Gutierrez v. Montgomery

Filing 22

REPORT AND RECOMMENDATION of United States Magistrate Judge re: 1 Petition for Writ of Habeas Corpus. It is hereby recommended that the District Judge issue an Order: (1) approving and adopting this Report and Recommendation, (2) directing that Judgment be entered denying the Petition. Objections to R&R due by 2/23/2018. Replies due by 3/2/2018. Signed by Magistrate Judge Mitchell D. Dembin on 1/24/2018.(All non-registered users served via U.S. Mail Service)(rmc)

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UNITED STATES DISTRICT COURT

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SOUTHERN DISTRICT OF CALIFORNIA

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ROLANDO GUTIERREZ,

Case No.: 17-cv-00438-MMA-MDD

Petitioner,

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v.

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SCOTT KERNAN, Secretary,
Respondent.

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REPORT AND
RECOMMENDATION OF UNITED
STATES MAGISTRATE JUDGE
RE: PETITION FOR WRIT OF
HABEAS CORPUS
[ECF No. 1]

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I.

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INTRODUCTION

This Report and Recommendation is submitted to United States

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District Judge Michael M. Anello pursuant to 28 U.S.C. § 636(b)(1) and Local

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Civil Rule 72.1(c) of the United States District Court for the Southern

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District of California.

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Rolando Gutierrez (“Petitioner”), a state prisoner proceeding pro se,

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seeks federal habeas relief from convictions for one count of second-degree

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murder (California Penal Code § 187(a)), one count of attempted second-

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degree murder (Cal. Pen. Code §§ 664, 187(a)), one count of making a

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criminal threat (Cal. Pen. Code § 422), and one count of corporal injury
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resulting in a traumatic condition (Cal. Pen. Code § 273.5(a)).
After reviewing the Petition (ECF No. 1), Respondent’s Answer and

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Memorandum of Points and Authorities in support thereof (“Answer”) (ECF

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Nos. 15, 15-1), Petitioner’s Traverse (ECF No. 21), supporting documents and

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pertinent state court Lodgments, the Court RECOMMENDS the Petition be

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DENIED for the reasons stated below.

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II.

FACTUAL BACKGROUND

A. State Proceedings
“[A] determination of factual issue made by a State court shall be

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presumed to be correct.” 28 U.S.C. § 2254(e)(1). The following facts, taken

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from the California Court of Appeal’s September 17, 2015, decision on direct

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review, (ECF No. 16-40 at 3-8), have not been rebutted with clear and

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convincing evidence and must be presumed correct. 28 U.S.C. § 2254(e)(1);

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Slovik v. Yates, 556 F.3d 747, 749 n.1 (9th Cir. 2009).

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In February 2009, defendant shot a gun a number of times
into a group of people, killing Hannah Podhorsky (at times,
February 2009 shooting). In August 2011, defendant threatened
to kill Merith Duenas, the mother of their child, and choked and
cut her with a knife (at times, August 2011 domestic violence).
A. The February 2009 Shooting
Witnesses at trial identified three gangs: the Wicked Clowns
or "W.K" gang; the Stomping Klowns Around or "S.K.A." gang; and
the Over Every Krew - 46th Street or "O.E.K. 46th Street" gang.
In 2009, the S.K.A. gang and the O.E.K. 46th Street gang were
friendly, and the W.K. gang and the O.E.K. 46th Street gang were
not.
Defendant and Juan Arredondo were members of the S.K.A.
gang; Raymundo Hernandez, Jr., and Jesus Vargas were members
of the O.E.K. 46th Street gang; and Angel Zamora and Podhorsky
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were members of the W.K. gang. In addition to the specific gangrelated events we describe post defendant and Zamora did not like
each other personally, and there was an ongoing conflict or
tension between them.
Duenas met defendant through her friend, Brittany
Roachford, in January 2009. When Duenas first met defendant,
he and Roachford were in an on-again-off-again romantic
relationship, and the three of them would drink and do drugs,
along with others who claimed to be in the S.K.A. gang.
Beginning late in the day on January 31, 2009, and
progressing into the early morning hours on February 1, 2009,
there were a number of confrontations between a group from the
W.K. gang and another group from the O.E.K. 46th Street and the
S.K.A. gangs.
A group of people associated with the W.K. gang, including
Podhorsky, were at a party at the residence of Juan Meza;
Zamora and two others left the party in Zamora's Nissan Xterra to
get more beer; they drove by defendant's home, where a group of
people were gathered, including defendant and Vargas; words
were exchanged; when the Xterra returned, again driving by
defendant's home, the W.K. gang members threw gang signs; and
Vargas responded by throwing a rock that broke the window of
Zamora's Xterra. Zamora felt disrespected; thus, after Zamora
told the others at the Meza residence what had happened, a group
of them, including Podhorsky, got back into the Xterra and
returned to defendant's house. They parked in an alley close to
defendant's house.
Meanwhile, Hernandez had been with friends at a house
where O.E.K. 46th Street gang members often spent time. He left
that house to attend a family birthday party for the parent of a
friend who lived down the street - near the alley where Zamora
and the other W.K. gang members had parked. While Hernandez
and the guests were in the back yard at the birthday party,
Hernandez heard the break of glass, and a group from the back
yard went out front and saw the broken window of the car of one
of the birthday party guests. Once out front, the group from the
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party saw the six or seven people from the Zamora group (W.K.
gang) on the street running toward the back of the house through
the alley. At that point, the two groups - i.e., the Zamora group
and the birthday party group - had a physical and verbal
confrontation in the alley: fists, rocks and a bat were used, and
Hernandez screamed out the name of his gang (O.E.K. 46th
Street). The police arrived, and the members of the Zamora group
split up and ran in various directions. After the police left, three
of the W.K. gang members (including Zamora and Podhorsky)
returned, got into the Xterra and drove back to the Meza
residence, where the W.K. gang had been partying earlier.
After the melee in the alley, Hernandez returned to the
house where he had been earlier that night before the birthday
party. On the front sidewalk, he saw defendant and Vargas and
told them what had just happened at the birthday party. Within
minutes Roachford and Duenas drove up, having received a call
shortly after midnight (now February 1) from defendant who
needed a ride; defendant had told Roachford that he was
concerned he was going to "get jumped." Although the record is
not clear, we understand from Duenas's testimony that, on their
way to pick up defendant, Duenas and Roachford drove by
defendant's house, where they saw a group of people yelling and
throwing rocks and sticks at the house. As defendant, Hernandez,
Vargas, Arredondo, Duenas and Roachford all drove away
together, defendant told the others about the earlier altercation
with Zamora and the Xterra in front of defendant's house.
Defendant stated that he "wanted to get" Zamora, because he
thought Zamora had disrespected him during the events leading
up to the earlier altercation. Hernandez understood defendant to
mean that he wanted to fight Zamora.
They drove a few blocks, stopping briefly at the house of a
friend of defendant. The friend handed defendant a gun wrapped
in a bandana and told defendant to " 'do it for 46th.' " They then
drove to various locations looking for Zamora. Defendant and
Hernandez would get out of the car, look around and return to the
car. As they were driving around, they saw Zamora's Xterra and
followed it. By this point in time, defendant had a gun and had
given Hernandez the gun in the bandana. Zamora parked the
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Xterra in the driveway of the Meza residence, and Arredondo
parked the other car on the street a few houses away.
Defendant asked Hernandez if he was " 'ready,' " which
Hernandez understood to mean ready to "go shoot somebody."
Zamora, Podhorsky and their friend were in the front yard of the
Meza residence, as defendant and Hernandez got out of the car,
each wearing a "hoodie" that covered his head and carrying a gun.
As defendant and Hernandez walked up the sidewalk, Zamora
heard someone yell " 'Fuck W.K.,' " followed by sound of gunshots.
According to Hernandez, defendant stopped, raised his gun and
shot it at least two times, and he (Hernandez) ran, never even
trying to shoot his gun.
Two bullets passed entirely through Podhorsky's body.
Podhorsky died from a gunshot wound to her torso.
B. The August 2011 Domestic Violence
A few months after the February 2009 shooting, defendant
and Duenas entered into a personal relationship, and they had a
child together in February 2010. Their relationship was a
physically violent one.
On August 15, 2011, Duenas was at work, and her friends
Bethany Fletcher and Leslie Lepe were at Duenas's house with
Duenas's eight-year-old sister and Duenas's one-and-a-half-yearold child. Lepe called Duenas to tell her that defendant had come
to the house and threatened to kill Lepe and Fletcher. Duenas
immediately left work, and when she arrived at home, Lepe told
Duenas that defendant's threat also included a return visit to kill
her (Duenas).
As her friends were telling Duenas in more detail what had
happened earlier, defendant returned. He entered the house by
jumping a fence to avoid a locked gate and opening a sliding glass
door. Defendant and Duenas argued, during which time
defendant called Duenas a bitch, threatened to kill her, pulled out
and opened a knife, cut her on her stomach, pushed her down to
the ground and choked her with his hands. After defendant cut
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Duenas with the knife (and before he choked her), Lepe grabbed
Duenas's child from Duenas, who had been holding the child
throughout this ordeal. Duenas thought defendant was going to
kill her, fully believing he was capable of doing so.
When Fletcher ran outside to call 911, defendant chased
after her and pushed her into the bushes in his attempt to take
her telephone. Defendant then left, threatening to kill all of them.
Fletcher completed the 911 call, and the authorities arrived.
In addition to telling the authorities about the domestic
violence events of that day, due to her fear of defendant - "I just
thought he was going to kill me, too. I believed he was capable of
it." - Duenas also told them what she knew about the February
2009 shooting. The authorities immediately placed Duenas in a
battered women's shelter, eventually placing her in a witness
protection program.
(ECF No. 16-40 at 3-8) (footnotes omitted).
On August 12, 2013, a San Diego Superior Court jury convicted

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Petitioner of the second-degree murder of Hannah Podhorsky (Cal. Pen. Code

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§ 187(a)) and the attempted second-degree murder of another victim (Cal.

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Pen. Code §§ 664, 187(a)). (ECF No. 16-33 at 28-29). “As to both of these

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counts, the jury found true the following allegations: defendant committed

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the crimes as part of criminal street gang-related activities ([Cal. Penal Code]

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§ 186.22(b)(1)); and defendant was a principal in the crimes, and in their

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commission at least one principal used a firearm, proximately causing a

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person’s death ([Cal. Penal Code] § 12022.53(d), (e)(1)).” (ECF No. 16-40 at

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2). “In addition, from a domestic violence incident in August 2011, the jury

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convicted defendant of making a criminal threat ([Cal. Pen. Code] § 422) and

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corporal injury resulting in a traumatic condition ([Cal. Pen. Code] §

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273.5(a)), but could not reach a verdict as to the attempted murder of Merith

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Duenas ([Cal. Pen. Code] §§ 664, 187(a)). As to the corporal injury count, the
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jury found true the allegation that defendant personally used a deadly and

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dangerous weapon, a knife ([Cal. Pen. Code] §§ 12022(b)(1), 1192.7(c)(23)).”

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(Id.). Petitioner was sentenced to a term of 65 years to life along with a

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consecutive term of ten years and four months.
On February 2, 2015, Petitioner filed an appeal in the California Court

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of Appeal, (ECF No. 16-37), arguing that “the trial court abused its discretion

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in not severing the charges arising from the February 2009 shooting from the

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charges arising from the August 2011 domestic violence incident.” (ECF No.

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16-40 at 2). The Court of Appeal affirmed the superior court’s judgment.

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(ECF No. 16-40 at 2). On October 26, 2015, Petitioner filed a Petition for

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Review in the California Supreme Court. (ECF No. 16-41). The California

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Supreme Court denied review on December 9, 2015. (ECF No. 16-42).
On November 14, 2016, Petitioner filed a Petition for Writ of Habeas

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Corpus with the San Diego Superior Court. (ECF No. 16-47). Petitioner

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raised four claims: (1) improper admission of gang evidence; (2) insufficient

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evidence to establish Cal. Penal Code § 186.22; (3) ineffective assistance of

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trial counsel; and (4) ineffective assistance of counsel on appeal. (Id.). The

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San Diego Superior Court denied habeas relief on December 12, 2016. (ECF

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No. 16-44). On January 25, 2017, Petitioner filed a habeas petition with the

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California Court of Appeal (Fourth District, Division 1), (ECF No. 16-45),

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which denied habeas relief on February 3, 2017, (ECF No. 16-46). On

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February 16, 2017, Petitioner filed a habeas petition in the California

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Supreme Court, (ECF No. 16-47), which denied habeas relief on April 19,

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2017. (ECF No. 16-48).

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B. Federal Proceedings
On February 24, 2017, Petitioner, proceeding pro se, constructively filed

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the instant Petition for Writ of Habeas Corpus. (ECF No. 1). The Petition

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sets forth the claim raised on direct review and the four claims raised on

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habeas review: (1) improper joinder of counts; (2)(A) improper admission of

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gang evidence; (2)(B) insufficient evidence to establish Cal. Penal Code §

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186.22; (3) ineffective assistance of trial counsel; and (4) ineffective assistance

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of appellate counsel. (ECF No. 1 at 6-9). On March 13, 2017, Petitioner

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constructively filed a motion to amend the second, third, and fourth grounds

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for relief in his Petition to show that they were exhausted. (ECF No. 10 at 1).

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This Court granted the Motion to Amend his Petition on May 17, 2017. (ECF

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No. 14). On May 19, 2017, Respondent filed an Answer, (ECF No. 15), and

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Memorandum of Points and Authorities In Support of Answer, (ECF No. 15-

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1). On July 16, 2017, Petitioner filed a Traverse and Memorandum of Points

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and Authorities in Support of Traverse. (ECF No. 21).

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III. STANDARD OF REVIEW

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“The statutory authority of federal courts to issue habeas corpus relief

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for persons in state custody is provided by 28 U.S.C. § 2254, as amended by

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the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA).”

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Harrington v. Richter, 562 U.S. 86, 97 (2011). Under § 2254(d), federal

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habeas relief for a claim adjudicated on the merits in state court is granted if

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the state court adjudication of the claim either: “(1) resulted in a decision that

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was contrary to, or involved an unreasonable application of, clearly

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established Federal law, as determined by the Supreme Court of the United

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States; or (2) resulted in a decision that was based on an unreasonable

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determination of the facts in light of the evidence presented in the State court

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proceeding.” 28 U.S.C. § 2254(d). “The petitioner carries the burden of
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proof.” Cullen v. Pinholster, 563 U.S. 170, 181 (2011).
In other words, “if the state court denies the claim on the merits, the

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claim is barred in federal court unless one of the exceptions to § 2254(d) set

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out in §§ 2544(d)(1) and (2) applies.” Richter, 562 U.S. at 103. “This is a

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‘difficult to meet’ and ‘highly deferential standard for evaluating state-court

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rulings, which demands that state-court decisions be given the benefit of the

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doubt[.]’” Pinholster, 563 U.S. at 181; White v. Woodall, 134 S.Ct. 1697, 1702

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(2014) (“This standard, we recently reminded the Sixth Circuit, is difficult to

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meet.”) (internal quotations omitted).
The state court’s decision is “contrary to” clearly established federal law

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if it either “‘applies a rule that contradicts the governing law set forth in

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[Supreme Court] cases’ or ‘confronts a set of facts that are materially

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indistinguishable from a decision of [the] Court and nevertheless arrives at a

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result different from [Supreme Court] precedent.’” Holley v. Yarborough, 568

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F.3d 1091, 1098 (9th Cir. 2009) (quoting Williams v. Taylor, 529 U.S. 362,

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405-06 (O’Connor, J., concurring)).

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The state court’s decision is “an unreasonable application” of clearly

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established federal law “if ‘the state court identifies the correct governing

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legal principle’ but applies the principle unreasonably to the prisoner’s

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factual situation.” Holley, 568 F.3d at 1098 (quoting Williams, 529 U.S. at

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413).

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“The ‘unreasonable application’ clause requires the state decision to be

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more than incorrect or erroneous. The state court’s application of clearly

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established law must be objectively unreasonable.” Lockyer v. Andrade, 538

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U.S. 63, 75 (2003). Relief under § 2254(d)(1)’s “unreasonable-application

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clause” is available “if, and only if, it is so obvious that a clearly established

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rule applies to a given set of facts that there could be no ‘fairminded
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disagreement’ on the question.” Woodall, 134 S.Ct. at 1706-07 (quoting

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Richter, 562 U.S. at 103).

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“‘[C]learly established Federal law’ for purposes of § 2254(d)(1) includes

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only ‘the holdings, as opposed to the dicta, of [the Supreme] Court’s

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decisions.’” Woodall, 134 S.Ct. at 1702 (quoting Howes v. Fields, 565 U.S.

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499, 505 (2012)). “In other words, ‘clearly established Federal law’ under §

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2254(d)(1) is the governing legal principle or principles set forth by the

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Supreme Court at the time the state court renders its decision.” Lockyer, 538

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U.S. at 71-72. “Circuit precedent may not serve to create established federal

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law on an issue the Supreme Court has not yet addressed.” Holley, 568 F.3d

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at 1097. As such, “[i]f there is no Supreme Court precedent that controls a

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legal issue raised by a petitioner in state court, the state court’s decision

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cannot be contrary to, or an unreasonable application of, clearly-established

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federal law.” Stevenson v. Lewis, 384 F.3d 1069, 1071 (9th Cir. 2004).

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Federal courts review the last reasoned decision from the state courts.

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See Ylst v. Nunnemaker, 501 U.S. 797, 804-06 (1991); Hibbler v. Benedetti,

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693 F.3d 1140, 1146 (9th Cir. 2012). In deciding a state prisoner’s habeas

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petition, a federal court is not called upon to decide whether it agrees with

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the state court’s determination; rather, the court applies an extraordinarily

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deferential review, inquiring only whether the state court’s decision was

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objectively unreasonable. See Yarborough v. Gentry, 540 U.S. 1, 6 (2003);

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Medina v. Hornung, 386 F.3d 872, 877 (9th Cir. 2004).

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IV.

DISCUSSION

A. Claim One: Improper Joinder
In claim one, Petitioner claims he was denied his right to an impartial

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jury, a fair trial, and due process when the trial court denied his motion to

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sever the two sets of charges: the 2009 murder and attempted murder and
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the 2011 domestic violence incident. (ECF No. 1 at 37, 43).

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1. State Court Opinion

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Petitioner raised claim one in his petition for review to the state

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appellate and supreme courts. (ECF Nos. 16-37, 16-41). The appellate court

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denied Petitioner’s claim on the merits and the California Supreme Court

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denied the petition without comment or citation to authority. (ECF Nos. 16-

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40, 16-42). Accordingly, this Court must “look through” to the state appellate

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court’s opinion denying the claim as the basis for authority. Ylst. 501 U.S. at

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805-06. That court wrote:

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Defendant first argues that the court erred in denying severance
under section 954 during the pretrial proceedings. Defendant then
argues that, even if the court did not err in denying severance, he
nonetheless suffered prejudice at trial as a result of the joinder of the
charges.
1. Defendant Did Not Meet His Burden of Establishing That the
Trial Court Abused its Discretion in Denying Severance
There is no issue on appeal with regard to whether the murder
counts and the domestic violence counts are “of the same class of crimes
or offenses” (§ 954), which means “ ‘ “offenses possessing common
characteristics or attributes.” ’ ” Defendant made no showing to the
contrary in his opening brief, the People persuasively argue that both
sets of charges are of the same class—namely, assault—and in reply
defendant concedes that they “are of the same class and permissibly
joined under section 954.”
We now turn to defendant's showing of prejudice in the context of
the four factors (1) whether the evidence from the domestic violence
counts would be cross–admissible in separate trials, (2) whether some of
the charges might inflame the jury, (3) whether the People joined a
weak case with a strong case to such an extent that a spillover effect
might affect the outcome, and (4) whether one of the joined charges is a
capital crime. Not all of these factors are of equal weight; we are to look
first whether the evidence is cross-admissible. If “ ‘ “evidence on each of
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the joined charges would have been admissible, under Evidence Code
section 1101, in separate trials on the others,” ’ ” then “ ‘ “any inference
of prejudice is dispelled.” ’ ” Thus, cross-admissibility of the evidence “
‘suffices to negate prejudice’ ” without a further showing.
Here, the court did not abuse its discretion in ruling that, because
Duenas was a critical witness on the murder counts and thus her
credibility would be at issue, the evidence relating to the domestic
violence counts was “inextricably intertwined” with the evidence on the
murder counts. Because neither side submitted evidence in support of
or in opposition to either the written or oral motion, the court
necessarily relied on argument.
In the written opposition, the People argued:

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“[E]vidence of Defendant Gutierrez['s domestic violence] attack on
Ms. Duenas would be independently relevant to the murder
charges insofar as it explains why Ms. Duenas revealed what she
knew to the police nearly 2 ½ years after [the shooting] occurred.
Furthermore, the crimes from 2011 would be independently
relevant to fully explain and justify the witness protection efforts
made and resources expended on Ms. Duenas.”

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Consistently, at the hearing, the district attorney orally argued:

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“[E]vidence of Merith Duenas's violence at the hands of defendant
Gutierrez will come in in [sic] a trial on [the murder counts].... It
is and can only be described as significantly relevant to her state
of mind both at the time she was making the statement to the cops
immediately following her report of injury done to her by
defendant Gutierrez, as well as highly relevant to her fear of him,
her state of mind now as she testifies, and her potential prejudices
or biases against him.”
“This is a case in which her testimony ... will be carefully
scrutinized by the jury.... [T]hey will wonder what made her do
this so far after the event. She did not immediately report. This
occurred two years after she should have reported. Why did she
all of a sudden report? Why should we believe her now that she's
coming forward and talking to the police?”
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“And that question can only be answered and the jury can only be
fairly apprised of the actual circumstances if, in fact, ... the [jury
that hears the murder charges ] learns of the circumstances of her
discussion with the police on August 15, 2011, which is after she
was attacked by defendant Gutierrez.”
Significantly, defendant does not argue that this showing was
inadequate to establish the cross–admissibility of the evidence of the
domestic violence. Rather, he argues only that the premise of the
People's argument—namely, that Duenas did not come forward for two
and a half years because of her fear of violence by defendant—was
faulty. Relying on Duenas's recorded interview with the police on
August 15, 2011 (the date of the domestic violence), defendant explains
that Duenas did not come forward after the shooting because she feared
she would be charged and sent to prison, not because she was afraid of
defendant. On appeal, defendant quotes from portions of Duenas's
recorded interview that support his contention on appeal. Defendant's
argument fails for two reasons. First, the parties did not submit the
transcript to the trial court with their written submissions, and there is
no indication that the court otherwise had before it Duenas's recorded
interview, yet we must review the court's decision based only on what it
knew at the time of the ruling. Moreover, even if we assume the court
had read and considered the recorded interview, in addition to those
portions on which defendant relies, Duenas's statement also contains
substantial evidence in support of the court's ruling on crossadmissibility—namely, Duenas's genuine concern for her safety and
that of her child, and specifically her fear of defendant, given his violent
behavior toward her.
Having found no abuse of discretion in the trial court's ruling in
response to defendant's written pretrial motion, we next consider
defendant's renewed motion to sever. Defendant orally renewed his
motion during the in limine proceedings at which the court decided
whether uncharged acts of domestic violence against Duenas would be
admissible under Evidence Code section 1109. Following the hearing,
the court issued a written ruling, allowing evidence of three uncharged
acts, disallowing two uncharged acts, and ruling as following on
defendant's renewed request to sever:

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“The court does not believe that the foregoing ruling on the
admissibility of [the evidence on the three] uncharged acts [ ]
going to [the domestic violence counts] materially changes its
previous analysis and ruling on the earlier motion to sever these
counts. An appropriate limiting instruction is invited, and it
seems highly likely that the trial of [the murder counts], even if
severed, would involve evidence of the tumultuous relationship
between Merith Duenas and defendant.”
We agree. The admissibility of three uncharged acts of domestic
violence, especially with an appropriate limiting jury instruction, does
not change the court's earlier ruling that the evidence of domestic
violence was “inextricably intertwined” with the evidence on the murder
counts and, thus, cross–admissible. Once again, the court did not abuse
its discretion.
Because the court properly determined, on the pretrial record
before it, that the evidence in support of the domestic violence counts
would be admissible against defendant in a separate trial on the
murder counts, we are satisfied that “ ‘ “any inference of prejudice is
dispelled.” ’ ” Accordingly, we need not consider the other three factors
that may establish prejudice.
For these reasons, defendant did not meet his burden of
establishing error in the denial of the motions to sever.
2. Defendant Did Not Meet His Burden of Establishing Prejudice
at Trial
Defendant argues that, even if the trial court did not err in
denying his pretrial requests to sever the murder counts from the
domestic violence counts, the joinder of the charges at trial resulted in
prejudice—i.e., “ ‘ “in gross unfairness depriving [the] defendant of due
process,” ’ ” quoting from Soper, supra, 45 Cal.4th at page 783. In so
arguing, defendant again focuses on strength of the evidence in support
of the domestic violence charges, including the evidence of the
uncharged acts of violence admitted pursuant to Evidence Code section
1109, and on what he contends is the weakness of the evidence in
support of the murder charges. We are not convinced.

27
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For purposes of this analysis, we must assume that the evidence
in support of the domestic violence charges would not have been
admissible in a separate trial on the murder charges. In so doing,
however, there will be no prejudicial effect from the joinder of charges “ ‘
“when the evidence of each crime is simple and distinct, even though
such evidence might not have been admissible in separate trials.” ’ ”
Even without consideration of defendant's acts of domestic
violence, the evidence of defendant's guilt of murder of Podhorsky and
attempted murder of another was strong. Defendant had a
longstanding feud with Zamora; and defendant's gang, the S.K.A. gang,
did not get along with Zamora's (and Podhorsky's) gang, the W.K. gang.
After Zamora, Podhorsky and their friend returned to the Meza
residence, parked the Xterra in the driveway and were standing in the
front yard, five eyewitnesses saw defendant and Hernandez—each with
a gun—walk toward the Meza residence as gunshots were heard and
sparks of light were seen. One eyewitness saw defendant shoot his gun,
and another eyewitness was “pretty sure” she saw defendant shoot his
gun. When defendant and Hernandez returned to their car, Hernandez
had not fired his gun. As she stood in the front yard of the Meza
residence, Podhorsky was shot twice.
In contrast, defendant presented an alibi defense, the only
evidence of which came from defendant's 18–year–old brother (who was
13 at the time of the February 2009 shooting). The brother testified
that he and defendant shared a bedroom and that, when the brother
went to bed at 12:30 a.m., a few hours before Podhorsky's killing,
defendant was already in home in bed, and they woke up together at
around 5:00 a.m. a few hours after Podhorsky's killing. Although
defendant emphasizes that his brother's testimony was “compelling and
unimpeached” (and tells us all the reasons the prosecution witnesses
were not credible and how well they had been impeached on crossexamination), the jury was not required to give the brother's testimony
any special consideration (or the People's witnesses any less
consideration). The jury was instructed properly according to
CALCRIM No. 226, in part as follows: “You may believe all, or part or
none of any witness's testimony. Consider the testimony of each witness
and decide how much of it you believe.
In evaluating a witness's testimony you may consider anything
15
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that reasonably tends to prove or disprove the truth or accuracy of that
testimony. Among the factors that you may consider are these: [¶] ... [¶]
Was the witness's testimony influenced by a factor such as bias or
prejudice, a personal relationship with someone involved in the case, or
a personal interest in how the case is decided?”
Thus, the jury was entitled to consider the familial relationship
between defendant and his alibi witness in assessing the alibi defense
that defendant proffered through his brother's testimony.
In closing, defendant argues that the introduction of evidence of
domestic violence—both the charged acts and the uncharged acts—was
so prejudicial that it violated his federal constitutional rights to due
process, rendering the trial fundamentally unfair. “To prove a
deprivation of federal due process rights, [an appellant] must satisfy a
high constitutional standard to show that the erroneous admission of
evidence resulted in an unfair trial. ‘Only if there are no permissible
inferences the jury may draw from the evidence can its admission violate
due process.’ ” Defendant did not meet this high constitutional
standard.
Defendant contends that the jury was “not limited in the manner
they could consider the evidence of the charged counts of domestic
violence”—suggesting that a jury cannot be expected “to
compartmentalize the evidence ... when they are not told to do so.” We
disagree. In the trial of the murder counts, the jury could permissibly
infer from the evidence of the charged counts of domestic violence both
Duenas's credibility and the reason for her delay in reporting.
For the first time in his reply brief, in the context of the
uncharged acts of domestic violence and CALCRIM No. 852, defendant
contends that “the jury was told they [sic] could consider the domestic
violence to conclude that [defendant] had a propensity to commit acts
causing serious bodily injury, i.e. [,] murder and attempted murder, as
charged in counts 1 and 2.” Defendant forfeited this claim by not
raising it in his opening brief. In any event, we further reject the
argument on the basis that, in presenting it, defendant misrepresents
the record in describing what the jury was told insofar as considering
the uncharged acts of domestic violence. Contrary to defendant's
presentation quoted ante, the jury was told both that it could (but was
16
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1
2
3
4
5

not required to) consider the uncharged acts of domestic violence for
purposes of determining guilt in “counts 3, 4 and/or 5 as charged in this
case” and that it could “not consider this evidence for any other
purpose,” which includes the murder charges in counts 1 and 2. We
presume, and defendant does not argue otherwise, that the jury
understood and followed this instruction.
(ECF No. 16-40 at 12-20) (internal citations and footnotes omitted).

6

2. Summary of Arguments

7

Petitioner contends that the prejudicial misjoinder of charges deprived

8

him of due process. In doing so, Petitioner argues “[d]espite [Petitioner]’s

9

strong defense to the murder charges, the jury heard extensive, inflammatory

10

evidence of his abuse of Duenas—where his identity was uncontested—

11

tipping the scales in favor of conviction. Joinder deprived [Petitioner] of due

12

process, requiring reversal.” (ECF No. 1 at 48).

13

Respondent argues that the severance claim is not cognizable in habeas

14

corpus proceedings and that the claim was reasonably rejected by the state

15

court. (ECF No. 15-1 at 16, 17).

16

3. Legal Standard

17

“If there is no Supreme Court precedent that controls a legal issue

18

raised by a petitioner in state court, the state court’s decision cannot be

19

contrary to, or an unreasonable application of, clearly-established federal

20

law.” Stevenson, 384 F.3d at 1071. Moreover, “[t]he Supreme Court has

21

never held that a trial court’s failure to provide separate trials on different

22

charges implicates a defendant’s right to due process.” Hollie v. Hedgpeth,

23

456 Fed.Appx. 685, 685 (9th Cir. 2011).

24

4. Analysis

25

Although Petitioner provides numerous federal appellate cases to

26

support his argument, none are relevant simply because they are not

27

Supreme Court cases. (ECF Nos. 1, 21 at 37-48, 6-8). The only Supreme
17
Case No.: 17-cv-00438-MMA-MDD

1

Court precedent Petitioner provides is a footnote in United States v. Lane,

2

474 U.S. 438 (1986). (ECF Nos. 1, 21 at 43, 6). Petitioner cites footnote 8 in

3

Lane for the proposition that “misjoinder would rise to the level of a

4

constitutional violation only if it results in prejudice so great as to deny a

5

defendant his Fifth Amendment right to a fair trial.” (ECF No. 1 at 44).

6

Petitioner’s argument, however, fails as the Ninth Circuit has “found that the

7

statement in Lane regarding when misjoinder rises to the level of

8

constitutional violation was dicta[.]” Runningeagle v. Ryan, 686 F.3d 758,

9

776 (9th Cir. 2012). Consequently, the Lane decision is not “‘clearly

10

established Federal law’ sufficient to support a habeas challenge under §

11

2254.” Id. at 777.
Accordingly, the Court RECOMMENDS claim one be DENIED.

12
13

B. Claim Two: Insufficiency of Evidence & Improperly Admitted
Evidence

14

Petitioner raises two separate issues under claim two. Petitioner

15
16

contends that the evidence presented at trial was insufficient to prove

17

criminal street gang allegation pursuant to California Penal Code §

18

186.22(b)(1).1 (ECF No. 1 at 51). Petitioner also contends the admission of

19

gang evidence, specifically Detective Damon Sherman’s expert testimony

20

regarding gang evidence, so fatally infected the proceeding as to render them

21

fundamentally unfair, violating Petitioner’s right to a fair trial and due

22

process under the Fifth and Fourteenth Amendments.2 (ECF No. 1 at 49, 52).

23

Petitioner argues that Detective Sherman’s testimony should have been

24

excluded because its probative value is substantially outweighed by its

25
26
27

1
2

This issue will be referred to as “insufficiency of evidence claim”.
This issue will be referred to as “improperly admitted evidence claim”.
18
Case No.: 17-cv-00438-MMA-MDD

1

prejudicial effect. (Id. at 49, 51). Respondent has plead procedural default as

2

an affirmative defense to both of these claims. (ECF No. 15-1 at 18-19).
As will be discussed below, the insufficiency of evidence claim requires

3
4

only a procedural default analysis while the improperly admitted evidence

5

claim requires both a procedural default analysis and an analysis on the

6

merits.

7

1. State Court Opinion

8

Petitioner raised both claims in his habeas petitions to the state

9

superior, appellate, and supreme courts. (ECF Nos. 16-43, 16-45, 16-47).

10

Both the superior and appellate courts denied Petitioner’s claims on the

11

merits. (ECF Nos. 16-44, 16-46). The California Supreme Court denied the

12

petition without comment or citation to authority. (ECF No. 16-48).

13

Accordingly, this Court must again “look through” to the state appellate

14

court’s order denying the claims as the basis for authority. Ylst, 501 U.S. at

15

805-06. That court wrote:

16

Gutierrez now raises four new contentions challenging his conviction.
First, he contends the trial court allowed evidence concerning his gang
affiliation to be admitted despite its prejudicial nature. This claim is
not cognizable at this stage because the writ of habeas corpus does "not
lie to review questions concerning the admissibility of evidence." (In re
Harris (1993) 5 Cal.4th 813,826; accord, In re Lindley (1947) 29 Cal.2d
709, 723.)

17
18
19
20
21

Second, Gutierrez claims the evidence was insufficient to support the
gang allegations. Just as with his first contention, "claims of the
insufficiency of evidence to support [his] conviction[s] are not cognizable
in a habeas corpus proceeding." (In re Reno (2012) 55 Cal.4th 428, 505.)

22
23
24
25

(ECF No. 16-46).

26

///

27

///
19
Case No.: 17-cv-00438-MMA-MDD

1

2. Legal Standard - Procedural Default

2

Under the procedural default doctrine, federal habeas review of a

3

federal claim “is barred unless the petitioner can demonstrate cause for

4

procedural default and actual prejudice, or demonstrate that the failure to

5

consider the claims will result in a fundamental miscarriage of justice.”

6

Bennett v. Mueller, 322 F.3d 573, 580 (9th Cir. 2003) (internal quotations

7

omitted).

8
9

The procedural default doctrine prohibits federal court review of state
court rulings where: (1) the petitioner violated an applicable state procedural

10

rule, Coleman, 501 U.S. at 750; (2) the procedural violation is “an adequate

11

and independent state law basis on which the state court can deny”

12

petitioner’s federal constitutional claim, Bennett, 322 F.3d at 580; (3) the

13

highest state court “clearly and expressly rel[ied]” on the procedural default,

14

Coleman, 501 U.S. at 735; and (4) the state “adequately ple[a]ds the existence

15

of an independent and adequate state procedural ground as an affirmative

16

defense,” Bennett, 322 F.3d at 586.

17

If the state adequately pleads the affirmative defense, “the burden to

18

place that defense in issue shifts to the petitioner.” Id. “The petitioner may

19

satisfy this burden by asserting factual allegations that demonstrate the

20

inadequacy of the state procedure, including citation to authority

21

demonstrating inconsistent application of the rule.” Id.

22
23

a. The Insufficiency of Evidence Claim is Procedurally
Defaulted.

24

Here, Respondent has plead procedural default as an affirmative

25

defense to Petitioner’s insufficiency of evidence claim. (ECF No. 15-1 at 18-

26

19). Respondent observes the court of appeal held that Petitioner’s

27

“sufficiency-of-the-evidence claim w[as] not cognizable in habeas corpus
20
Case No.: 17-cv-00438-MMA-MDD

1

proceedings under California law.” (Id. at 19).

2

The court of appeal clearly and expressly relied on In re Reno which

3

reiterated the Lindley rule. (ECF No. 16-46 at 1). See Carter v. Giurbino,

4

385 F.3d 1194, 1196 (9th Cir. 2004) (“Lindley stands for the California rule

5

that a claim of insufficiency of evidence can only be considered on direct

6

appeal, not in the habeas proceedings.”). Additionally, Respondent stated

7

that the Lindley rule is “adequate and independent,” citing Carter. (ECF No.

8

15-1 at 20). See Carter, 385 F.3d at 1196 (“Because the California Supreme

9

Court actually relied on Lindley, an independent and adequate state

10

procedural bar, the district court correctly held that Carter’s sufficiency of the

11

evidence claims were procedurally defaulted.”). Absent from the Petition are

12

any arguments or allegations that attempt to demonstrate: (1) the

13

inadequacy of the rule; (2) the inconsistent application of the rule; (3) that

14

there is cause and prejudice for the default; or (4) that the failure to consider

15

the claim will result in a fundamental miscarriage of justice.
Because Respondent has shown that the highest state court clearly and

16
17

expressly relied on the Lindley rule as an adequate and independent state

18

ground to bar Petitioner’s federal constitutional claim, Respondent has

19

satisfied the burden of adequately pleading procedural default as an

20

affirmative defense. Further, because Petitioner failed to demonstrate that

21

the bar is inadequate or inconsistently applied, that there is cause and

22

prejudice for the default, or that there is a fundamental miscarriage of

23

justice, Petitioner has not satisfied his burden to overcome the affirmative

24

defense.
Accordingly, the Court RECOMMENDS the insufficiency of evidence

25
26

claim be DENIED.

27

///
21
Case No.: 17-cv-00438-MMA-MDD

b. The Improperly Admitted Evidence Claim is Not

1

Procedurally Defaulted.

2

Respondent has plead procedural default as an affirmative defense to

3
4

Petitioner’s improper admission of evidence claim. (ECF No. 15-1 at 18-19).

5

The court of appeal held that Petitioner’s admissibility-of-evidence claim is

6

not cognizable because habeas corpus does not extend to reviewing questions

7

concerning the admissibility of evidence. (ECF No. 16-46 at 1). The court of

8

appeal cited In re Harris and In re Lindley. (Id.). Respondent claims that,

9

under In re Harris and In re Lindley, this bar is “adequate and independent”

10

citing Carter. (Id.). Beyond citing Carter, Respondent does not demonstrate

11

this bar is actually adequate and independent.
As discussed above, Carter only held that the Lindley rule regarding

12
13

insufficiency of evidence was an independent and adequate procedural state

14

bar. See Carter, 385 F.3d at 1196 (“Because the California Supreme Court

15

actually relied on Lindley, an independent and adequate state procedural

16

bar, the district court correctly held that Carter’s sufficiency of the evidence

17

claims were procedurally defaulted.”). Carter does not hold that the

18

procedural state bar for claims of admissibility of evidence is an adequate and

19

independent state procedural ground.

20

Accordingly, Respondent has failed to prove the independent and

21

adequate elements of the procedural default doctrine, and therefore fails to

22

adequately plead procedural default for Petitioner’s improperly admitted

23

evidence claim. Accordingly, the Court will next address the merits of the

24

claim.

25

///

26

///

27

///
22
Case No.: 17-cv-00438-MMA-MDD

1

3. Legal Standard – Improper Admission of Evidence

2

“Under AEDPA, even clearly erroneous admissions of evidence that

3

render a trial fundamentally unfair may not permit the grant of federal

4

habeas corpus relief if not forbidden by ‘clearly established Federal law, as

5

laid out by the Supreme Court.” Holley, 568 F.3d at 1101 (quoting 28 U.S.C.

6

§ 2254(d)). “If there is no Supreme Court precedent that controls a legal

7

issue raised by a petitioner in state court, the state court’s decision cannot be

8

contrary to, or an unreasonable application of, clearly-established federal

9

law.” Stevenson, 384 F.3d at 1071.

10

a. Analysis

11

“The Supreme Court has made very few rulings regarding the

12

admission of evidence as a violation of due process” and “has not yet made a

13

clear ruling that admission of irrelevant or overtly prejudicial evidence

14

constitutes a due process violation sufficient to warrant issuance of the writ.”

15

Holley, 568 F.3d at 1101 (quoting 28 U.S.C. § 2254(d)). Additionally, the

16

Supreme Court has not held that due process is violated by “the admission of

17

expert testimony concerning an ultimate issue to be resolved by the trier of

18

fact.” Moses v. Payne, 555 F.3d 742, 761-62 (9th Cir. 2009); see also Briceno v.

19

Scribner, 555 F. 3d 1069, 1078 (9th Cir. 2009) (“Our recent decision in Moses

20

forecloses” the claim that trial court deprived petitioner of due process and

21

fair trial when it admitted a gang expert’s testimony that crimes in question

22

were gang-related, “as it holds that there is no clearly established

23

constitutional right to be free of an expert opinion on an ultimate issue.”),

24

overruled on other grounds as recognized in, Emery v. Clark, 643 F.3d 1210,

25

1215 (9th Cir. 2011).

26
27

Because of the absence of Supreme Court precedent controlling the legal
issue raised by Petitioner in state court, the state court’s ruling was not
23
Case No.: 17-cv-00438-MMA-MDD

1

contrary to, or an unreasonable application of, clearly established Federal

2

law.

3

Accordingly, the Court RECOMMENDS the improperly admitted

4

evidence claim be DENIED.

5

C. Claim Three: Ineffective Assistance of Trial Counsel

6

Petitioner contends in claim three that he received ineffective

7

assistance of counsel because his trial counsel: (1) failed to consult an expert

8

toxicologist; (2) failed to object to the admission of a text message into

9

evidence; and (3) failed to call certain witnesses. (ECF No. 1 at 53-56).

10

1. State Court Opinion

11

Petitioner raised claim three in his habeas petitions to the state

12

superior, appellate, and supreme courts. (ECF Nos. 16-43, 16-45, 16-47).

13

Both the superior and appellate courts denied Petitioner’s claim on the

14

merits. (ECF Nos. 16-44, 16-46). The California Supreme Court denied the

15

petition without comment or citation to authority. (ECF No. 16-48).

16

Accordingly, this Court again “looks through” to the state appellate court’s

17

order denying the claims as the basis for authority. Ylst, 501 U.S. at 805-06.

18

That court wrote:

19
20
21
22
23
24
25
26
27

Third, Gutierrez claims his trial counsel was ineffective for failing to
find an expert toxicologist, failing to object to the introduction of a text
message, and failing to call two witnesses. To establish ineffective
assistance of counsel, Gutierrez must demonstrate deficient
performance and prejudice under an objective standard of reasonable
probability of an adverse effect on the outcome. (People v. Waidla
(2000) 22 Cal.4th 690, 718.)
To establish ineffective assistance of counsel for failure to investigate
potential evidence for a trial, like finding an expert witness, a petitioner
“must establish the nature and relevance of the evidence that counsel
failed to present or discover.” (People v. Williams (1988) 44 Cal.3d 883,
24
Case No.: 17-cv-00438-MMA-MDD

937.) Further, the defendant “must carry his burden of proving
prejudice as a ‘demonstrable reality,’ not simply speculation as to the
effect of the errors or omissions of counsel.” (Ibid.) Here, Gutierrez
simply presents conclusory and speculative assumptions about what a
toxicologist might have testified about, with no actual evidence that
such expert opinion testimony could be elicited.

1
2
3
4
5

With the other two witnesses, Gutierrez provides declarations
consisting of their potential testimony, but both declarations provide
only vague standards that do not suggest, even if these witnesses had
testified at trial, that there is a reasonable probability of any effect on
the outcome of trial. Similarly, even assuming it was error to not object
to the introduction of a text message, it is not reasonably probable that
counsel’s failure to object prejudiced Gutierrez.

6
7
8
9
10
11

(ECF No. 16-46 at 2).

12

2. Legal Standard

13

The clearly established United States Supreme Court law governing

14

ineffective assistance of counsel claims is set forth in Strickland v.

15

Washington, 466 U.S. 668 (1984). See Baylor v. Estelle, 94 F.3d 1321, 1323

16

(9th Cir. 1996) (stating that Strickland “has long been clearly established

17

federal law determined by the Supreme Court of the United States”). In

18

order to be granted habeas relief for a claim of ineffective assistance of

19

counsel, Petitioner must show both that “[1] his counsel provided deficient

20

assistance and [2] that there was a prejudice as a result.” Richter, 562 U.S.

21

at 104. “[A] court need not determine whether counsel’s performance was

22

deficient before examining the prejudice suffered by the defendant as a result

23

of the alleged deficiencies.” Strickland, 466 U.S. at 697. “If it is easier to

24

dispose of an ineffectiveness claim on the ground of lack of sufficient

25

prejudice, which we expect will often be so, that course should be followed.”

26

Id.

27

To establish deficient performance, Petitioner “must show that
25
Case No.: 17-cv-00438-MMA-MDD

1

‘counsel’s representation fell below an objective standard of reasonableness.’”

2

Richter, 562 U.S. at 104 (2011) (quoting Strickland, 466 U.S. at 688). “A

3

court considering a claim of ineffective assistance must apply a ‘strong

4

presumption’ that counsel’s representation was within the ‘wide range’ of

5

reasonable professional assistance.” Id. “The [Petitioner]’s burden is to show

6

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

7

“counsel” guaranteed the defendant by the Sixth Amendment.’” Id. at 104

8

(quoting Strickland, 466 U.S. at 687).
“With respect to prejudice, [Petitioner] must demonstrate ‘a reasonable

9
10

probability that, but for counsel’s unprofessional errors, the result of the

11

proceeding would have been different. A reasonable probability is a

12

probability sufficient to undermine the confidence in the outcome.’” Id. at

13

104 (quoting Strickland, 466 U.S. at 694). “It is not enough ‘to show that the

14

errors had some conceivable effect on the outcome of the proceeding.’” Id.

15

(quoting Strickland, 466 U.S. at 693). “Counsel’s errors must be ‘so serious

16

as to deprive the defendant of a fair trial, a trial whose result is reliable.’” Id.

17

(quoting Strickland, 466 U.S. at 687). Consequently, “a court making the

18

prejudice inquiry must ask if the [Petitioner] has met the burden of showing

19

that the decision reached would reasonably likely have been different absent

20

the errors.” Strickland, 466 U.S. at 696. “In making this determination, a

21

court hearing an ineffectiveness claim must consider the totality of the

22

evidence before the judge or jury.” Id. at 695.

23

///

24

///

25

///

26

///

27

///
26
Case No.: 17-cv-00438-MMA-MDD

1
2
3

3. Analysis
a. Failure to Obtain Expert Toxicologist
Petitioner argues that, because three of the state’s witnesses

4

(Raymundo Hernandez, Jesus Vargas, and Merith Duenas) testified to using

5

drugs, trial counsel’s failure to obtain an expert toxicologist to testify to the

6

drug’s cognitive effects rendered trial counsel ineffective. (ECF No. 1 at 53-

7

54). Furthermore, Petitioner argues expert toxicologist testimony was

8

necessary to “make clear why there were so many inconsistencies and the

9

credibility, if any, of the [state’s] witnesses.” (Id. at 54). Petitioner alleges

10

the absence of an expert toxicologist “allowed [the] prosecutor to present

11

uncontested testimony, which deprived petitioner of effective assistance of

12

counsel and due process.” (Id.).

13

The record neither supports Petitioner’s allegation that these witnesses

14

presented uncontested testimony, nor does it demonstrate a necessity for an

15

expert to explain the impact drugs and alcohol had on the state’s witnesses.

16

In fact, Jesus Vargas explicitly testified on direct examination that his

17

inability to remember what happened on the night of the shooting was

18

because he was drunk. (ECF No. 16-25 at 148). On more than one occasion

19

during cross examination, Petitioner’s trial counsel elicited testimony from

20

Vargas that, while he did not know how much he drank, his inability to

21

remember many of the details from the night was because he was “pretty

22

wasted.” (Id. at 783-788). Merith Duenas testified regarding the impact

23

ecstasy has on her. (ECF No. 16-24 at 411-412). Raymundo Hernandez was

24

questioned on both direct and cross examination about his drug use and

25

inconsistencies in the statements he made at trial with statements that he

26

made before trial. (ECF No. 16-27 at 142, 186).

27

As such, trial counsel’s failure to call an expert toxicologist is not
27
Case No.: 17-cv-00438-MMA-MDD

1

deficient performance as the jury would have been capable of evaluating the

2

witnesses’ testimony without an expert’s opinion. Even assuming Petitioner

3

did establish deficient performance, Petitioner fails to demonstrate, in light of

4

the testimony from Hernandez, Vargas, and Duenas, a reasonable probability

5

that an expert toxicologist’s testimony would have affected the jury verdict.

6

Because Petitioner fails to demonstrate both how trial counsel’s decision

7

to not obtain the testimony of an expert toxicologist constituted deficient

8

performance and how obtaining such testimony would have changed the

9

result of the proceeding, Petitioner fails to satisfy both prongs of the

10
11
12
13

Strickland test.
Accordingly, the state court’s application of clearly established federal
law was not objectively unreasonable.
b. Failure to Object to Text Message

14

Petitioner argues that failure to object to the introduction of a

15

threatening text message, from Petitioner to Duenas, “rendered counsel

16

ineffective”, (ECF Nos. 1, 21 at 54, 11), and “was also prejudicial.” (ECF No.

17

1 at 54). In his Traverse, Petitioner argues “[t]his was a threatening text

18

message and Petitioner was cnvicted [sic] for criminal threats. Counsel’s

19

failure to object rendered herself ineffective.” (ECF No. 21 at 11).

20

Respondent argues Petitioner’s “contention that Investigator

21

Syzmonik’s reference to a threatening text message was grounds for a

22

mistrial is without merit.” (ECF No. 15-1 at 27). In doing so, Respondent

23

contends:

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25
26
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“[I]n light of the context of Investigator’s Syzmonik’s testimony, that is,
Merith Duenas’ placement in the witness protection program because of
her fear of [Petitioner], mention of a text message was of no moment.
This was particularly true because the jury heard the details of
[Petitioner]’s violent treatment of Duenas, including his pulling a knife
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and threatening to kill her, and when his attempt to stab her was foiled,
he knocked her to the ground, put his knee on her chest, and choked
her. The mention of a generically threatening text message could not
have been prejudicial.”

1
2
3
4
5

(Id.).
Although Investigator Syzmonik testified Duenas was placed in the

6

witness protection program because Duenas received a threatening text

7

message, Investigator Syzmonik did not testify about who sent the message

8

or what the message specifically said. (ECF. No. 16-22 at 154-156).

9

Assuming the failure to object was in error, Petitioner fails to demonstrate

10

that but for counsel’s failure to object, the result of the proceeding would have

11

been different. Petitioner has failed to establish how mention of the text

12

message, without mentioning that Petitioner sent the text or the contents of

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the text, prejudiced Petitioner.

14

Because Petitioner has not demonstrated a reasonable probability that

15

the result of the proceeding would have been different if trial counsel had

16

objected to the testimony, Petitioner has failed to satisfy the prejudice prong

17

of the Strickland test.

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19
20
21

Accordingly, the state court’s application of clearly established federal
law was not objectively unreasonable.
c. Failure to Call Witnesses
Petitioner also claims failure to call two witnesses, Jesus Osorio

22

Ramirez and Cesar Rivera, “rendered counsel ineffective and prejudiced

23

petitioner’s defense.” (ECF No. 1 at 55). In support of this claim, Petitioner

24

submits declarations from each person. (Id. at 62-66).

25

Respondent contends this claim should be denied since the state court’s

26

rejection of this claim was in accord with and a reasonable application of

27

clearly established federal law. (ECF No. 15-1 at 27). Respondent argues
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1

that Petitioner’s “self serving assertions fail to meet his burden to overcome

2

the strong presumption that trial counsel’s conduct fell within the wide range

3

of reasonable professional assistance.” (Id.).

4

To establish prejudice caused by the failure to call a witness, Petitioner

5

must show that “the witness was likely to have been available to testify; that

6

the witness would have given the proffered testimony; and that the

7

witnesses’ testimony would have created a reasonable probability that the

8

jury would have reached a verdict more favorable to the Petitioner.” Mitchell

9

v. Ayers, 309 F.Supp.2d 1146, 1155 (N.D.Cal.2004) (citing Alcala v. Woodford,

10

334 F.3d 862, 872-73 (9th Cir. 2003)).
i. Mr. Ramirez

11
12

Petitioner argues that Mr. Ramirez, Petitioner’s father, would have

13

impeached Raymundo Hernandez’s testimony about events that occurred

14

shortly before the shooting on the February 2009 shooting. As the trial court

15

noted:

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“The declaration of Mr. Ramirez describes a sequence of events that
occurred shortly before the February 2009 shooting, but it contains no
description of events during the time period when the shooting
occurred. Assuming everything in this declaration is true, it would not
point to Petitioner’s innocence. The declaration does not contradict the
evidence presented at trial that indicated that the shooting occurred
sometime after the sequence of events described by Mr. Ramirez.”
(ECF No. 16-44 at 5) (emphasis added).
Additionally, Petitioner fails to satisfy his burden of showing the

23

witness would have given the proffered testimony. Mr. Ramirez’s declaration

24

does not state what Petitioner claims Mr. Ramirez would testify about.

25

While the Traverse states Mr. Ramirez would testify that Mr. Ramirez was

26

the “good samaritan who stopped Mr. Hernandez and another from beating

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Ms. Podhorsky,” Mr. Ramirez’s declaration does not state that he stopped any
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1

altercation. (ECF Nos. 21 at 10, 16-43 at 42). Rather, it states that Mr.

2

Ramirez was “in front of his house” when he saw “[t]he girl who lied on the

3

floor after being kicked and punched various times stood up and ran with

4

everybody else[.]” (ECF No. 16-43 at 42). As such, it cannot be established

5

that Mr. Ramirez would have given the proffered testimony.

6

In short, the declaration has minimal probative value, if any.

7

Therefore, Petitioner has failed to demonstrate that the testimony would

8

have created a reasonable probability that the jury would have reached a

9

verdict more favorable to Petitioner. Accordingly, because Petitioner has

10

failed to satisfy the prejudice prong of the Strickland test, the state court’s

11

application of clearly established federal law was not objectively

12

unreasonable.

13

ii.

Mr. Rivera

14

Petitioner also argues that Mr. Rivera would have impeached the

15

testimony of Merith Duenas, Leslie Lepe, and Bethany Fletcher. (ECF No. 1

16

at 55). Mr. Rivera’s testimony, Petitioner claims, “would also show that,

17

state witnesses, Bethany Fletcher, Merith Duenas, and Leslie Lepe,

18

fabricated their stories in order to incriminate petitioner.” (Id.). Petitioner

19

submitted a declaration from Mr. Rivera. (Id. at 66). The declaration

20

Petitioner submitted to this court and to the court of appeal, however, is not

21

the same declaration he submitted to the state superior court. (ECF Nos. 16-

22

45 at 49, 16-43 at 46). It appears that Petitioner was attempting to cure

23

what the superior court found to be defective in the declaration, such as the

24

date and time of the events described. (ECF No. 16-44 at 5) (“The declaration

25

has no reference to date or time, therefore there is no way of knowing if the

26

event described is the same event in which the domestic violence occurred.”).

27

The description of events in the new declaration expressly contradict
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1

the events as described in the first. The first declaration states that

2

“Meredith [sic] walked out of the apartment pulling Rolando by his jean’s belt

3

loop. She was being hysterical and threatening about the camera. They

4

made their way to the middle of the street until Rolando threw the camera

5

far away so we could leave while she was getting it.” (ECF No. 16-43 at 46).

6

The second declaration states “Rolando came out running from the apartment

7

with Merith chasing behind him and hitting[.] With all the hits Rolando

8

dropped the camera and got into my vehicle and we left. Another person who

9

can declare or be a witness to this is Merith Duenas friend who was running

10
11

behind both Rolando and Merith.” (ECF 1 at 66).
As Petitioner’s declarations contradict each other, Petitioner has not

12

met his burden. Petitioner has not shown that: (1) the witness would have

13

given the proffered testimony; and (2) the testimony would have created a

14

reasonable probability that the jury would have reached a verdict more

15

favorable to the Petitioner. Because Petitioner has failed to satisfy the

16

prejudice prong of the Strickland test, the state court’s application of clearly

17

established federal law was not objectively unreasonable.

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19
20

Accordingly, the Court RECOMMENDS claim three be DENIED.
D. Claim Four: Ineffective Assistance of Counsel on Appeal
Petitioner contends in claim four that he received ineffective assistance

21

of counsel on appeal because his appellate counsel did not raise the

22

aforementioned ineffective assistance of trial counsel claims on appeal. (ECF

23

No. 1 at 57-58).

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1. State Court Opinion

25

Petitioner raised claim four in his petitions to the state superior,

26

appellate, and supreme courts. (ECF Nos. 16-43, 16-45, 16-47). Both the

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superior and appellate courts denied Petitioner’s claim on the merits. (ECF
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1

Nos. 16-33, 16-46). The California Supreme Court denied the petition

2

without comment or citation to authority. (ECF No. 16-48). Accordingly, this

3

Court must “look through” to the state appellate court’s order denying the

4

claim as the basis for authority. Ylst, 501 U.S. at 805-06. After analyzing

5

Petitioner’s ineffective assistance of trial counsel claim, that court wrote:

6
7
8
9

Finally, Gutierrez claims his appellate counsel was ineffective for
failing to raise these same issues on direct appeal. As discussed above,
the claims are not meritorious such that any failure to raise these
issues could not have prejudiced Gutierrez.
(ECF No. 16-46 at 2).

10

2. Summary of Arguments

11

Petitioner contends that he received ineffective assistance of counsel on

12

appeal because his appellate counsel did not raise the aforementioned

13

ineffective assistance of trial counsel claims. (ECF No. 1 at 57-58).

14

Respondent contends the state court’s rejection of this claim was in

15

accord with and a reasonable application of clearly established federal law,

16

and should be denied. (ECF No. 15-1 at 29). Respondent argues appellate

17

counsel could not have been ineffective for failing to raise the complained-of

18

issues on appeal because trial counsel was not ineffective. (Id.).

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3. Legal Standard

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“[T]o determine whether appellate counsel’s failure to raise these claims

21

was objectively unreasonable and prejudicial, we must first assess the merits

22

of the underlying claims that trial counsel provided constitutionally deficient

23

representation.” Moormann v. Ryan, 628 F.3d 1102, 1106-1107 (9th Cir.

24

2010). “If trial counsel’s performance was not objectively unreasonable or did

25

not prejudice [Petitioner], then appellate counsel did not act unreasonably in

26

failing to raise a meritless claim of ineffective assistance of counsel, and

27

[Petitioner] was not prejudiced by appellate counsel’s omission.” Moormann,
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1

628 F.3d at 1107.

2

4. Analysis

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As discussed above, trial counsel’s performance did not prejudice

4

Petitioner. As such, appellate counsel did not act unreasonably in failing to

5

raise a meritless claim of ineffective assistance of counsel, and Petitioner was

6

not prejudiced by appellate counsel’s omission. Therefore, because Petitioner

7

failed to establish the prejudice prong under the Strickland test, the state

8

court’s application of clearly established federal law was not objectively

9

unreasonable.

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11
12

Accordingly, the Court RECOMMENDS claim four be DENIED.
E. Evidentiary Hearing
Petitioner requests an evidentiary hearing. (ECF No. 1 at 15).

13

Petitioner argues an evidentiary hearing is required to explore the issues in

14

this instant petition and failure to order an evidentiary hearing will result in

15

a miscarriage of justice. (Id.). Petitioner contends the hearing is needed to

16

explore the facts and determine if his conviction was obtained through

17

constitutional violations. (ECF No. 21 at 12).

18

Respondent argues Petitioner’s demand for an evidentiary hearing

19

should be denied because Petitioner has not identified what facts are in

20

dispute that an evidentiary hearing would resolve. (ECF No. 15-1 at 29).

21

1. Legal Standard

22

A federal court’s discretion to hold an evidentiary hearing is governed

23
24
25
26
27

by 28 U.S.C. § 2254(e)(2), which provides:
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
34
Case No.: 17-cv-00438-MMA-MDD

1
2
3
4
5
6
7

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.
“Federal courts sitting in habeas are not an alternative forum for trying

8

facts and issues which a prisoner made insufficient effort to pursue in state

9

proceedings.” Williams v. Taylor, 529 U.S. 420, 437 (2000).

10

2. Analysis

11

Petitioner does not establish that his request relies on a new rule of

12

constitutional law, or a factual predicate that could not have been previously

13

discovered through due diligence. Similarly, Petitioner has not alleged facts

14

that would be sufficient to establish by clear and convincing evidence that but

15

for constitutional error, no reasonable factfinder would have found him guilty

16

of the underlying offense.

17
18

Accordingly, the Court RECOMMENDS Petitioner’s request for an
evidentiary hearing be DENIED.
V.

19
20

CONCLUSION

For the foregoing reasons, IT IS HEREBY RECOMMENDED that the

21

District Judge issue an Order: (1) approving and adopting this Report and

22

Recommendation, (2) directing that Judgment be entered DENYING the

23

Petition.

24

IT IS HEREBY ORDERED that no later than February 23, 2018,

25

any party to this action may file written objections with this Court and serve

26

a copy on all parties. The document should be captioned “Objections to

27

Report and Recommendation.”
35
Case No.: 17-cv-00438-MMA-MDD

1

IT FURTHER ORDERED that any reply to the objections shall be

2

filed with the Court and served on all parties no later than March 2, 2018.

3

The parties are advised that failure to file objections within the specified time

4

may waive the right to raise those objections on appeal of the Court’s order.

5

See Turner v. Duncan, 158 F.3d 449, 455 (9th Cir. 1998).

6
7

IT IS SO ORDERED.
Dated: January 24, 2018

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Case No.: 17-cv-00438-MMA-MDD