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United States District Court, N.D. California

March 31, 2004.

SUSAN L. HUBBARD, Respondent

The opinion of the court was delivered by: WILLIAM HASKELL ALSUP, District Judge


This is a habeas corpus case filed by a state prisoner pursuant to 28 U.S.C. § 2254. The court ordered respondent to show cause why the writ should not be granted. Respondent has filed an answer and a memorandum of points and authorities in support of it, and has lodged exhibits with the court. Petitioner has responded with a traverse. The matter is submitted.


  Petitioner was convicted by a jury of battery and carjacking. He was sentenced to prison for eleven years. As grounds for habeas relief he asserts that: (1) his due process rights were violated because the carjacking statute is vague; and (2) his Miranda*fn1 rights were violated.

  Petitioner does not dispute the following facts, which are taken from the opinion of the California Court of Appeal.

  Appellant was convicted of battering and taking a car from a young man named Raymond Nadonza. Page 2


Appellant had known Nadonza for many years. He was friends with Nadonza's father Wilfredo, and when Nadonza was about 13 years old, appellant left some guns with Wilfredo. A couple of years later, Nadonza took the guns, went to Mission Street in San Francisco, and sold them. Understandably, the incident upset appellant greatly.
Appellant's anger came to a head about eight years later. On May 14, 1998, Nadonza was at home with a friend named Racho when Nadonza saw appellant park his Mercedes near the garage. A woman was with appellant. Nadonza knew appellant wanted his guns back, so he closed the garage door, hid behind a couch, and told Racho to tell appellant that he was not at home.
Appellant came to the door and asked Racho about Nadonza. Racho said he was not at home. Appellant told Racho to have Nadonza contact him. Racho than left.
Appellant did not leave. Instead, he called to Nadonza and told him to come out. Nadonza did so. As soon as Nadonza emerged, appellant began punching him. He knocked Nadonza to the ground, picked up a tripod, and began to stab him. The legs on the tripod were equipped with small spikes and Nadonza sustained injuries to his hands and face.
Appellant told Nadonza to stand, and than to lie on the ground. At one point, appellant reached behind his back as if to pull out a gun. Appellant threatened to "blow [Nadonza's] brains out" and told him he was "going to spend the rest of [his] life in a cemetery/' Nadonza begged for mercy and told appellant that he was sorry. As appellant paced around the room, Nadonza told appellant he would get the guns back. Appellant said he would give Nadonza one week. Nadonza said he would only need two days.
Appellant picked up a set of keys that were on a table in the kitchen and asked who owned the car in the garage. Nadonza said it belonged to a friend. Appellant said he would take the car, a Honda, as collateral. He said that if Nadonza went to the police, he would kill him.
Appellant then left. Either he or the woman who was with him, drove the Honda away. Appellant was arrested near his home in San Francisco. later that same day.
Ex. 6 (opinion of court of appeal) at 1-2.


 A. Standard of review

  The petition in this case was filed after the effective date of the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA), so the provisions of that act apply to it. See Lindh v. Murphy, 521 U.S. 320, 327 (1997); Jeffries v. Wood. 114 F.3d 1484, 1499-1500 (9th Cir.), Page 3 cert. denied 522 U.S. 93 (1997) ("justice and judicial economy are better served by applying the Act to cases filed after the enactment date."). Under the AEDPA a district court may not grant a petition challenging a state conviction or sentence on the basis of a claim that was reviewed on the merits in state court unless the state court's 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). The first prong applies both to questions of law and to mixed questions of law and fact, Williams (Terry) v. Taylor, 529 U.S. 362, 407-09 (2001), while the second prong applies to decisions based on factual determinations, Miller — El v. Cockrell 123 S.Ct. 1029, 1041 (2003).

  A state court decision is "contrary to" Supreme Court authority, that is, falls under the first clause of § 2254(d)(1), only if "the state court arrives at a conclusion opposite to that reached by [the Supreme] Court on a question of law or if the state court decides a case differently than [the Supreme] Court has on a set of materially indistinguishable facts." Williams (Terry). 529 U.S. at 412-13. A state court decision is an "unreasonable application of Supreme Court authority, falls under the second clause of § 2254(d)(1), if it correctly identifies the governing legal principle from the Supreme Court's decisions but "unreasonably applies that principle to the facts of the prisoner's case." Id. at 413. The federal court on habeas review may not issue the writ "simply because that court concludes in its independent judgment that the relevant state — court decision applied clearly established federal law erroneously or incorrectly." Id. at 411. Rather, the application must be "objectively unreasonable" to support granting the writ. See id. at 409.

  "Factual determinations by state courts are presumed correct absent clear and convincing evidence to the contrary." Miller — El. 123 S.Ct. at 1041. This presumption is not altered by the fact that the finding was made by a state court of appeals, rather than by a state trial court. Sumner v. Mata. 449 U.S. 539, 546-47 (1981); Bragg v. Galaza, 242 F.3d 1082, Page 4 1087 (9th Cir.), amended. 253 F.3d 1150 (9th Cir. 2001). A petitioner must present clear and convincing evidence to overcome § 2254(e)(1)'s presumption of correctness; conclusory assertions will not do. Id.

  Under 28 U.S.C. § 2254(d)(2), a state court decision "based on a factual determination will not be overturned on factual grounds unless objectively unreasonable in light of the evidence presented in the state — court proceeding." Miller — El 123 S.Ct. at 1041: see also Torres v. Prunty, 223 F.3d 1103, 1107 (9th Cir. 2000).

 B. Issues Presented

  1. Vagueness

  Section 215(a) of the California Penal Code defines carjacking as "the felonious taking of a motor vehicle in the possession of another, from his or her immediate presence . . . against his or her will and with the intent to either permanently or temporarily deprive the person in possession of the motor vehicle of his or her possession, accomplished by means of force or fear." Petitioner contends that this definition is unconstitutionally vague, so his conviction of carjacking was a violation of his due process rights.

  A state criminal statute may be challenged as unconstitutionally vague by way of a petition for a writ of habeas corpus by a prisoner convicted under the statute. Vlasak v. Superior Court of California. 329 F.3d 683, 688-90 (9th Cir. 2003). To avoid unconstitutional vagueness, a statute or ordinance must (1) define the offense with sufficient definiteness that ordinary people can understand what conduct is prohibited; and (2) establish standards to permit police to enforce the law in a non — arbitrary, non — discriminatory manner. Id. at 688-89 (rejecting vagueness challenge because ordinance defines "`the criminal offense with sufficient definiteness that ordinary people can understand what conduct is prohibited and in a manner that does not encourage arbitrary and discriminatory enforcement'") (quoting Kolender v. Lawson, 461 U.S. 352, 357 (1983)). A statute will have the certainty required by the Constitution if its language conveys sufficiently definite warning as to the proscribed conduct when measured by common understanding and practices. Panther. 991 F.2d at 578. Page 5

  In a facial vagueness challenge, the court must look to the plain language of the statute, as well as construe the statute as it has been interpreted by the state courts. Nunez. 114 F.3d at 941-42.

  Petitioner's argument is that the words "felonious taking" in the statute long have been defined by California courts to apply only to takings with the intent to permanently deprive the owner of the property, whereas the statute by its terms applies to takings with intent to deprive either permanently or temporarily. The California Court of Appeal, in rejecting the contention that this "conflict" makes the statute unconstitutionally vague, held that "while there might be a conflict between the traditional use of the term `felonious taking' and its use in the carjacking statute, the statute itself is clear." Ex. 6 at 4. The Court agrees. The definition conveys a warning which is sufficiently clear that ordinary people can understand what conduct is prohibited. The decision of the California appellate courts was not contrary to, or an unreasonable application of, clearly established United States Supreme Court authority.

  2. Miranda

  Petitioner was arrested and placed in a patrol car. After he was read his Miranda rights, he said he did not want to talk. The officers ceased questioning. They then spent three to five minutes driving around the neighborhood looking for the Honda. "As they did so, the officers spoke to each other about the arrest and about the fact that they were looking for the Honda. While the officers were talking, appellant spontaneously said, `do you think that I would be stupid enough to park that car around here.'" Ex. 6 at 7.

  Miranda warnings are only required when the defendant is in custody and subject to interrogation. Miranda v. Arizona. 384 U.S. 436, 444 (1966). There is no question here that petitioner was in custody; the issue is whether he was interrogated after invoking his right to remain silent. For Miranda purposes, interrogation involves express questioning or its functional equivalent. Rhode Island v. Innis, 446 U.S. 291, 301 (1980). Interrogation includes words or actions that police should know are reasonably likely to elicit an Page 6 incriminating response from the suspect. Id. In Innis. the police were transporting a man suspected of shooting a cab driver with a shotgun. Id. at 293. On the way to the police station, one officer in the car told another officer that he was worried because the shotgun had not been found and handicapped children in the area might find the gun and hurt themselves. Id at 294-295. The defendant then told the officers that he would show them the gun's location. Id. Because the conversation was short, included only a few "offhand remarks," and was not particularly "evocative," the Supreme Court held that no interrogation occurred: the police should not have known that their comments would invoke an incriminating response. Id at 303.

  There is no evidence here of more than a few off — hand remarks, as in Innis. and no sense in which the remarks could be characterized as "particularly evocative." This was not a situation where the officers should have known that their conduct was reasonably likely to elicit an incriminating response. The Court concludes that there was no "functional equivalent" of interrogation, and that the state appellate courts' rejection of this claim was not contrary to, or an unreasonable application of, clearly established Supreme Court authority.

  3. Sufficiency of the evidence

  This claim was not set out in the portion of the form petition which asks for "Grounds for Relief." It was mentioned, however, in the attached copy of the California Court of Appeal's opinion, which is preceded by a sheet of paper marked "Exhaustion of State Remedies." It seems clear that petitioner was not attempting to raise this issue. The respondent has nevertheless addressed it, stating that she does so to avoid "any waiver." Because petitioner did not raise this issue, habeas relief cannot be granted on it.

  Alternatively, it is clear that the claim is entirely without merit. Petitioner contended in state court that the evidence was insufficient to support a finding on the element of carjacking which requires that the car be taken "from the immediate presence" of the rightful possessor, and that insufficient evidence that it was taken by means of "force or fear." The state court determined, as a matter of state law, that taking the car from an attached garage, Page 7 when the owner is in the house, is a taking from the owner's "immediate presence," Since there is no dispute that this is what happened here, and the holding as to state law is binding on this court, see Hicks v. Feiock, 485 U.S. 624, 629 (1988), clearly there was sufficient evidence on this element to support the conviction. As to the "force or fear" claim, it may be that petitioner did not take the car by "force" because he had ceased his attack on the victim at the time he took the car, but given the beating the victim had just taken, and petitioner's mood and threats, there was more than substantial evidence that the car was taken by fear. This claim, had it been raised, would be without merit.


  For the foregoing reasons, the petition for a writ of habeas corpus is DENIED. The clerk shall close the file.


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