Najera v. Sherman et al

Filing 18

ORDER ADOPTING REPORT AND RECOMMENDATION 10 , overruling petitioner's objections, denying the request for an evidentiary hearing, and denying the petition for writ of habeas corpus. The Court declines to issue a certificate of appealability. Signed by Judge Cynthia Bashant on 4/7/17. (All non-registered users served via U.S. Mail Service)(kas)

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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 JOSE NAJERA, 11 Case No. 15-cv-02444-BAS-JLB Petitioner, 12 13 ORDER: (1) OVERRULING PETITIONER’S OBJECTIONS; v. 14 STU SHERMAN, et al., 15 (2) ADOPTING REPORT AND RECOMMENDATION; AND Respondents. 16 (3) DENYING PETITION FOR WRIT OF HABEAS CORPUS 17 18 19 20 On October 28, 2015, Petitioner Jose Najera (“Najera”), a state prisoner 21 proceeding pro se and in forma pauperis, filed a Petition for Writ of Habeas Corpus 22 pursuant to 28 U.S.C. § 2254, challenging his March 4, 2013 conviction in San Diego 23 Superior Court for second degree murder. (ECF No. 1 at 6.) Petitioner asserts that 24 former California Penal Code § 22(b) (“former § 22(b)”)1 violates federal due process 25 by excluding relevant exculpatory evidence. 26 27 California Penal Code § 22(b) was renumbered as § 29.4 in 2013. For consistency with other filings in this case, the Court will continue to refer to the code provision in question as “former § 22(b)”. 1 28 –1– 15cv2444 1 On August 19, 2016, United States Magistrate Judge Jill L. Burkhardt issued 2 a Report and Recommendation (“Report”) recommending that this Court deny the 3 petition. (ECF No. 10.) Petitioner filed an Objection to the Report and 4 Recommendation (“Objection”) in which he reasserts his claim that former § 22(b) 5 violates due process, and also argues that the magistrate judge failed to properly 6 review the record before reaching her legal conclusions. Petitioner also requests an 7 evidentiary hearing. Respondents have not replied. BACKGROUND 8 9 10 11 12 13 14 15 On the morning of April 25, 2007, Najera was driving a stolen car. He had two passengers: his friend, David Lopez, and Lopez’s girlfriend, Rachel Gaxiola. At approximately 9:00 a.m., San Diego County Sheriff’s deputies attempted to stop Najera’s car, having received a report it was stolen. Najera initially pulled the car over to the side of the road but then made a sharp U-turn and rapidly accelerated; Najera narrowly missed oncoming traffic and drove on the wrong side of a divided roadway at speeds up to 80 miles per hour[] for just under a minute. The chase finally ended when Najera collided head-on with a 76-year-old motorist, Jean Cooke. . . . 16 17 18 19 20 All four people involved in the collision were taken to the hospital, where Lopez was pronounced dead. Gaxiola had several severe bone fractures; she spent the next two and a half months in the hospital and was still in “constant pain” at the time of the trial. Cooke also suffered several broken bones and a collapsed lung; she still experienced symptoms of her injuries, including difficulty standing, at the time of trial. 21 22 23 24 25 26 Najera was treated for several fractures and lacerations. Najera admitted to doctors at the hospital that he had used methamphetamine the evening before the collision and heroin approximately five hours before the collision. These admissions were confirmed by later blood tests and consistent with the fact that a usable amount of methamphetamine was found in his pants pocket. (ECF No. 8-7 at 3–4.) 27 Najera was ultimately convicted in San Diego County Superior Court of 28 second degree murder, gross vehicular manslaughter while intoxicated, and other –2– 15cv2444 1 charges. Najera timely filed an appeal with the California Court of Appeal on May 2 6, 2013. (ECF No. 8-1 at 163.) The California Court of Appeal affirmed Najera’s 3 conviction. (ECF No. 8-7 at 1–15.) Subsequently, Najera filed a petition for review 4 in the Supreme Court of California, which summarily denied the petition on 5 November 12, 2014. (ECF Nos. 8-8, 8-9 at 1.) Najera timely filed the instant Petition on October 28, 2015. (ECF No. 1.) 6 LEGAL STANDARD 7 8 A. Review of Magistrate Judge’s Report and Recommendation 9 The Court reviews de novo those portions of a report and recommendation to 10 which objections are made. 28 U.S.C. § 636(b)(1)(C). The Court may “accept, reject, 11 or modify, in whole or in part, the findings or recommendations made by the 12 magistrate judge.” Id. But the statute makes clear that “the district judge must review 13 the magistrate judge’s findings and recommendations de novo if objection is made, 14 but not otherwise.” United States v. Reyna-Tapia, 328 F.3d 1114, 1121 (9th Cir. 15 2003) (en banc) (emphasis in original); see also Schmidt v. Johnstone, 263 F. Supp. 16 2d 1219, 1226 (D. Ariz. 2003) (concluding that where no objections were filed, the 17 district court had no obligation to review the magistrate judge’s report de novo). 18 “Neither the Constitution nor the statute requires a district judge to review, de novo, 19 findings and recommendations that the parties themselves accept as correct.” Reyna- 20 Tapia, 328 F.3d at 1121. This legal rule is well-established in the Ninth Circuit and 21 this district. See Wang v. Masaitis, 416 F.3d 992, 1000 n.13 (9th Cir. 2005) (“Of 22 course, de novo review of a[n] R & R is only required when an objection is made to 23 the R & R.”). 24 B. Federal Habeas Review 25 The power of a federal court to grant habeas relief on behalf of state prisoners 26 is governed by 28 U.S.C. § 2254, as amended by the Antiterrorism and Effective 27 Death Penalty Act of 1996 (“AEDPA”). See Lindh v. Murphy, 521 U.S. 320, 326–27 28 (1997). Under AEDPA, a habeas petition will not be granted on any claim –3– 15cv2444 1 adjudicated on the merits in state court, unless that adjudication: (1) resulted in a 2 decision that was contrary to or involved an unreasonable application of clearly 3 established federal law; or (2) resulted in a decision that was based on an 4 unreasonable determination of the facts in light of the evidence presented at the state 5 court proceeding. 28 U.S.C. § 2254(d); see also Early v. Packer, 537 U.S. 3, 7–8 6 (2002). 7 For purposes of AEDPA, the phrase “clearly established federal law” means 8 “the governing principle or principles set forth by the Supreme Court at the time the 9 state court renders its decision.” Lockyer v. Andrade, 538 U.S. 63, 72 (2003). A state 10 court decision is “contrary to” clearly established federal law if it applies a rule that 11 contradicts governing Supreme Court law, or if it confronts a set of facts that is 12 “materially indistinguishable” from a decision of the Supreme Court, but reaches a 13 different result. Brown v. Payton, 544 U.S. 133, 141 (2005) (citing Williams v. 14 Taylor, 529 U.S. 362, 405–06 (2000)). A state court decision involves an 15 “unreasonable application” of clearly established federal law if the state court 16 correctly identifies the governing law, but applies that law in an “objectively 17 unreasonable” manner. Lockyer, 538 U.S. at 76 (citing Williams, 529 U.S. at 409, 18 413). 19 In assessing whether a state court decision was based on “an unreasonable 20 determination of the facts” under AEDPA’s second prong, the Court presumes 21 factual findings made by the state court to be correct. “The applicant shall have the 22 burden of rebutting the presumption of correctness by clear and convincing 23 evidence.” 28 U.S.C. § 2254(e)(1); see Lambert v. Blodgett, 393 F.3d 943, 971–72 24 (9th Cir. 2004). Clear and convincing means that the Court “must be convinced that 25 an appellate panel, applying the normal standards of appellate review, could not 26 reasonably conclude that the finding is supported by the record.” Taylor v. Maddox, 27 366 F.3d 992, 1000 (9th Cir. 2004). 28 Where there is no reasoned decision from the state’s highest court, the Court –4– 15cv2444 1 “looks through” to the last reasoned state court decision to address the claim at issue. 2 See Ylst v. Nunnemaker, 501 U.S. 797, 805–06 (1991). Here, the California Supreme 3 Court summarily denied Najera’s petition for review, and so the Court “looks 4 through” to the California Court of Appeal’s unpublished written decision, People v. 5 Najera, No. D063875, 2014 WL 4240581 (Cal. Ct. App. Aug. 27, 2014), as the 6 appropriate decision for review. ANALYSIS 7 8 A. Constitutionality of Former Section 22(b) 9 Former section 22(b) of the California Penal Code provides in part that where 10 a defendant has been charged with murder “evidence of voluntary intoxication is 11 admissible solely on the issue of whether the defendant premeditated, deliberated, or 12 harbored express malice aforethought.” (Cal. Penal Code § 22(b)) (1995) (emphasis 13 added).2 Najera’s main argument is that this provision violated his due process rights 14 by prohibiting him from providing evidence of voluntary intoxication to show he did 15 not act with the implied malice needed to prove second degree murder. (ECF No. 1.) 16 The California Court of Appeal found that former § 22(b) was a legitimate 17 exercise of the California Legislature’s authority to redefine the mens rea 18 requirement of particular crimes and thus did not violate Najera’s right to due 19 process. (ECF No. 8-7 at 8–10.) For her part, the magistrate judge found that the 20 California Court of Appeal’s decision was neither contrary to nor an unreasonable 21 application of clearly established federal law. She found that the court of appeal 22 reasonably applied clearly established law, and that the ruling was not “diametrically 23 opposed” to clearly established federal law, as the facts of Najera’s case were 24 fundamentally identical to those in Montana v. Egelhoff, 518 U.S. 37, 40 (1996). 25 Najera fails to present specific objections to the magistrate judge’s reasoning 26 or interpretation of the law. He contends that “the Magistrate erred by denying [the 27 28 2 As noted in footnote 1, supra, former § 22 was renumbered as 29.4 in 2013. The wording of the two sections remained identical. –5– 15cv2444 1 claim], and maintains his argument that former section 22 and the amended section 2 29.4, also unconstitutionally excludes exculpatory evidence and prevented him from 3 showing that . . . he was not acting with the . . . implied malice aforethought needed 4 to prove [he] committed the act of second degree murder.” (ECF No. 17 at 2.) This 5 is not an objection sufficient to trigger de novo review. See, e.g., Goney v. Clark, 749 6 F.2d 5, 7 (3d Cir. 1984) (finding that de novo review of magistrate’s report was not 7 required where appellant’s objections were “general in nature” and “[t]here was no 8 objection to a specific portion of the report”). Nevertheless, the Court will briefly 9 consider Najera’s arguments de novo. 10 1. 28 U.S.C. § 2254(d)(1) 11 To warrant habeas relief under 28 U.S.C. § 2254(d)(1), Najera must establish 12 that there is clearly established federal law concerning his argument, and that the 13 state court applied a legal test that is contrary to that established law. See Williams, 14 529 U.S. at 412. Najera does not dispute that Egelhoff is the Supreme Court decision 15 providing the applicable clearly established federal law. However, Najera misreads 16 what the appropriate governing law from Egelhoff is and how it applies to his case. 17 The issue in Egelhoff was whether Mont. Code Ann. § 45–5–102 (1995) 18 violated respondent’s due process by limiting the jury’s ability to consider his 19 intoxicated state when determining whether he had the requisite mens rea for 20 deliberate homicide under Montana law. Egelhoff, 518 U.S. at 41. The Supreme 21 Court explained that certain evidence may be restricted from being introduced, as the 22 Due Process Clause does not guarantee the right to introduce all relevant evidence. 23 However, the Court explained that such restrictions may violate due process if they 24 “offend[] some principle of justice so rooted in the traditions and conscience of our 25 people as to be ranked as fundamental.” Egelhoff, 518 U.S. at 43 (quoting Patterson 26 v. New York, 432 U.S. 197, 201–02 (1977)). In a fractured decision, the Court 27 concluded that the Montana statute did not offend a “fundamental principle of 28 justice,” and thus did not violate Egelhoff’s due process rights. Thus, the clearly –6– 15cv2444 1 established federal law from Egelhoff is that there is generally no due process 2 violation where a state defines a criminal offense in a way that excludes certain 3 relevant evidence. Egelhoff, 518 U.S. at 58 (Ginsburg, J., concurring) (quoting 4 Patterson v. New York, 432 U.S. 197, 201–02 (1977)). 5 Najera incorrectly focuses on a test proposed by Justice Ginsburg in her 6 concurring opinion—that a “rule designed to keep out ‘relevant, exculpatory 7 evidence’” is unconstitutional. Egelhoff, 518 U.S. at 57 (Ginsburg, J., concurring). 8 This test is not clearly established federal law for purposes of habeas review, because 9 it was not the narrowest ground concurred upon by five Justices. 3 However, even if 10 the Court applied Justice Ginsburg’s test, it would not be satisfied here. Both the 11 magistrate judge and the California Court of Appeal reasonably concluded that 12 former § 22(b) was designed to redefine the mental-state element of particular crimes 13 rather than to exclude relevant, exculpatory evidence.4 Accordingly, the Court agrees 14 with the magistrate judge that former § 22(b) does not infringe Najera’s due process 15 rights. Najera is not entitled to habeas relief on this ground. 16 2. 28 U.S.C. § 2254(d)(2) 17 To analyze AEDPA’s second prong, the Court considers whether the state 18 court made an unreasonable determination of the facts in light of the record before it. 19 20 21 22 23 24 25 26 27 28 3 The Supreme Court provided guidance on how to determine the holding of a fractured Supreme Court decision in the seminal case Marks v. United States, 430 U.S. 188 (1997). Marks, 430 U.S. at 193–94 (“When a fragmented Court decides a case and no single rationale explaining the result enjoys the assent of five Justices, the holding of the Court may be viewed as that position taken by those Members who concurred in the judgments on the narrowest grounds.”). 4 The California Court of Appeal cited several rationales for its conclusion. First, the court of appeal noted that former § 22(b), like the Montana statute in Egelhoff, is located not in the Evidence Code but in the Penal Code “with statutes defining and setting forth the kinds and degrees of crimes and their punishment.” (ECF No. 8-7 at 9.) Second, the court pointed out that former § 22(b) affirms California’s public policy that intoxicated persons and sober persons shoulder the same criminal responsibility for the same conduct. Finally, the State court explained that former § 22(b) establishes, and limits, the exculpatory effect of voluntary intoxication on the required mental state for particular crimes, and that there is no exception for introducing evidence of voluntary intoxication for defensive purposes. This reasoning is entirely consistent with clearly established federal law in Egelhoff. –7– 15cv2444 1 See 28 U.S.C. § 2254(d)(2). The Court must presume the factual findings made by 2 the state court are correct, while Najera has the burden of rebutting the presumption 3 of correctness by clear and convincing evidence. See 28 U.S.C. § 2254(e)(1). In his Objection, Najera seeks to contrast the facts of Egelhoff with the facts 4 5 of his case, asserting: 10 Egelhoff’s decision was used to bar voluntary intoxication in Petitioner’s case just because they’re similar, even though they’re completely different, because Egelhoff was in the back seat of the same car where two individuals was [sic] murdered as to [sic] [Egelhoff], where Petitioner was under the influence in a high speed pursuit chase and crashed causing death to the passenger of the same vehicle he was driving. 11 (ECF No. 17 at 3.) 12 Najera’s objection is misplaced. The test under § 2254(d)(2) is not whether the 13 facts of Najera’s case are in some way different from the facts of another case, but 14 whether the state court’s determination of the facts was “objectively unreasonable.” 15 Lockyer, 538 U.S. at 76. Here, Najera does not provide any evidence to rebut the 16 presumption of correctness accorded to the state court’s factual findings. In fact, 17 Najera raises no objection at all to these findings. Accordingly, the Court finds that 18 the state court’s decision was not based on an unreasonable determination of the facts 19 in light of the record before it. Najera is not entitled to habeas relief on this ground. 20 B. 6 7 8 9 21 22 23 24 25 26 27 28 Objection to Magistrate Judge’s Review of the Record Najera also appears to argue that the magistrate judge failed to properly review the record before finding he was not entitled to habeas relief. Najera contends: [T]he Magistrate did not review the relevant portions of the record based on the facts within Petitioner’s case, but biasly [sic] agreeing with the Respondent and it shows when the Magistrate did not Review [sic] and did not address the Review [sic] . . . When committing the error of denying Petitioner’s claim, the Magistrate failed to review and apply section 20 when making an allege [sic] independent decision of Petitioner’s habeas claim on the specific intent . . . the Magistrate just decided to agree with the State court’s determination, rather than apply –8– 15cv2444 2 an extraordinarily differential [sic] review of the actual record, the fact [sic] and statute, inquiring only whether the State court’s decision was objectively unreasonable. 3 (ECF No. 17 at 4.) 4 AEDPA imposes a “highly deferential” standard of review that “demands that 5 state-court decisions be given the benefit of the doubt.” Woodford v. Visciotti, 537 6 U.S. 19, 24 (2002) (per curiam) (internal citation omitted). Factual determinations 7 made by the state court are presumed correct, and it is the habeas petitioner, not the 8 magistrate judge, who has the burden of rebutting the presumption of correctness by 9 clear and convincing evidence. See 28 U.S.C. § 2254(e)(1). 1 10 Having reviewed the California Court of Appeal’s opinion and the magistrate 11 judge’s reasoning, analysis, and conclusions, the Court finds no support for Najera’s 12 claim that the magistrate judge did not properly review the record in accordance with 13 AEDPA. Najera apparently believes that the magistrate judge was required to 14 conduct a de novo review of his claims, but AEDPA imposes no such obligation so 15 long as Najera’s claims were “adjudicated on the merits” in state court. Amado v. 16 Gonzalez, 758 F.3d 1119, 1130 (9th Cir. 2014). There is no dispute that the state 17 court adjudicated Najera’s claims on the merits. Thus, the magistrate judge’s task 18 was to assess whether the state’s decision was contrary to, or involved an 19 unreasonable application of, clearly established federal law, or was based on an 20 unreasonable determination of the facts. 21 Having reviewed the Report and Recommendation, the Court finds that the 22 magistrate judge considered the record properly and thoroughly. The magistrate 23 judge’s reasoning is sound and her conclusions well-grounded in law. Accordingly, 24 Najera’s objection on this point fails. 25 C. Evidentiary Hearing Request 26 Finally, Najera requests an evidentiary hearing. (ECF No. 17 at 3–4.) “In 27 deciding whether to grant an evidentiary hearing, a federal court must consider 28 whether such a hearing could enable an applicant to prove the petition’s factual –9– 15cv2444 1 allegations, which, if true, would entitle the applicant to federal habeas relief.” 2 Schriro v. Landrigan, 550 U.S. 465, 474 (2007). A district court is not required to 3 hold an evidentiary hearing where “the record refutes the applicant’s factual 4 allegations or otherwise precludes habeas relief[.]” Id.; see also Hibbler v. Benedetti, 5 693 F.3d 1140, 1147 (9th Cir. 2012) (“An evidentiary hearing is not required on 6 issues that can be resolved by reference to the state court record.”) (citation omitted). 7 Najera argues that an evidentiary hearing is required so he can offer evidence 8 of his voluntary intoxication as a mitigating factor for the charge of murder. (ECF 9 No. 17 at 4–5.)5 But the issue is not whether Najera was voluntarily intoxicated at the 10 time of the accident. There is no factual dispute that he was. The issue is whether this 11 fact should have been excluded on legal grounds under former § 22(b). The state 12 court found it should be excluded. Specifically, the state court noted that the 13 California Legislature chose to make “voluntary intoxication . . . irrelevant to proof 14 of the mental state of implied malice or conscious disregard.” Najera, 2014 WL 15 4240581, at *4. Thus, an evidentiary hearing is unnecessary because the evidence 16 Najera seeks to introduce is irrelevant to the elements of the criminal offense at issue. 17 Cf. Schriro, 550 U.S. at 475 (finding that the district court was well within its 18 discretion to deny an evidentiary hearing where further development of the factual 19 record would not have entitled respondent to habeas relief). Accordingly, Najera’s 20 request for an evidentiary hearing is denied. CONCLUSION 21 22 After considering Najera’s objections and conducting a de novo review where 23 appropriate, the Court finds that Magistrate Judge Burkhardt’s reasoning is sound 24 and her conclusions well-grounded in the governing law. Accordingly, the Court 25 5 26 27 28 Najera was charged and convicted of various offenses indicating his intoxicated state including: gross vehicular manslaughter while intoxicated in violation of California Penal Code § 191.5(c)(1); driving under the influence causing injury in violation of California Vehicle Code § 23153(a); and possession of a controlled substance in violation of California Health and Safety Code § 11377(a). (ECF No. 8-1 at 19–24.) Thus, the jury was aware of Najera’s intoxication as this fact was part of the record. – 10 – 15cv2444 1 OVERRULES Petitioner’s Objections (ECF No. 17), APPROVES and ADOPTS 2 the Report (ECF No. 10) in its entirety, DENIES the request for an evidentiary 3 hearing, and DENIES the Petition (ECF No. 1). 4 Under 28 U.S.C. § 2253(c)(1), a petitioner may not appeal a final order in a 5 federal habeas proceeding without first obtaining a certificate of appealability 6 (“COA”). A COA may issue only if the applicant makes a substantial showing of the 7 denial of a constitutional right. 28 U.S.C. § 2253(c)(2). A COA is not a definitive 8 inquiry into the merits of a case, but rather a separate proceeding distinct from the 9 merits, with the question bearing on the debatability of the claim, not its resolution. 10 See Miller-El v. Cockrell, 537 U.S. 322, 342 (2003). Under this standard, “a petitioner 11 ‘must show that reasonable jurists could debate whether the petition should have been 12 resolved in a different manner or that the issues presented were adequate to deserve 13 encouragement to proceed further.’” Id. at 336 (quoting Slack v. McDaniel, 529 U.S. 14 473, 484 (2000)). 15 Here, Najera has not made the requisite substantial showing. Because 16 reasonable jurists could not find the Court’s assessment of the claims in the Petition 17 debatable or erroneous, the Court DECLINES to issue a certificate of appealability. 18 See Slack, 529 U.S. at 484. 19 IT IS SO ORDERED. 20 21 DATED: April 7, 2017 22 23 24 25 26 27 28 – 11 – 15cv2444

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