Barron v. Paramo

Filing 25

ORDER: (1) ADOPTING REPORT AND RECOMMENDATION; (2) Denying Petition; and (3) Denying a Certificate of Appealability. Signed by Judge Roger T. Benitez on 1/12/2016.(All non-registered users served via U.S. Mail Service)(knb)

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UNITED STATES DISTRICT COURT

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SOUTHERN DISTRICT OF CALIFORNIA

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LUIS FRANCISCO BARRON,
Petitioner,

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Case No.: 14CV1968 BEN (DHB)
ORDER:

v.
(1) ADOPTING REPORT AND
RECOMMENDATION;

DANIEL PARAMO,
Respondent.

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(2) DENYING PETITION; and

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(3) DENYING A CERTIFICATE OF
APPEALABILITY

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[Docket No. 23]

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Petitioner Luis Francisco Barron, a state prisoner proceeding pro se, commenced

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this action with the filing of a Petition for Writ of Habeas Corpus pursuant to 28 U.S.C.

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§ 2254. (Docket No. 1). Petitioner challenges his conviction for first degree murder. He

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asserts that his trial counsel was ineffective because he failed to request a voluntary

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intoxication jury instruction.

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Respondent filed an Answer and Petitioner filed a Traverse. (Docket Nos. 12, 22.)

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On October 5, 2015, Magistrate Judge David H. Bartick issued a thoughtful and thorough

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Report and Recommendation recommending that the Petition be denied. (Docket No.
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23.) Objections to the Report and Recommendation were filed. (Docket No. 24.) For

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the reasons that follow, the Objections are overruled, the Report and Recommendation is

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ADOPTED, and the Petition is DENIED.

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DISCUSSION
A district judge “may accept, reject, or modify the recommended disposition” of a

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magistrate judge on a dispositive matter. Fed. R. Civ. P. 72(b)(3); see also 28 U.S.C. §

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636(b)(1). “The district judge must determine de novo any part of the [report and

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recommendation] that has been properly objected to.” Fed. R. Civ. P. 72(b)(3).

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Petitioner objects that his trial counsel was ineffective in failing to request a voluntary

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intoxication instruction. Petitioner asserts that if his counsel had requested the instruction

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it would have negated the intent element for first degree murder.

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The Report and Recommendation found that the Court of Appeal’s decision, the

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last reasoned decision, was not contrary to clearly established federal law and that the

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court reasonably determined Petitioner failed to state a cognizable claim for ineffective

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assistance of trial counsel. Having conducted a de novo review, this Court agrees.

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Under Strickland v. Washington, a petitioner must demonstrate that: (1) defense

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counsel’s performance was deficient; and (2) this deficient performance was prejudicial.

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466 U.S. 668, 690-92 (1984). Because of the difficulties inherent in evaluating the

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performance of counsel after the fact, a court must indulge a strong presumption that

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counsel’s conduct falls within the wide range of reasonable professional assistance. Id. at

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689. On federal habeas review, this Court must take “a ‘highly deferential’ look at

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counsel’s performance through the ‘deferential lens of § 2254(d).’” Cullen v. Pinholster,

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563 U.S. 170, 189 (2011) (quoting id. at 689 and Knowles v. Mirzayance, 556 U.S 111,

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121 n.2 (2009). “The question ‘is not whether a federal court believes the state court’s

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determination under the Strickland standard ‘was incorrect, but whether that

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determination was unreasonable—a substantially higher threshold.” Mirzayance, 556

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U.S. at 123. “Put differently, [the court] ask[s] not ‘whether counsel’s actions were
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reasonable’ but ‘whether there is any reasonable argument that counsel satisfied

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Strickland’s deferential standard.” Hibbler v. Benedetti, 693 F.3d 1140, 1150 (9th Cir.

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2012). Petitioner “must show that the [state court] applied Strickland to the facts of his

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case in an objectively unreasonable manner.” Bell v. Cone, 535 U.S. 685, 699 (2002).

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As explained in more detail in the Report and Recommendation, in evaluating

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Petitioner’s ineffective assistance of counsel claim, the Court of Appeal acknowledged

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evidence that Petitioner had been drinking earlier in the evening of the shooting.

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However, the court also explained there was no evidence the consumption, hours earlier,

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impacted his ability to form the requisite intent at the time of the shooting. The court

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then went on to describe the significant evidence that Petitioner’s earlier drinking did not

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impact him, including testimony that: he was not slurring his speech, stumbling, or

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particularly drunk; shortly before the shooting, he decided and explained that he did not

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escalate an assault on an individual based on the subject’s age; he directed the driver of

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the vehicle from which he shot to slow down right before he shot the victim; he directed

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the driver to stop after the shooting to allow him to pick up the shotgun shell; and he

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formulated and immediately put into action a plan to dump the weapon, clean the vehicle,

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maintain the silence of those aware of the shooting, and flee to Mexico. The court

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reasonably found there was no deficiency in counsel’s decision not to request a voluntary

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intoxication instruction because there was insufficient evidence to support the instruction.

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The court also went on to explain that trial counsel’s decision not to pursue a

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voluntary intoxication defense may have been strategic. Petitioner’s intoxication may

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have been investigated, but did not yield evidentiary support sufficient to undermine the

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significant evidence weighing against intoxication. Counsel may have also declined to

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pursue it because it might have detracted from the defense’s theory of the case, i.e. that

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he had the intent to shoot into an empty park and hitting someone in a dark park in the

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middle of the night was a tragic accident. See Cheney v. Washington, 614 F.3d 987, 996

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(9th Cir. 2010) (“Under Strickland, the court must indulge a strong presumption that
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counsel acted for tactical reasons rather than through sheer neglect.”).
The Court of Appeals decision, applying the Strickland standard, was not

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unreasonable. The court correctly concluded that there was a lack of evidence to support

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requesting the instruction in addition to tactical reasons counsel might not have pursued

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that particular strategy. The Petition is DENIED.

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The Court DENIES a certificate of appealability because the issues are not

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debatable among jurists of reason and there are no questions adequate to deserve

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encouragement. See Miller-El v. Cockrell, 537 U.S. 322, 327 (2003).

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CONCLUSION
The Report and Recommendation is ADOPTED over Petitioner’s Objections. The

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Petition is DENIED. A Certificate of Appealability is DENIED. The Clerk shall close

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the case.

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IT IS SO ORDERED.
Dated: January 12, 2016

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