Hernandez v. State of California et al

Filing 29

ORDER Adopting Report and Recommendation [Doc. No. 25 ]; Rejecting Objections [Doc. No. 26 ]; Denying Petition [Doc. No. 9 ]; and Denying A Certificate of Appealability. Signed by Judge Cathy Ann Bencivengo on 9/7/2017. (All non-registered users served via U.S. Mail Service)(jjg)

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UNITED STATES DISTRICT COURT

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SOUTHERN DISTRICT OF CALIFORNIA

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ANDRES HERNANDEZ,

Case No.: 16cv1211 CAB (WVG)
Petitioner,

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v.

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ORDER ADOPTING REPORT AND
RECOMMENDATION [Doc. No. 25];
REJECTING OBJECTIONS [Doc.
No. 26]; DENYING PETITION [Doc.
No. 9]; and DENYING A
CERTIFICATE OF
APPEALABILITY

SCOTT KERNAN, Secretary, et al.,
Respondents.

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Andres Camarena Hernandez (“Petitioner”), is a state prisoner proceeding pro se

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with a Petition for Writ of Habeas Corpus by a Person in State Custody pursuant to 28

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U.S.C. § 2254. [Doc. No. 1.] This matter was referred to United States Magistrate Judge

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William V. Gallo pursuant to 28 U.S.C. § 636(b)(1)(B). Magistrate Judge Gallo issued a

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Report and Recommendation (“Report”) recommending the Court deny the petition.

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[Doc. No. 25.] Petitioner filed objections to the Report. [Doc. No. 26.]1

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On August 30, 2017, Petitioner again filed objections to the Report. [Doc. No. 28.] However, Doc.
No. 28 appears to be a duplicate of Doc. No. 26, with a slight change in the proof of service.

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Following de novo review of Petitioner’s claims, the Court finds the Report to be

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thorough, complete, and an accurate analysis of the legal issues presented in the petition.

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For the reasons explained below, the Court: (1) adopts the Report in full; (2) rejects

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Petitioner’s objections; (3) denies the Petition for Writ of Habeas Corpus; and (4) denies

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a certificate of appealability.

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BACKGROUND
I. Factual Background
The Report contains an accurate recital of the facts as determined by the California
Court of Appeal, and the Court fully adopts the Report’s statement of facts. As Judge

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Gallo correctly noted, the Court presumes state court findings of fact to be correct.

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II. State Procedural Background

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The Report contains a complete and accurate summary of the state court

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proceedings, and the Court fully adopts the Report’s statement of state procedural

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background.

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III. Federal Procedural Background

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On May 18, 2016, Petitioner filed a Petition for Writ of Habeas Corpus pursuant to

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28 U.S.C. § 2254. [Doc. No. 1.] The Court dismissed the action without prejudice,

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allowing Petitioner until July 18, 2016 to satisfy the filing fee requirement and file a First

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Amended Petition. [See Doc. No. 5 at 3.] On May 25, 2016, Petitioner paid the filing fee.

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[Doc. No. 6.] On July 19, 2016, Petitioner filed another petition. [See Doc. No. 9.] The

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Court construed this as a motion to reopen the case and a motion to amend. [See Doc. No.

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11.] On July 26, 2016, the Court granted the motions and deemed the First Amended

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Petition filed as of July 13, 2016, the date in which Petitioner signed the Petition. [See

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Doc. No. 11.] On April 12, 2017, Respondent timely filed an Answer to the Petition and

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lodged numerous state court records. [Doc. No. 20.] On May 11, 2017, Petitioner timely

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filed a Traverse. [Doc. No. 24.]

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On July 28, 2017, Magistrate Judge Gallo issued the Report recommending that the
petition be denied. [Doc. No. 25.] On August 25, 2017, Petitioner filed Objections to the
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Report. [Doc. No. 26.] In his objections, Petitioner argues that the magistrate judge erred

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in finding that the state court did not make an unreasonable application of clearly

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established federal law or an unreasonable determination of the facts in light of the

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evidence. Petitioner also requests an evidentiary hearing. Because Petitioner has

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objected to the Report in its entirety, the Court reviews the Report de novo. 28 U.S.C. §

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636(b)(1)(C); Holder v. Holder, 392 F.3d 1009, 1022 (9th Cir. 2004).

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DISCUSSION
I.

Legal Standard
The Report sets forth the correct standard of review for a petition for writ of habeas

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corpus. Under 28 U.S.C. § 2254(d):

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(d) 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
(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); Williams v. Taylor, 529 U.S. 362, 403, 412-13 (2000).

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Under § 2254(d)(1), a state court's decision is “contrary to” clearly established

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federal law if the state court (1) “arrives at a conclusion opposite to that reached by this

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Court on a question of law” or (2) “confronts facts that are materially indistinguishable

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from a relevant Supreme Court precedent and arrives at a result opposite to ours.”

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Williams, 529 U.S. at 405. A state court's decision is an “unreasonable application” if the

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

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(2003).

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Under § 2254(d)(2), habeas relief is not available due to a state court's

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“unreasonable determination of the facts” unless the underlying factual determinations

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were objectively unreasonable. See Miller-El v. Cockrell, 537 U.S. 322, 340 (2003); see

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also Rice v. Collins, 546 U.S. 333, 341-42 (2006) (the fact that “[r]easonable minds
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reviewing the record might disagree” does not render a decision objectively

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unreasonable).

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II. Petitioner's Request for an Evidentiary Hearing

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In his Traverse, Petitioner requests an evidentiary hearing. [Doc. No. 24 at 6.]

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Section 2254(e) “substantially restricts the district court's discretion to grant an

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evidentiary hearing.” Baja v. Ducharme, 187 F.3d 1075, 1077 (9th Cir.1999). Section

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2254(e)(2) provides:

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If the applicant has failed to develop the factual basis of a claim in State
court proceedings, the court shall not hold an evidentiary hearing on the
claim unless the applicant shows that(A) the claim relies on(i) a new rule of constitutional law, made retroactive to cases on collateral
review by the Supreme Court, that was previously unavailable; or
(ii) a factual predicate that could not have been previously discovered
through the exercise of due diligence; and
(B) the facts underlying the claim would be sufficient to establish by clear
and convincing evidence that but for constitutional error, no reasonable
factfinder would have found the applicant guilty of the underlying offense.
28 U.S.C. § 2254(e)(2).

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For the reasons discussed by the Magistrate Judge, there is a sufficient factual basis

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in the record to resolve Petitioner’s claims. See Insyxiengmay v. Morgan, 403 F.3d 657,
669-670 (9th Cir. 2005). Therefore Petitioner’s request for an evidentiary hearing is
DENIED.
III.

Petitioner raises three claims that include four separate grounds for relief in his

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Analysis of Petitioner’s Claims

Petition: (1) the State suppressed evidence in violation of Brady v. Maryland, 373 U.S.
83, 95 (1963); (2) the State violated the federal constitution by not producing the crime
weapon; (3) the State violated the federal constitution by not conducting DNA or
fingerprint analysis; and (4) his trial counsel provided ineffective assistance.
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A. Claim One: Suppression of Evidence.

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Petitioner contends the State violated the Fifth and Fourteenth Amendments by

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suppressing evidence because he was unable to locate certain police reports in the

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discovery materials, and those reports showed that one of the witnesses, Officer Glover,

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knew Petitioner from prior incidents. As noted by the Magistrate Judge, the record

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indicates that Petitioner did receive the reports at issue. [Doc. No. 25 at 7-8.] In his

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objections, Petitioner argues that just because the police reports were “offered” does not

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relinquish the State’s obligation to turn them over. [Doc. No. 26 at 4.] However the

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record indicates the police reports were turned over to the defense, as the trial judge

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discusses them when he ruled on the admissibility of Petitioner’s prior incidents. [Doc.

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No. 21-4 at 7.] Thus, if the defense did not have them, they certainly could have

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requested them. Finally, as noted by the Magistrate Judge, Petitioner has provided no

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evidence—such as a declaration from defense counsel—that the reports were not

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provided. Accordingly, this claim for relief is DENIED.

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B. Failure to Produce and Test the Weapon.

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Petitioner claims his right to due process was violated because the prosecution (1) did

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not produce the actual weapon (a crutch) used in the crime, but instead relied on a

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demonstrative replica; and (2) did not conduct DNA or fingerprint analysis. [Doc. No. 9

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at 17-18.] As noted by the Magistrate Judge, Petitioner has failed to show sheriff

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deputies acted in bad faith by not collecting and preserving the weapon. [Doc. No. 25 at

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11.] In his objections, Petitioner opines that the “Prints DNA would have been

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exonerating in nature.” [Doc. No. 26 at 10.] However, as noted by the Magistrate Judge,

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the sheriff deputies could have reasonably concluded the weapon had no exculpatory

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value given the multiple and consistent eye-witness statements provided by five different

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witnesses to the event. [Doc. No. 25 at 10-11.] Finally, the sheriff deputies had no

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constitutional obligation to conduct DNA testing. Arizona v. Youngblood, 488 U.S. 51,

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59 (1988). Accordingly, this claim for relief is DENIED.

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C. Ineffective Assistance of Counsel.

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Petitioner argues he was denied effective assistance of counsel for four reasons: (1)

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his attorney failed to assert a claim for prosecutorial misconduct when the State did not

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conduct DNA testing; (2) his attorney failed to object to the submission of “foreign

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material as evidence” when the State used an exemplar crutch rather than the actual

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weapon.; (3) his attorney failed to go into sufficient depth when cross-examining Deputy

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Glover as to how the deputy knew Petitioner; and (4) his attorney failed to notice the

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State introduced evidence that had not been exchanged during discovery [Doc. No. 9 at

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15, 19.]

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1. Failure to assert prosecutorial misconduct.

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As noted above, there is no constitutional requirement to conduct DNA testing.

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Thus, a failure to assert prosecutorial misconduct on this basis does not constitute

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ineffective assistance. Boag v. Raines, 769 F.2d 1341, 1344 (9th Cir. 1985). Moreover,

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regardless of who else may have touched the crutch, there are numerous witnesses who

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saw Petitioner grab the crutch and strike his brother during the altercation. Thus,

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Petitioner has not shown prejudice. Stickland v. Washington, 466 U.S. 668, 700 (1984).

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Accordingly, this claim for relief is DENIED.

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2. Failure to object to demonstrative crutch.

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As noted by the Magistrate Judge, there is no indication Petitioner’s failure to

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object to the demonstrative crutch was objectively unreasonable, as counsel has “wide

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latitude in making tactical decisions.” [Doc. No. 25 at 15, quoting Stickland, 466 U.S. at

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689.] Moreover, the record is clear that the jury was informed on several different

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occasions that the crutch was a demonstrative aid, not the actual weapon. Thus,

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Petitioner has not shown prejudice. Stickland, 466 U.S. at 700. Accordingly, this claim

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for relief is DENIED.

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3. Failure to go into depth of Deputy Glover’s knowledge of Petitioner.

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As noted by the Magistrate Judge, the depth and breadth of cross-examination done

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by counsel is a tactical decision for which counsel has wide latitude. [Doc. No. 25 at 17,

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citing Stickland, 466 U.S. at 689.] Petitioner provides no evidence as to why counsel was

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deficient in the cross-examination of Officer Glover. Accordingly, this claim for relief is

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DENIED.

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4. Failure to identify evidence not exchanged during discovery.

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As discussed above, the record shows that Petitioner’s counsel was provided with

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the police reports from the prior incidents. Petitioner does not provide any evidence that

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contradicts the record. Thus, a failure to raise a meritless argument does not constitute

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ineffective assistance. Boag, 769 F.2d at 1344. Accordingly, this claim for relief is

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DENIED.

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CERTIFICATE OF APPEALABILITY
A petitioner complaining of detention arising from state court proceedings must

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obtain a certificate of appealability to file an appeal of the final order in a federal habeas

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proceeding. 28 U.S.C. § 2253(c)(1)(A) (2007). The district court may issue a certificate

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of appealability if the petitioner “has made a substantial showing of the denial of a

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constitutional right.” Id. § 2253(c)(2). To make a “substantial showing,” the petitioner

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must “demonstrat[e] that ‘reasonable jurists would find the district court's assessment of

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the constitutional claims debatable[.]’ ” Beaty v. Stewart, 303 F.3d 975, 984 (9th

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Cir.2002) (quoting Slack v. McDaniel, 529 U.S. 473, 484 (2000)). Petitioner has not

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made a “substantial showing” as to any of the claims raised by his petition, and thus the

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Court sua sponte DENIES a certificate of appealability.

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CONCLUSION

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In sum, Petitioner has not established that the appellate court's decision was

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

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was based on an unreasonable determination of the facts in light of the evidence

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presented in the state courts. The Court hereby: (1) adopts the Report in full; (2) rejects
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Petitioner's objections; (3) denies the Petition for Writ of Habeas Corpus; and (4) denies a

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certificate of appealability.

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IT IS SO ORDERED.
Dated: September 7, 2017

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