United States District Court, N.D. California
August 16, 2005.
SAMUEL GOMEZ ALCONTAR, Petitioner,
TOM L. CAREY, Warden, Respondent.
The opinion of the court was delivered by: PHYLLIS HAMILTON, District Judge
ORDER DENYING PETITION FOR WRIT OF HABEAS CORPUS
This is a habeas corpus case filed pro se 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 not filed an optional traverse. The matter is submitted.
After petitioner waived his rights to a jury trial, a Santa
Clara court convicted him of making terrorist threats, see Cal.
Penal Code § 422, and found him not guilty of failing to register
as a sex offender, see Cal. Penal Code § 290(g)(2). The court
found that he had been convicted of two prior "strike " offenses,
but struck one in the interests of justice and sentenced
defendant to six years in prison. The California Court of Appeal
affirmed and the California Supreme Court denied review.
The following facts are summarized from the opinion of the
California Court of Appeal. Ex. B at 2-3.
On the morning of the incident, Linda Gonzales took her
three-year-old grandson to her car. She noticed defendant
touching her neighbor at the bus stop in front of her apartment. As the neighbor walked away, Gonzales saw petitioner
touch the neighbor's breast. Then Gonzales saw petitioner
instigate a fight with a man with a cane who was waiting for the
bus. Gonzales asked petitioner to take the fight elsewhere
because there was a child in the yard. The bus came and the man
with the cane boarded it. Petitioner then told Gonzales not to
call the police and threatened to burn down her home. Gonzales
tried to shut the driveway gate and petitioner called her a bitch
and yelled, "shutting the gate won't keep me out, because your
house could be burned down to the ground." He raised his hands
toward her, in front of her face. Gonzales noticed that he
appeared to be under the influence of something. She was afraid
and took the threats seriously.
A man and a woman waiting for the bus flagged down a police
officer. The police officer talked to those people and Gonzales.
All of the witnesses told him about the threats made by
petitioner. The officer noticed that petitioner was intoxicated,
belligerent and uncooperative. After petitioner tried to walk
away, the officer handcuffed him and put him in the patrol car.
Petitioner started violently kicking the car door and windows.
The officer called a sergeant and petitioner settled down.
Petitioner was arrested on outstanding warrants, for failure to
register as a sex offender, and for making threats. He was booked
and had his blood drawn. It is undisputed that petitioner's blood
alcohol level was .27.
Gonzales called the police department several times to see if
petitioner had been released. She was afraid that he would act on
his threats. Apparently her father had burned down their home
when she was five and the petitioner's threats brought back old
fears. She indicated to the responding officer that she was very
afraid for her own and her family's safety. 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. 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, falling
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. Id. at 409.
When there is no reasoned opinion from the highest state court
to consider the petitioner's claims, the court looks to the last
reasoned opinion, in this case that of the California Court of
Appeal. See Ylst v. Nunnemaker, 501 U.S. 797, 801-06 (1991);
Shackleford v. Hubbard, 234 F.3d 1072, 1079, n. 2 (9th Cir.
Petitioner contends that his due process rights were violated
by admission of evidence that after he was arrested he became
violent and kicked the door and window of the police car. He
argues that the only possible inference that could be drawn from
the evidence was the allegedly unconstitutional one that he had a
propensity for violent conduct.
The California Court of Appeal rejected this claim, finding
that the evidence went not only to propensity, but also to
whether the threat was in fact intended to be taken as a threat
and to whether the victim reasonably feared for her own safety
and that of her family. Ex. B at 4-5.*fn1 Under California
law, the fact-finder may consider events after the
allegedly-threatening statements in determining whether a
reasonable person would have considered the statements to be
threats; that is, the evidence is not limited to the
circumstances at the time the threats are uttered, but later
events may render the earlier statements criminal. Id. at 4-6.
In other words, the statements do have to be the sole cause of the victim's fear; that fear may be created by a
combination of the statements and later conduct. Id. at 6.
A state court's evidentiary ruling is not subject to federal
habeas review unless the ruling violates federal law, either by
infringing upon a specific federal constitutional or statutory
provision or by depriving the defendant of the fundamentally fair
trial guaranteed by due process. See Pulley v. Harris,
465 U.S. 37, 41 (1984); Jammal v. Van de Kamp, 926 F.2d 918, 919-20
(9th Cir. 1991). The due process inquiry is whether the admission
of evidence was arbitrary or so prejudicial that it rendered the
trial fundamentally unfair. Walters v. Maas, 45 F.3d 1355, 1357
(9th Cir. 1995). But only if there are no permissible inferences
that the jury may draw from the evidence can its admission
violate due process. Jammal, 926 F.2d at 920.
The appellate courts' holding here that the crime of "criminal
threats" can be committed by uttering statements which are
reasonably seen as threats only in light of subsequent events is
a determination of California law which is binding on this court.
See Hicks v. Feiock, 485 U.S. 624, 629 (1988). Therefore, the
evidence of petitioner's conduct in the police car did not go
only to propensity. The finder of fact could also draw a
permissible inference from petitioner's post-statements actions,
that the statements were intended as threats and that the victim
was reasonably put in fear by them. Admission of the evidence
therefore did not violate due process. See Jammal,
926 F.2d at 920 (no violation of due process if fact-finder can draw
permissible inference from evidence).
In addition, even if it is assumed that the evidence went only
to propensity, petitioner would not be entitled to relief because
the United States Supreme Court has specifically left open the
question of whether admission of propensity evidence violates due
process. Estelle v. McGuire, 502 U.S. 62, 75 n. 5 (1991). There
thus is no "clearly established Federal law, as determined by the
Supreme Court of the United States," 28 U.S.C. § 2254(d), which could have been violated by admission of
the prior crime evidence, and it is impossible for petitioner to
show, as he must to obtain habeas relief, that the state
appellate courts' rejection of his constitutional claim regarding
admission of the evidence "was contrary to, or involved an
unreasonable application of, clearly established Federal law, as
determined by the Supreme Court of the United States." Id.
The trial court did not violate petitioner's due process
rights, and the rejection of that claim by the state appellate
courts was not contrary to, nor an unreasonable application of,
clearly established United States Supreme Court precedent.
For the foregoing reasons, the petition for a writ of habeas
corpus is DENIED. The clerk shall close the file.
IT IS SO ORDERED.
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