gun and showed
him how to use it. As [Petitioner] walked toward his car, the Rivera
brothers and other people confronted him. He fired the gun into the
ground and into the air to keep them away. He was surrounded by people
who were trying to get the gun from him, and he believed they would
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harm him if they got the gun. During the struggle, the group moved him
into the street; he stumbled but did not fall as they went over the curb. He
fired the gun until it would fire no more. He also testified the gun fired
because people were ‘yanking’ at his hand. Someone yelled ‘Policia’ and
everybody dispersed. [Petitioner] ran to his car and drove home. He did
not turn himself in because he was afraid he would be imprisoned even
though he was innocent.
(Lodgment 6 at 4-5; see also Lodgment 2, volume 5 at 675-765.).
While the tapes of the police interviews were being played to the jury, the court

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reporter did not report the audio.

The trial court later explained that “it was not

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necessary [to report the audio of the tapes] since the prosecutor had prepared

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transcripts.” (Lodgment 3 at 13). During jury deliberations, the jury requested the

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transcripts of the tapes. The court noted that the transcripts of the tapes had not been

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admitted into evidence, and suggested that the court reporter read the transcripts to the

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jury. Defense counsel objected to playing the tapes or reading the transcripts to the

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jury, as neither the tapes nor the transcripts had been admitted into evidence. The court

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decided to send the tapes into the jury room with a recorder for the jurors to use as a

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listening device.

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On March 3, 2006, the jury found Petitioner guilty of mayhem2 and assault with

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a semi-automatic firearm,3 and deadlocked on a count of attempted murder. The court

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declared a mistrial on the attempted murder count. On September 18, 2006, the court

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sentenced Petitioner to a prison term of 29 years to life.4

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On April 13, 2007, Petitioner directly appealed his convictions to the California

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Court of Appeal on the following grounds: (1) the trial court erroneously admitted audio

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tape recordings of the police interviews as prior inconsistent statements; (2) the trial

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court improperly allowed the jury to listen to the tapes during deliberation; and (3) the

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trial court should have granted Petitioner’s motion for a new trial. (Lodgment 3 at 18,

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Cal. Pen. Code §§ 203; 12022.53, subd. (d).

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Cal. Pen. Code §§ 245, subd. (b); 12022.5, subd. (a)(1), 12022.7, subd. (a).

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Petitioner was sentenced to a four-year term for mayhem and a 25-year to life
term for personally discharging a firearm and causing great bodily injury during the
mayhem (Cal. Pen. Code § 12022.53, subd. (d)).
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38, 50). Petitioner’s reply brief concluded: “The entire judgment should be reversed

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on multiple grounds of federal constitutional due process and jury error in considering

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extraneous evidence not admitted by the court, with respect to police interviews of

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victims.” (Lodgment 5 at 24.). On March 12, 2008, the California Court of Appeal

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unanimously affirmed the rulings of the trial court in a written order. (Lodgment 6).

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On April 20, 2008, Petitioner filed a Petition for Review with the California

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Supreme Court. Petitioner sought review of the California Court of Appeal’s decision

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denying his direct appeal on the grounds that: (1) the “case presents a unique

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opportunity ... to delineate the boundaries of cases in which use of batches of tapes can

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deny federal constitutional due process”; and (2) “[e]xtraneous evidence heard by even

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one juror denies a defendant his Sixth Amendment right to an unbiased jury,” and

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therefore, “the treatment of even accidental slips in what is given the jury [i]s federal

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constitutional error.”5 (Lodgment 7 at 24, 31–32). On June 25, 2008, the California

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Supreme Court summarily denied the Petition for Review. (Lodgment 8).

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On August 31, 2009, Petitioner filed a habeas corpus petition in the California

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Supreme Court, asserting several claims for ineffective assistance of counsel and a

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claim alleging that the prosecution withheld evidence in violation of Brady v. Maryland,

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373 U.S. 83 (1963).6 (Lodgment 9). Petitioner subsequently filed a Motion for

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Discovery and Interrogatories, dated October 23, 2009, to accompany his habeas

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petition filed in the California Supreme Court, in which he sought, inter alia, evidence

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to substantiate his ineffective assistance of counsel claims.7 (ECF No. 1-1 at 27-48).

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On February 10, 2010, the California Supreme Court summarily denied the petition, and

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did not otherwise rule on the Motion for Discovery and Interrogatories. (Lodgment 10).

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Petitioner asserts both of these grounds for relief in his federal Petition for Writ
of Habeas Corpus as claims 1-2. See ECF No. 1 at 6-7.
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grounds for
in
27 HabeasPetitioner asserts theseSee Lodgmentrelief3-4,his federal Petition for Writ of
Corpus as claims 3-6.
9 at
ECF No. 1 at 8-9.
Petitioner incorporated by reference pro se discovery motions that he had
previously filed in San Diego Superior Court. (ECF No. 1-2, at 2, 6).
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II.

Federal Proceedings

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On February 18, 2010, Petitioner filed the Petition for Writ of Habeas Corpus

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(“Petition”) in this Court pursuant to 28 U.S.C. § 2254. (ECF No. 1). In his nearly 600

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pages of briefing and exhibits, Petitioner raises six claims for relief – two claims

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alleging deprivation of Petitioner’s right to due process related to the trial court’s

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decision to play and permit the jury to review the police interview tapes; three claims

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alleging ineffective assistance of counsel related to defense counsel’s alleged failure to

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investigate witnesses to the shooting; and one claim alleging that state prosecutors

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improperly withheld a list of witnesses favorable to the defense in violation of Brady

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v. Maryland.

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On May 28, 2010, Respondent filed an Answer to the Petition, contending that

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Petitioner exhausted his state court remedies and that the Court should deny the Petition

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on its merits. (ECF No. 16). Respondent contended that claims one and two of the

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Petition should be denied because they are not cognizable on habeas review, and,

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alternatively, that the state court’s decision to deny claims one and two was not contrary

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to, or an unreasonable application of, controlling Supreme Court precedent.

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On September 7, 2010, Petitioner filed a motion for stay and abeyance pursuant

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to Rhines v. Weber, 544 U.S. 269 (2005). (ECF No. 21). Petitioner requested that the

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Court stay the Petition in abeyance to permit him to fully exhaust claims one and two

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before the California Supreme Court.

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On September 15, 2011, the Court adopted a Report and Recommendation issued

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by the Magistrate Judge, and denied Petitioner’s motion for stay and abeyance. (ECF

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Nos. 27, 28). The Court found that claims one and two of the Petition are cognizable

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federal claims that had been exhausted before the Petition was filed.

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On December 29, 2011, Petitioner filed a Traverse. (ECF No. 33). On January

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10, 2012, Petitioner filed a Motion to Amend Traverse, along with a proposed Amended

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Traverse. (ECF Nos. 35, 35-1). On April 18, 2012, the Magistrate Judge granted

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Petitioner’s Motion to Amend Traverse pursuant to Federal Rule of Civil Procedure
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15(a)(2), and stated that the Court would consider the Amended Traverse in its entirety.

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(ECF No. 39).

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On September 4, 2012, the Magistrate Judge issued a Report and

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Recommendation, recommending that the Court deny the Petition in its entirety. (ECF

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No. 40).

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On November 26, 2012, Petitioner filed Objections to the Report and

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Recommendation. (ECF No. 43). On December 17, 2012, Respondent filed a response

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to Petitioner’s Objections. (ECF No. 45). On February 6, 2013, Petitioner filed a reply

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pursuant to Local Rule 7.1(e).

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STANDARDS OF REVIEW

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Review of the Report and Recommendation pursuant to 28 U.S.C. § 636(b)(1)

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The duties of the district court in connection with a Report and Recommendation

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of a Magistrate Judge are set forth in Federal Rule of Civil Procedure 72(b) and 28

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U.S.C. § 636(b)(1). When a party objects to a Report and Recommendation, “[a] judge

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of the [district] court shall make a de novo determination of those portions of the

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[Report and Recommendation] to which objection is made.” 28 U.S.C. § 636(b)(1).

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A district court may “accept, reject, or modify, in whole or in part, the findings or

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recommendations made by the magistrate judge.” Fed. R. Civ. P. 72(b); see also 28

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U.S.C. § 636(b)(1).

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Review of the Petition pursuant to 28 U.S.C. § 2254(d)

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In this case, review of the Petition is governed by the framework of the

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Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”) because the Petition

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was filed in 2010, well after the Act’s effective date. See Woodford v. Garceau, 538

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U.S. 202, 210 (2003). As amended by AEDPA, 28 U.S.C. § 2254(d) states:

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An application for a writ of habeas corpus on behalf of a person in custody
pursuant to the judgment of a State court shall not be granted with respect
to any claim that was adjudicated on the merits in State court proceedings
unless the adjudication of the claim—
(1) resulted in a decision that was contrary to, or involved an unreasonable
application of, clearly established Federal law, as determined by the
Supreme Court of the United States; or
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(2) resulted in a decision that was based on an unreasonable determination
of the facts in light of the evidence presented in the State court proceeding.
28 U.S.C. § 2254(d).

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“Although AEDPA’s scheme is complex, and its provisions have been subjected

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to multiple, sometimes conflicting, interpretations, this much is clear: deference to state

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court determinations must follow an adjudication on the merits.” Lambert v. Blodgett,

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393 F.3d 943, 965 (9th Cir. 2004). “When a federal claim has been presented to a state

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court and the state court has denied relief, it may be presumed that the state court

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adjudicated the claim on the merits in the absence of any indication or state-law

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procedural principles to the contrary.” Harrington v. Richter, — U.S. —, 131 S. Ct.

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770, 784-85 (2011); see also Johnson v. Williams, 133 S. Ct. 1088, 1097 (2013)

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(holding that when a state court rejects some claims on the merits but does not expressly

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address a federal claim, there is a presumption subject to rebuttal that the state court

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also adjudicated the federal claim on the merits). “The presumption may be overcome

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when there is reason to think some other explanation for the state court’s decision is

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more likely.” Id. at 785 (citing Ylst v. Nunnemaker, 501 U.S. 797, 803 (1991)).

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Under 28 U.S.C. § 2254(d)(1), a state court decision is “contrary to” clearly

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established precedent if it “applies a rule that contradicts the governing law set forth in

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our cases” or if it “confronts a set of facts that are materially indistinguishable from a

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decision of this Court and nevertheless arrives at a result different from our precedent.”

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Early v. Packer, 537 U.S. 3, 8 (2002) (per curiam) (quotation omitted). A decision is

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an “unreasonable” application if the state court “correctly identifies the governing legal

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rule but applies it unreasonably to the facts of a particular prisoner’s case.” Williams,

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529 U.S. at 407-08. “[A] federal habeas court may not issue the writ simply because the

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court concludes in its independent judgment that the relevant state-court decision

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applied clearly established federal law erroneously or incorrectly.... Rather, that

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application must be objectively unreasonable.” Lockyer v. Andrade, 538 U.S. 63, 75-76

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(2003) (internal quotation marks and citations omitted).
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Under 28 U.S.C. § 2254(d)(2), “[f]actual determinations by state courts are

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presumed correct absent clear and convincing evidence to the contrary, § 2254(e)(1),

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and a decision adjudicated on the merits in a state court and 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.” Miller-El v. Cockrell,

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537 U.S. 322, 340 (2003). “The question under AEDPA is not whether a federal court

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believes the state court’s determination was incorrect but whether that determination

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was unreasonable -- a substantially higher threshold.” Schriro v. Landrigan, 550 U.S.

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465, 473 (2007).
DISCUSSION

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I.

Claims One and Two: Deprivation of Due Process8

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In claim one, Petitioner contends that the trial court “denied Petitioner due

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process and a fair trial [by] overruling defense objections to the prosecutor playing

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entire tapes (with accompanying transcripts) of all the recorded police interviews of the

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witnesses, [and admitting the tapes] wholesale over valid defense objections of

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foundation and evidence code section 352.” (Lodgment 7 at 16; ECF No. 1 at 17). In

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claim two, Petitioner contends that the trial court “deliberately g[ave] the jury tapes not

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in evidence during deliberation, constitut[ing] reversable error of receipt of extraneous

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matters under federal constitutional law.” (Lodgment 7 at 25; ECF No. 1 at 26).

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Petitioner contends that “[t]here would have been no conviction without all these

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compounded errors, and the case presents grave issues of a denial of basic fairness and

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due process....” (Lodgment 7 at 33; ECF No. 1 at 34).

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The California Supreme Court summarily denied Petitioner’s Petition for Review,

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which is presumed to be an adjudication “on the merits” within the meaning of AEDPA.

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See Harrington, 131 S. Ct. at 784-85. This Court must “look through” the California

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Supreme Court’s summary denial and review the state court’s last reasoned decision on

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In support of claims one and two of the Petition, Petitioner incorporates by
reference pages 1-32 of his petition for review to the California Supreme Court.
(Lodgment 7 at 1-32; ECF No. 1-11 at 2-34).
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claims one and two, which is the California Court of Appeal’s written decision

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affirming Petitioner’s conviction on direct appeal. See id.; Ylst, 501 U.S. at 803

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(“Where there has been one reasoned state judgment rejecting a federal claim, later

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unexplained orders upholding that judgment or rejecting the same claim rest upon the

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same ground.”).

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A.

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Petitioner does not rebut the following factual summary of the Court of Appeal

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Decision of the California Court of Appeal

regarding the trial court’s evidentiary rulings:
The trial occurred about five years after the shooting and by that
time many of the witnesses could not remember all the details of the
events or testified to versions that differed from their taped interviews with
the police. At trial, the prosecutor examined the witnesses on the
statements they made to the police and then sought admission of excerpts
from the taped interviews of [Arturo] Rivera’s sister Norma Soltero, his
cousin Evaelena Soltero, his aunt Joaquina Soltero, Adan, and Barajas on
the basis the excerpts were admissible as prior inconsistent statements
under Evidence Code section 1235, as past recollection recorded under
Evidence Code section 1237, or as nonhearsay statements. Although the
defense had copies of the entire interviews for a significant period, it
received copies of the final redacted interviews shortly before the hearing.
The defense filed written objections to the use of the tapes. At the
hearing, defense counsel initially objected to playing the tapes rather than
reading the interview questions and answers. Defense counsel generally
conceded that the taped interviews included statements admissible under
Evidence Code sections 1235 and 1237, except for Barajas’ taped
statements, which defense counsel argued were not inconsistent with her
trial testimony. Defense counsel, however, requested the court determine
admissibility on a line-by-line basis. The court agreed, but stated it would
be more efficient if defense counsel raised specific objections rather than
going through line-by-line of each redacted tape on the record. Defense
counsel told the court he needed an additional 20 minutes to examine the
excerpts and the court granted his request.
Following a recess, defense counsel objected to some of the
statements in the taped excerpts. The court ruled on the individual
statements, finding most of the statements were prior inconsistent
statements, past recollection recorded or were not hearsay because they
were not being admitted for the truth of the matter asserted.
(Lodgment 6 at 5-6 (footnote omitted); see also Lodgment 2, volume 5 at 582-603, 626635, 641-642).
The Court of Appeal rejected claim one on the grounds that (1) the trial court
considered and ruled individually on each specific objection to statements in the
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excerpts; (2) the tapes did not contain all the police interviews but were limited to

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selected statements; (3) the court did not impose an improper burden on defense counsel

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in requiring specific objections to particular statements;9 (4) the trial court did not err

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in admitting any statements under California Evidence Code section 1235, as each

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challenged statement either constituted a prior inconsistent statement or was not being

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offered for the truth of the matter asserted; and (5) the trial court properly instructed the

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jury regarding the statements on the tapes, and any error with the instructions was

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harmless. (Lodgment 6 at 5-10).

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Petitioner does not rebut the following summary of the Court of Appeal regarding

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the trial court’s decision to permit the jury to play the police interview tapes during

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deliberations:

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Tapes of the redacted interviews were played for the jury but the
court reporter did not report them. During deliberations, the jury
requested transcripts of the taped interviews. The court noted the
interview transcriptions had not been admitted into evidence and
suggested the court reporter read the transcripts to the jury. Defense
counsel objected to playing the tapes for the jury or reading the transcripts
because neither had been admitted into evidence. The court responded
that the contents of the interviews were evidence, which could have been
recorded by the court reporter, but it had been agreed it was not necessary
for the reporter to transcribe the tapes since the prosecutor had prepared
transcripts. Ultimately, when it became clear that the court would allow
the reporter to read the transcripts to the jury, defense counsel requested
that the tapes be played instead because the ‘tape is the best evidence’ and
the court agreed to this request. Defense counsel did not specifically
object to the tapes being sent to the jury room with a recorder rather than
having the court reporter play the tapes for the jury. During a subsequent
motion for a new trial, defense counsel indicated he had strategic reasons
for requesting that the jury hear the tapes during deliberations.
(Lodgment No. 6, p. 13.).
Noting that the tapes “were not formally offered and admitted into evidence” (Id.
at 14), the Court of Appeal found that “the court did err by sending the tapes into the
jury room with a recorder, because it presented a danger the jury would give undue

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The Court of Appeal rejected Petitioner’s contention that the court allowed the
defense insufficient time to review the interview excerpts to formulate specific
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objections because “the record reflects that the court gave defense counsel all the time
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would not have provided additional time had it been requested.” (Lodgment 6 at 7 n.3).
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emphasis to the tapes.” Id. Nevertheless, the Court of Appeal denied Petitioner’s claim

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on the grounds that (1) Petitioner “waived review of the issue ... by requesting that the

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jury hear the tapes and not objecting to the court sending the tapes to the jury room

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without a tape recorder”; and (2) “overwhelming evidence support[ed] the aggravated

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assault and mayhem convictions, [and] there is no reasonable probability [Petitioner]

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would have received a more favorable result had the jury not been provided with the

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tapes during deliberations.” Id.

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B.

Recommendation of the Magistrate Judge

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With respect to claim one, the Magistrate Judge recommended that the Court

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deny relief on the grounds that: (1) the California Court of Appeal’s decision was based

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on Petitioner’s failure to object to certain statements, constituting a procedural default

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that is an independent and adequate basis for this Court to deny relief; and (2) the

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United States Supreme Court has never ruled that the admission of irrelevant or overtly

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prejudicial evidence by a state trial court is sufficient to warrant issuance of a writ.

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(ECF No. 40 at 13-14 (citing, inter alia, Coleman, 501 U.S. at 729; Holley v.

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Yarborough, 568 F.3d 1091, 1101 (9th Cir. 2009))). The Magistrate Judge

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recommended that the Court deny claim two on the basis that Petitioner has failed to

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demonstrate that the jury’s review of the police interview tapes during deliberations had

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a “substantial and injurious” effect on the outcome of the trial. Id. at 18 (citing Brecht

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v. Abrahamson, 507 U.S. 619, 623 (1993)).

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Petitioner objects to the Magistrate Judge’s recommendations on the following

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grounds: (1) the Magistrate Judge failed to consider whether Petitioner is entitled to

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relief from the state trial court’s “introduction of extraneous information [to the jury]

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during deliberations;” (2) the Magistrate Judge and the California Court of Appeal “has

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misconstrued the objection of the tape being played at all and called it harmless error

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that petitioner waived appellate review because it is said by the Court that defense

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counsel did not object which in fact defense counsel did object numerous times

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throughout the proceedings;” and (3) the Magistrate Judge failed to consider
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Petitioner’s argument that the state trial court used the incorrect jury instruction,

2

constituting a “structural error.” Id. at 4-8.

3

C.

Analysis

4

“[I]t is not the province of a federal habeas court to reexamine state-court

5

determinations on state-law questions.” Estelle v. McGuire, 502 U.S. 62, 67-68 (1991).

6

In conducting habeas review, a federal court is limited to deciding whether a conviction

7

violated the Constitution, laws, or treaties of the United States. Id. The court’s habeas

8

powers do not allow for the vacatur of a conviction “based on a belief that the trial

9

judge incorrectly interpreted the California Evidence Code in ruling” on the

10

admissibility of evidence. Id. at 72; see also Randolph v. California, 380 F.3d 1133,

11

1147 (9th Cir. 2004) (“A violation of state evidence rules is insufficient to constitute

12

a due process violation.”); Jammal v. Van de Kamp, 926 F.2d 918, 919 (9th Cir. 1991)

13

(“On federal habeas we may only consider whether the petitioner’s conviction violated

14

constitutional norms”).

15

In Jammal, where the petitioner on federal habeas asserted that certain evidence

16

was improperly admitted against him at his state trial in violation of his right to a fair

17

trial, the Ninth Circuit elaborated on the interplay between state law and federal habeas

18

corpus:

19
20
21
22
23
24

[W]e note that failure to comply with state rules of evidence is neither a
necessary nor sufficient basis for granting habeas relief. While adherence
to state evidentiary rules suggests that the trial was conducted in a
procedurally fair manner, it is certainly possible to have a fair trial even
when state standards are violated; conversely, state procedural and
evidentiary rules may countenance processes that do not comport with
fundamental fairness. The issue for us, always, is whether the state
proceedings satisfied due process; the presence or absence of a state law
violation is largely beside the point.
Jammal, 926 F.2d at 919-20.

25

In this case, the Court will decline to adopt the recommendation of the Magistrate

26

Judge to deny claim one on the procedural basis that Petitioner failed to object to certain

27

evidence at trial. Respondent failed to raise such a procedural default defense in his

28

answer to the Petition, resulting in its waiver. See Morrison v. Mahoney, 399 F.3d
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1042, 1046 (9th Cir. 2005) (“Procedural default, like the statute of limitations, is an

2

affirmative defense.... We therefore ... hold that the defense of procedural default should

3

be raised in the first responsive pleading in order to avoid waiver.”). However, the

4

Magistrate Judge further recommended denying relief on the substantive merit of the

5

issue raised in claim one.

6

The Magistrate Judge correctly stated: “Although the [Supreme] Court has been

7

clear that a writ should be issued when constitutional errors have rendered the trial

8

fundamentally unfair, see Williams, 529 U.S. at 375, it has not yet made a clear ruling

9

that admission of irrelevant or overtly prejudicial evidence constitutes a due process

10

violation sufficient to warrant issuance of the writ.” Holley v. Yarborough, 568 F.3d

11

1091, 1101 (9th Cir. 2009). Because no such clearly established federal law exists, the

12

Court cannot conclude that the California Court of Appeal’s decision to deny Petitioner

13

relief from the trial court’s evidentiary rulings, even if incorrect under California law,

14

was “contrary to, or involved an unreasonable application of, clearly established Federal

15

law.” 28 U.S.C. 2254(d)(1); see also Estelle, 502 U.S. at 67 (rejecting the conclusion

16

that evidence was “incorrectly admitted ... pursuant to California law” as a basis for

17

federal habeas corpus relief); Holley, 568 F.3d at 1101. The Court adopts the

18

recommendation of the Magistrate Judge to deny claim one on this basis.

19

With respect to claim two, the Magistrate Judge correctly stated that, under

20

clearly established federal law, a federal habeas petitioner is not entitled to relief from

21

a trial error unless the error “had substantial and injurious effect or influence in

22

determining the jury’s verdict.” Brecht v. Abrahamson, 507 U.S. 619, 637 (1993)

23

(quoting Kotteakos v. United States, 328 U.S. 750, 776 (1946)). The Ninth Circuit has

24

interpreted “substantial or injurious effect” as meaning the petitioner would have

25

received a more favorable result absent the error. Bains v. Cambra, 204 F.3d 964, 971

26

n. 2 (9th Cir. 2000). The California Court of Appeal recognized that “the [trial] court

27

did err [pursuant to the California Evidence Code] by sending the tapes into the jury

28

room with a recorder, because it presented a danger the jury would give undue emphasis
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to the tapes.” (Lodgment 6 at 14). However, in light of Petitioner’s admission that he

2

fired the gun, and the eye-witness testimony elicited against Petitioner at trial, the Court

3

finds that Petitioner has failed to adequately demonstrate that the trial court’s decision

4

to permit the jury to review the tapes during deliberations “had substantial and injurious

5

effect or influence in determining the jury’s verdict” on the mayhem and assault

6

charges. Brecht, 507 U.S. at 637. Accordingly, the Court of Appeal’s decision to deny

7

claim two was neither contrary to, nor an unreasonable application of, clearly

8

established federal law. Id. at 14-15. The Court adopts the recommendation of the

9

Magistrate Judge to deny claim two.

10

Finally, Petitioner objects to the trial court’s jury instructions. Petitioner contends

11

the trial court’s instructions to the jury regarding the interview tapes violated his

12

Fourteenth Amendment due process rights. Before playing the tapes, the trial court

13

instructed the jury:

18

[T]he People are proposing to play some tapes. These tapes contain
statements of witnesses who have testified here before you. They’re being
played for your consideration to determine whether or not these previous
statements that were recorded were consistent or inconsistent with their
testimony before you. Some of the portions have been redacted because
the Court felt that they were not relevant. And you may consider[] this
tape, this information you’re going to hear for the purposes of testing the
credibility of the witnesses as well as for purposes of determining whether
or not what they said on the former occasion was in fact true.

19

(Lod. 2, 5 RT 644-45). Before deliberations began, the trial court instructed the jury

20

in part:

14
15
16
17

21
22

During the trial, certain evidence was admitted for a limited purpose. You
may consider that evidence only for that purpose and for no other.
(CALCRIM No. 303.)

24

You have heard evidence of statements that a witness made before the
trial. If you decide that the witness made those statements, you may use
those statements in two ways:

25

1. To evaluate whether the witness’s testimony in court is believable;

26

AND

27

2. As evidence that the information in those earlier statements is true.
(CALCRIM No. 3.18.)

23

28

“Federal habeas courts ... do not grant relief, as might a state appellate court,
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1

simply because the instruction may have been deficient in comparison to the CALJIC

2

model. The only question for us is ‘whether the ailing instruction by itself so infected

3

the entire trial that the resulting conviction violates due process.’” Estelle, 502 U.S. at

4

62 (quoting Cupp v. Naughten, 414 U.S. 141, 147 (1973)); see also Donnelly v.

5

DeChristoforo, 416 U.S. 637, 643 (1974) (“[I]t must be established not merely that the

6

instruction is undesirable, erroneous, or even “universally condemned, but that it

7

violated some [constitutional right]”). “It is well established that the instruction ‘may

8

not be judged in artificial isolation,’ but must be considered in the context of the

9

instructions as a whole and the trial record.” Estelle, 502 U.S. at 62 (quoting Cupp, 414

10

U.S. at 147). The Court has reviewed the trial court’s instructions to the jury in the

11

context of the entire record. The Court does not find that the instructions “so infected

12

the entire trial that the resulting conviction violates due process.” Id. Accordingly, the

13

Court of Appeal’s decision to deny relief from the trial court’s jury instructions was

14

neither contrary to, nor an unreasonable application of, clearly established federal law.

15

II.

Claims Three, Four and Six: Ineffective Assistance of Counsel10

16

In claim three, Petitioner contends that his Sixth Amendment right to effective

17

assistance of counsel was violated when his trial counsel failed to investigate witnesses

18

to the shooting and failed to call those witnesses to testify. (ECF No. 1-11 at 35).

19

Petitioner asserts that his wife, Sandy Barajas, gave Petitioner’s defense counsel a list

20

of percipient witnesses. Petitioner contends that his counsel should have called these

21

witnesses to testify on his behalf. Petitioner asserts that Miguel R. Rubio and Silvia

22

Escamilla each informed Petitioner’s defense counsel and/or defense counsel’s

23

investigator, prior to Petitioner’s trial, that they were willing to testify to witnessing

24

someone other than Petitioner shoot Arturo Rivera. In claim six, Petitioner contends

25

that his counsel was ineffective for failing to consult with and utilize a ballistics expert

26

at trial. In claim four, Petitioner contends that his appellate counsel was ineffective for

27
10

28

In support of claims three, four and six of the Petition, Petitioner incorporates
by reference pages 33-52 and 59-67 of his habeas corpus petition before the California
Supreme Court. (Lodgment 7 at 33-52, 59-67; ECF No. 1-11 at 35-54, 61-69).
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not raising an ineffective assistance of counsel claim against his trial counsel on the

2

same grounds raised in claims three and six of the Petition.

3

Respondent contends that Petitioner has failed to meet his burden of

4

demonstrating ineffective assistance of counsel under the “doubly deferential” standard

5

applied on collateral review. With respect to claim three, Respondent asserts that “it

6

appears ... defense counsel was aware of the alleged eyewitnesses and made a strategic

7

decision not to call them to testify on Petitioner’s behalf.” (ECF No. 16-1 at 22).

8

Respondent contends that “[d]efense counsel’s alleged failure to interview any of the

9

witnesses noted by Petitioner could not have prejudiced the defense in this case”

10

because “[t]he alleged eyewitnesses’ testimony would have been contradicted by

11

Petitioner’s own testimony. No rational jury could have concluded Petitioner did not

12

possess a gun and fire it repeatedly, given the overwhelming evidence, including

13

Petitioner’s testimony, which was presented in this case.” Id. With respect to claim six,

14

Respondent contends that Petitioner has failed to identify any specific ballistic expert

15

testimony that would likely have resulted in a more favorable outcome at trial. With

16

respect to claim four, Respondent contends that Petitioner’s appellate counsel was not

17

ineffective for failing to raise claims three and six on direct appeal because these

18

underlying claims have no merit.

19

Petitioner raised his ineffective assistance of counsel claims for the first time in

20

his habeas petition filed before the California Supreme Court. (Lodgment 9). The

21

California Supreme Court summarily denied the petition (Lodgment 10), which is

22

presumed to be an adjudication “on the merits” within the meaning of AEDPA. See

23

Harrington, 131 S. Ct. at 784-85. Because no reasoned state court decision exists as

24

to claims three, four, or six, the Court must independently review the state court record.

25
26

A.

State Court Record
1.

Trial Testimony

27

During the prosecution’s case, Ramon Rubio Rodriguez testified that he

28

witnessed Petitioner pointing a gun at Arturo Rivera (Lodgment 2, volume 2 at 109- 17 -

10cv397 WQH (BGS)

1

112), while Norma Alicia Soltero, sister of Arturo Rivera, testified that she witnessed

2

Petitioner shooting a gun into the air and at Arturo Rivera’s feet. Id. at 255-56.

3

Evaelena Gallegos, cousin of Arturo Rivera, testified that she witnessed the events but

4

did not see Petitioner with a gun; the prosecutor impeached Gallegos with her prior

5

statement to police that she witnessed Petitioner holding a small silver or chrome

6

handgun, walking towards Arturo Rivera. Id. at 394-95. Olivia Addison, who lived

7

across the street from the convention hall at the time of the shooting, testified that she

8

heard roughly seven gunshots, and that Petitioner was the only individual she witnessed

9

holding a gun. (Lodgment 2, volume 3 at 448).

10

Petitioner was the only witness called to testify by the defense. On direct

11

examination, Petitioner testified that he was beaten by the Rivera brothers inside the

12

convention hall, eventually left through the back exit, was given a gun by his godfather

13

to protect himself, and attempted to get in his car to drive home. Petitioner provided

14

the following answers to the following questions regarding the events that followed:

15
16
17
18
19

Q:
A:

Where were you going to go when you got to your car?
I was going to go home.

Q:
A:

So what happened?
I got to the door. Boom, they come out and they say (Spanish
word), which means, you know, ‘that fucker’s there.’ And they
immediately surrounded me.

...

20

Q:
A:

...[H]ow many people were out in front at that point?
There was a group of people. Probably like ten.

21

Q:
A:

All right. Did they confront ya?
The one who confront[ed] me was Adan, Arturo and them guys.

23

Q:
A:

All right. Did they grab ya?
Yes, they did.

24

Q:
A:

Describe what happened.
Okay. As I approached the door, they came out and they came
towards me. And I say – I say, you know, ‘stay back.’ They grab
me by my shirt. They are just yanking me all over the place. I had
the gun in my hand and I pulled back I said, ‘Look, man, I’ve got
a gun. Let me alone.’ As I pulled the gun, pop, I shot one [bullet]
into the floor.

Q:
A:

Why did you do that?
So I could scare them off.

22

25
26
27
28

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2

Q:
A:

Was anyone else holding on to you?
Yeah, they were holding me. They were yanking me all over the
place. As they came towards me – as they were there punching me
– they were punching me, hitting me. I just – I pulled the gun – I
put the gun up in the air. I said to them like two or three times,
‘Come on, guys, leave me alone.’ Pop. ‘Come on. I’ve got a gun.
I don’t want to hurt nobody. You guys want to beat me up. Leave
me alone.’ But they continue struggles. All those people were
grabbing me, they were pulling me. I remember one in the floor to
scare them. It was two to four shots in the air – pop, pop, pop – so
I can scare them off....

Q:
A:

Was a struggle going on?
Yeah, struggle going on in the circles. We were going to the left,
going to the right as the gun in the air’s going off. Next thing you
know, we were by the sidewalk. I lost my balance. I lost my
balance. And I caught them pulling my arm down. That’s when the
rest of the shots – I was like pop, pop, pop. There were all kinds of,
like, shots fired – maybe three, four – while I went over to the
sidewalk.

3
4
5
6
7
8
9
10
11
12

...

13

Q:
A:

Did you ever intentionally shoot anybody?
No, I never aimed my gun at nobody. I never shot at nobody.

14

Q:
A:

Did you ever intend to kill anybody?
No.

Q:
A:

All right. Now, about how many shots were fired, if you know?
Like I said, it was one in the ground, maybe, like three or four in the
air while all that struggling was going on, and then, like another
three, four, maybe, when I went over to the street when I kind of
lost my balance. I kind of went back – oh excuse me – I kind of
went back like – pow. They were pulling my hand down. Pow. I
remember, like, turn – they were, like, turned me – pow – another
one.

Q:
A:

Now, did you ever chase anybody with a gun?
No, I didn’t. I never chased nobody.

22

Q:
A:

Did you ever chase anybody with a gun pointed at them?
No, I never chased nobody pointing a gun at nobody.

23

Q:
A:

Now, at some point did the fight stop?
Well, actually, when the – when the – when the last shot was going
off, somebody – somebody said ‘the police’ or something like that.
It was a woman’s voice. I guess everybody scattered, started
running.... I went ... to my car and left.

Q:
A:

Where did you go?
I went straight home.

Q:
A:
...

Where was the gun?
Still had the gun with me when I got home.

15
16
17
18
19
20
21

24
25
26
27
28

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2
3

(Lodgment 2, volume 5 at 708-12).
Petitioner provided the following answers to the following questions on crossexamination:

5

...
Q:
A:

6

Q:

7

A:
...

4

8
9
10
11
12
13
14

[H]ow many bullets were in [the gun] after you left?
I didn’t check that.
[W]hen you got into your car and you went home – ... you had that
gun with ya, right?
Yes.

Q:
A:
...
Q:
A:

Did you shoot that gun until the bullets stopped coming out?
Like I said, the bullets ran out – when we went pow, pow, the
bullets – it just stopped shooting.
To your knowledge, the gun was empty?
I figured it was as soon as it stopped shooting.

Q:
A:

Was [Pedro] on the ground then?
I didn’t see him get hurt.

Q:

Well, what was the last thing you remember when the gun stopped
shooting?
When they said – they mentioned ‘calle policia,’ and they
mentioned it in Spanish. I guess everybody just scattered. I took
off....

A:

15
16

...

17

Id. at 745-46.

18
19

2.

Declarations attached to Petitioner’s habeas petition before
California Supreme Court

20

Sandy Barajas, Escamilla and Rubio submitted written declarations that Petitioner

21

attached to both his habeas petition before the California Supreme Court and his

22

Petition before this Court. In her sworn declaration, Sandy Barajas stated:

23
24
25
26
27
28

[O]n March 10, 2001, I attended the baptismal celebration in K-P
Hall, in the city of National City, California. I contacted the Law Firm of
Jan Ronis & Ronis on numerous times to ask [Petitioner’s] legal counsel
(Jan Ronis) why weren’t any of [Petitioner’s] witnesses being called to
testify. He explained to me that they were going too and also advised me
that I would be called to testify therefore, I could not be present or attend
any of the trial hearings. I was never called or contacted to be subpoena
to the trial nor any of tile witnesses on his behalf. To this day, I have no
knowledge of why any of us were never contacted. I provided the Jan
Ronis Law Firm with several witnesses that were there on that day and
never contacted for their statements. I will provide a list of witnesses
names at the end of this statement. I believe [Petitioner] was unjustly
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2
3
4
5
6
7
8
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sentenced and deprived from his freedom without given the opportunity
to present the []evidence on his behalf....
(ECF No. 1-7 at 7).
In her sworn declaration, Escamilla stated:
I ... attended a baptismal celebration on March 10,2001. I am the
grandmother of the child who was baptized. The baptismal celebration
was held in K-P Hall in the city of National City, California. On March 10,
2001, I witnessed the shooting and struggle for the gun outside of this hall
where the event took place. I was standing in front of the building K-P
Hall front door smoking a cigarette when the Rivera brothers were
walking out with other people. Both Rivera brothers (Adan and Arturo)
and their friends were all yelling, screaming and seem to be mad, excited
and they all had an aggressive attitude. They immediately headed towards
[Petitioner], yelling ‘There he is, get that puto.’ They immediately
surrounded [Petitioner] and began to kick him, punch him and beat him
down to hurt [Petitioner]. [Petitioner] tried to get away from the kicks and
punches of his attackers. I remember [Petitioner] telling the Adan and
Arturo (Rivera brothers) pleading them to stop, that he did not want to
fight and that he ([Petitioner]) had a gun. [Petitioner] continued warn
them about the gun, and one of the brothers said to him that he did not
have the balls to' shoot anyone. They kept kicking him and attacking him.
Then [Petitioner] shot one or two shots into the ground and the brothers
began to struggle and more shots were fired in the air, while someone in
the crowd at the same time was trying to struggle for the weapon. That is
when I believe the shots began to go in all directions. I then remember
hearing someone saying police, and I saw someone else grab the gun
and tried to shoot [Petitioner] as he ran across the street. I believe
from what I witnessed the guy who had the gun was the one who shot
Arturo and not [Petitioner] because he had already ran off and no one
was hurt at that moment. I can identify all involved even the person
who shot the gun at the end of the struggle. If summon[ed] to testify, I
will attest and testify in favor of [Petitioner]. I also contacted the Law
Firm of Jan Ronis and Ronis and spoke with one of his investigators Juan
Lopez along with Jan Ronis in regards to my testimony. I told the
investigator that [Petitioner] had not shot the victim, and that I would
testify to my testimony. However I was never contacted again and I
contacted them a few times and left messages. I was never asked to appear
in trial or submit my testimony in front of a judge.
Id. at 4 (emphasis added). In his sworn declaration, Rubio stated:
I was inside the KP Hall location greeting incoming guest, and
friends who had previously arrived when I heard an argument or what
sounded like a fight in the opposite room where I was in. I was told about
a fight in the dancing room area and I immediately ran towards the
individuals, but whatever it was it had been stopped. The individual
[Petitioner] was bleeding from different areas in his face, and I looked to
see who had been involved, and noticed my friends Adan and Arturo the
brothers were being held back by a few people they had arrived with. I
was a little upset since they were ruining my celebration for my son, and
they had arrived with lots of friends who I had never known or invited to
the celebration. I was also concern with [Petitioner] bleeding heavily from
the face and looked really injured, I guess Adan, Arturo and the friends
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3
4
5
6
7
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10
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along with family were still very angry because names were being yelled
to [Petitioner]. By this time everyone was making their way towards the
front entrance, once outside either Adan or Arturo yelled there is that puto
let’s get him, and I turned to see who it was and it was [Petitioner] once
surrounded by at least 4-5 people another fight began, but this time
[Petitioner] was being jumped, there was someone screaming to leave me
alone, I have a gun and I don’t want to hurt anyone I saw it was
[Petitioner] trying to warn or scare people, the fight continued that's when
I heard and saw a gun being shot in the air. A struggle for the gun began
and everyone was trying to take control of it, while at the same time
kicking was going on and [Petitioner] stumble to the floor and a lot of
gun shots were fired towards all directions, someone yelled hey Police
people ran all directions. Once everyone ran 2 shots were fired
towards Arturo from another short male in the group. I had always
told this story to the attorney’s helper a Juan, and I was told I would need
to tell this to the courts, but I never received a call or a time to appear and
tell my side. I also recall leaving 2-3 messages for a Ronis Lawyer. I was
never asked to come to courts to tell them I was a witness to this fight.
Id. at 2 (emphasis added).
B.

Recommendation of the Magistrate Judge

The Magistrate Judge recommended denying claim three, concluding that
Petitioner’s counsel made a reasonable tactical decision not to investigate or call
Escamilla or Rubio to testify. (ECF No. 40 at 25). The Magistrate Judge did not
consider the above declarations, and found that the Petition contains merely a
“conclusory assertion that particular individuals could have testified that he was not the
only shooter if only his attorney had investigated and called them as witnesses....” Id.
at 21. The Magistrate Judge recommended denying claim six on the ground that
defense counsel did not perform in an objectively unreasonable manner by failing to
call a ballistics expert. The Magistrate Judge recommended denying claim four,
concluding that Petitioner’s appellate counsel could not have been ineffective for failing
to raise claims three and six on direct appeal because these underlying claims are
without merit.
Petitioner objects to the Magistrate Judge’s recommendation to deny claim three
on the grounds that: (1) “deficient performance ... has been established in this case”
because his counsel “failed to present any defense to the crime of which Petitioner was
charged [and] failed to interview witnesses who would corroborate third party
culpability”; and (2) prejudice has been established because evidence “that raise[s]
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10cv397 WQH (BGS)

1

sufficient doubt ... to undermine confidence in the verdict” would have been introduced

2

had his counsel performed reasonably.

3

recommendation to deny claim six on the basis that the Magistrate Judge improperly

4

found that “no expert witness could have contributed to Petitioner’s defense in the

5

manner presented.” Id. at 11.

Id. at 9.

Petitioner objects to the

6

C.

Analysis

7

For ineffective assistance of counsel to provide a basis for habeas relief,

8

Petitioner must demonstrate two things. First, he must show that counsel’s performance

9

was deficient. Strickland v. Washington, 466 U.S. 668, 687 (1984). “This requires

10

showing that counsel made errors so serious that counsel was not functioning as the

11

‘counsel’ guaranteed to the defendant by the Sixth Amendment.” Id. Second, he must

12

show that counsel’s deficient performance prejudiced the defense. Id. This requires

13

showing that counsel’s errors were so serious that they deprived Petitioner “of a fair

14

trial, a trial whose result is reliable.” Id. The standards under both Strickland and

15

section 2254(d) are highly deferential, and they become “doubly deferential” when

16

Strickland and section 2254(d) apply “in tandem.” Harrington v. Richter, 131 S. Ct

17

770, 788 (2011). Federal habeas courts approach an ineffective assistance of counsel

18

claim with the “strong presumption” that counsel “rendered adequate assistance and

19

made all significant decisions in the exercise of reasonable professional judgment.”

20

Cullen v. Pinholster, 131 S. Ct. 1488, 1403 (2011).

21

The state court record shows that Rubio and Escamilla each stated, in sworn

22

declarations, that they informed Petitioner’s defense counsel prior to trial that they (1)

23

witnessed Petitioner shooting at the ground and into the air; (2) witnessed a struggle for

24

Petitioner’s gun involving several people; (3) heard someone yell “police”; and (4)

25

witnessed someone other than Petitioner shoot Rivera as everyone was dispersing from

26

the scene. Rubio and Escamilla each stated that Petitioner’s defense counsel did not

27

follow up with them prior to trial. Neither Rubio nor Escamilla were called to testify

28

at trial.
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10cv397 WQH (BGS)

1

On federal habeas review, “counsel’s attention to certain issues to the exclusion

2

of others [is presumed to] reflect[] trial tactics rather than ‘sheer neglect.’” Richter, 131

3

S. Ct. at 790 (quoting Yarborough v. Gentry, 540 U.S. 1, 8 (2003) (per curiam)). “[T]he

4

question is not whether counsel’s actions were reasonable,” but rather, “whether there

5

is any reasonable argument that counsel satisfied Strickland’s deferential standard.” Id.

6

at 788. To the extent Escamilla and/or Rubio would have testified that an individual

7

other than Petitioner acquired possession of Petitioner’s gun and shot Arturo Rivera

8

after “police” was yelled, this testimony would have conflicted with Petitioner’s

9

testimony that he retained possession of the gun at all times, that shots were fired

10

before, but not after, he heard “police,” and that the gun would no longer fire bullets

11

when he heard “police.” To the extent Rubio would have testified that an individual

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other than Petitioner used a different gun to shoot Arturo Rivera after “police” was

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yelled, this testimony would have conflicted with Petitioner’s testimony that he

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possessed the only gun at the scene, and that shots were fired before, but not after, he

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heard “police.”

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credibility. Jurors would have been less likely to believe Petitioner’s testimony that he

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did not intentionally shoot anyone and that he possessed the gun merely to protect

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himself. As a result, a conviction on the attempted murder count, for which jurors were

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unable to reach a verdict, would have been more likely. Accordingly, the Court finds

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that reasonable, strategic, reasons existed for defense counsel not to investigate or call

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these witnesses, even if these witnesses did contact defense counsel prior to trial.

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Pursuant to the “doubly deferential” standard of review required under Strickland and

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§ 2254(d), the Court concludes that the decision of the California Supreme Court to

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deny relief as to claim three was neither contrary to, nor an unreasonable application of,

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clearly established federal law.11

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Such conflicting testimony would have impugned Petitioner’s

With respect to claim six, the Court has considered Petitioner’s contentions that

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In light of the sworn declarations submitted by Rubio and Escamilla, the Court
will grant a certificate of appealability as to claim three of the Petition.
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his counsel was ineffective for not retaining an independent ballistics expert to testify

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at trial. In light of the Court’s decision as to claim three, the Court concludes that

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Petitioner has failed to adequately demonstrate that the decision of the California

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Supreme Court to deny relief was contrary to, or an unreasonable application of, clearly

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established federal law. See Turner, 281 F.3d at 876 (“The choice of what type of

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expert to use is one of trial strategy and deserves ‘a heavy measure of deference.’”

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(quoting Strickland, 466 U.S. at 491)).

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Finally, in claim four, Petitioner contends that his appellate counsel was

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ineffective for failing to raise claims three and six of the Petition on direct appeal. For

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the same reasons the Court denied claims three and six, discussed above, the Court

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concludes that the decision of the California Supreme Court to deny claim four was

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neither contrary to, nor an unreasonable application of, clearly established federal law.

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The Court adopts the recommendation of the Magistrate Judge to deny claims

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three, four and six of the Petition.

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III.

Claim Five: Brady Violation12

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In claim five, Petitioner contends: “The People’s failure to comply with the

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requirements of Brady v. Maryland violated Petitioner’s right to due process and a fair

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trial and warrants reversal of the conviction; along with a violation of Brady v.

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Maryland on collateral attack.” (ECF No. 1-11 at 55-59). Petitioner asserts that the

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prosecution failed to disclose evidence “concerning[Sandy Barajas] knowing that there

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were many eyewitnesses, including herself, who knew petitioner was not the person

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who shot the victim.” Id. at 58. “But for the People’s Constitutional and Statutory

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violations, Petitioner would not have been convicted.” Id. at 59.

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Petitioner raised claim five for the first time in his habeas corpus petition

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(Lodgment 9) filed before the California Supreme Court. The California Supreme

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Court summarily denied the petition (Lodgment 10), which is presumed to be an

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12

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In support of claim five, Petitioner incorporates by reference pages 53-58 of his
habeas corpus petition before the California Supreme Court. (Lodgment 7 at 53-58;
ECF No. 1-11 at 55-60).
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adjudication “on the merits” within the meaning of AEDPA. See Harrington, 131 S.

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Ct. at 784-85. Because no reasoned state court decision exists as to claim five, the

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Court must independently review the record to determine whether Petitioner is entitled

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to relief.

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The Magistrate Judge recommended that the Court deny claim five because

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Petitioner’s defense counsel was aware of the witnesses Petitioner alleges the

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prosecution failed to disclose. (ECF No. 40 at 30-31). Petitioner objects to this

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recommendation on the basis that the Magistrate Judge improperly relied on a Sixth

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Circuit case that “does not have a link to Supreme Court precedent.” (ECF No. 43 at

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10-11).

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The Due Process Clause of the Fourteenth Amendment requires the State to

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disclose to criminal defendants favorable evidence that is material either to guilt or to

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punishment. See Brady, 373 U.S. at 83; United States v. Agurs, 427 U.S. 97 (1976).

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A Brady claim contains three essential elements: “The evidence at issue must be

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favorable to the accused, either because it is exculpatory, or because it is impeaching;

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that evidence must have been suppressed by the State, either willfully or inadvertently;

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and prejudice must have ensued.” Banks v. Dretke, 540 U.S. 668, 691 (2004) (quoting

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Strickler v. Greene, 527 U.S. 263, 281-282 (1999)). To be found unconstitutional, a

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failure to disclose must be “of sufficient significance to result in the denial of the

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defendant’s right to a fair trial.” Agurs, 427 U.S. at 108.

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In this case, even if the prosecution did fail to disclose Sandy Barajas’ list of

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witnesses to defense counsel, Petitioner cannot establish that he was prejudiced as a

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result. As discussed above, Sandy Barajas stated in her sworn declaration: “I provided

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the Jan Ronis Law Firm with several witnesses that were there on that day and never

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contacted for their statements. I will provide a list of witnesses names at the end of this

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statement.” (ECF No. 1-7 at 7). There is no evidence that Sandy Barajas gave any

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name to the prosecution that was not also given to defense counsel. Accordingly, any

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failure to disclose by the prosecution could not have been “of sufficient significance to
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result in the denial of the defendant’s right to a fair trial.” Agurs, 427 U.S. at 108. The

2

Court concludes that the decision of the California Supreme Court to deny claim five

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was neither contrary to, nor an unreasonable application of, clearly established federal

4

law.
The Court adopts the recommendation of the Magistrate Judge to deny claim five

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of the Petition.

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IV.

Evidentiary Hearing

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The Court adopts the recommendation of the Magistrate Judge to deny

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Petitioner’s request for an evidentiary hearing. See Pinholster, 131 S. Ct. at 1400 (“If

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a claim has been adjudicated on the merits by a state court, a federal habeas petitioner

11

must overcome the limitation of § 2254(d)(1) on the record that was before that state

12

court.”).

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CERTIFICATE OF APPEALABILITY

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A certificate of appealability must be obtained by a petitioner in order to pursue

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an appeal from a final order in a Section 2254 habeas corpus proceeding. See 28 U.S.C.

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§ 2253(c)(1)(A); Fed. R. App. P. 22(b). Pursuant to Rule 11 of the Federal Rules

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Governing Section 2254 Cases, “[t]he district court must issue or deny a certificate of

18

appealability when it enters a final order adverse to the applicant.”

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A certificate of appealability may issue “only if the applicant has made a

20

substantial showing of the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). It

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must appear that reasonable jurists could find the district court’s assessment of the

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petitioner’s constitutional claims debatable or wrong. See Slack v. McDaniel, 529 U.S.

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473, 484-85 (2000). The Court concludes that jurists of reason could find it debatable

24

whether this Court was correct in denying claim three of the Petition. A certificate of

25

appealability is granted as to claim three.

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CONCLUSION

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IT IS HEREBY ORDERED that the Report and Recommendation (ECF No. 40)

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is ADOPTED, in part, in accordance with the rulings of this Order. The Petition for
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Writ of Habeas Corpus (ECF No. 1) is DENIED. A certificate of appealability is

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GRANTED as to claim three.

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DATED: September 10, 2013

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WILLIAM Q. HAYES
United States District Judge

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