United States District Court, N.D. California
March 31, 2004.
RODOLFO MENDEZ CATO, Petitioner;
SUSAN L. HUBBARD, Respondent
The opinion of the court was delivered by: WILLIAM HASKELL ALSUP, District Judge
DENIAL OF PETITION FOR WRIT OF HABEAS CORPUS
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
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.
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
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.),
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.
"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,
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
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
B. Issues Presented
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
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.
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
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,
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.
IT IS SO ORDERED.