The opinion of the court was delivered by: JEFFREY WHITE, District Judge
ORDER DENYING PETITION FOR WRIT OF HABEAS CORPUS
Carlos Albert Perez, a state prisoner incarcerated at Folsom
State Prison, has filed a pro se petition for writ of habeas
corpus under 28 U.S.C. § 2254. On July 15, 2002, Judge Charles R.
Breyer issued an order to show cause (docket no. 2). On November
13, 2002, Judge Breyer granted Respondent's motion to dismiss in
part and granted Petitioner's motion to amend the petition,
reinstating the petition as to four claims (docket no. 8). On
January 13, 2003, Respondent filed points and authorities as well
as the answer to the petition for writ of habeas corpus (docket
no. 10, 11). On January 14, 2003, the case was reassigned to this
Court (docket no. 13). On March 17, 2003, Petitioner filed a
traverse (docket no. 16). This order denies the petition for writ
of habeas corpus on the merits.
Petitioner was convicted by a jury in the Superior Court of the
State of California, Santa Clara County of assault by means of
force likely to produce great bodily injury upon David Ramirez,
battery with serious bodily injury upon David Ramirez, and
misdemeanor assault upon Rene Corral. The jury also found true an allegation that
Petitioner personally inflicted great bodily injury for purposes
of a three-year sentence enhancement. Petitioner admitted
allegations that he had been convicted of a serious or violent
felony and that he had served a prior prison term. The trial
court denied Petitioner's motion for a new trial based on
ineffective assistance of counsel as well as his motion to strike
the prior conviction. On November 19, 1999, Petitioner was
sentenced to 14 years in state prison.
The California Court of Appeal struck the prison-term
enhancement but otherwise affirmed the judgment and denied
Petitioner's request for state habeas relief. The Supreme Court
of California denied review on November 14, 2001. Petitioner
filed the instant petition April 29, 2002.
The facts underlying the charged offenses as found by the Court
of Appeal of the State of California, Sixth Appellate District,
are summarized as follows:
On September 24, 1998, David Ramirez and Rene Corral
were drinking beer at the Casey Jones bar in Gilroy.
An altercation began among six men. The owner
succeeded in making the group go outside to the
parking lot. A fight among 10 men then ensued.
Ramirez went outside to break up the fight but
concluded that his efforts would be unnecessary. He
began walking back inside the bar. A woman approached
him and started talking to him. Witnesses then saw
Petitioner strike Ramirez on the left side of the
face with his fist. According to Ramirez, he was
initially struck on the right back side of the head.
Ramirez collapsed. Witnesses say that when he tried
to get back up, Al Diaz kicked him in the face.
According to Ramirez, after the initial blow put him
on the floor, he tried to get up, was struck again,
fell again, and then was kicked and hit several times
in the face, nose and eye.
Dr. Roger Vigil treated Ramirez for fractures on the
left side of the face and nose, facial contusions and
abrasions, head trauma, and a bruise to the back of
the right ear. He testified as an expert in the field
of emergency medicine that a single blow or kick
could have caused all of the injuries to the left
side of Ramirez's face.
Ignacio Cervantes testified for the defense that he
went to the bar with Petitioner and Petitioner came
to his aid when he became involved in the fight
outside the bar. When the defense counsel asked
whether Petitioner had hit anyone when Petitioner
first came to his aid, Mr. Cervantes replied, "I
didn't see him hit anybody."
People v. Perez, No. 209431, unpublished op at 2-3 (Cal. Ct.
App.) (Pet. Ex A). STANDARD OF REVIEW
This Court may entertain a petition for a writ of habeas corpus
"in behalf of a person in custody pursuant to the judgment of a
state court only on the ground that he is in custody in violation
of the Constitution or laws or treaties of the United States."
28 U.S.C. § 2254(a). The petition may not be granted with respect to
any claim that was adjudicated 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." Id. § 2254(d).
Under the "contrary to" clause, a federal habeas court may
grant the writ 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 v. Taylor, 529 U.S. 362, 413 (2000). Under the
"reasonable application" clause, a federal habeas court may grant
the writ if the state court identifies the correct governing
legal principle from the Supreme Court's decisions but
unreasonably applies that principle to the facts of the
prisoner's case. Id. An unreasonable determination of the facts
by the state court will be found if the federal court is left
with a "firm conviction" that the determination was wrong and the
one Petitioner urges was correct. Torres v. Prunty,
223 F.3d 1103, 1108 (9th Cir. 2000). In deciding whether the state court's
decision is contrary to, or an unreasonable application of
clearly established federal law, a federal court looks to the
decision of the highest state court to address the merits of
Petitioner's claim in a reasoned decision. LaJoie v. Thompson,
217 F.3d 663, 669 n. 7 (9th Cir. 2000). If the state court only
considered state law, the federal court must ask whether state
law, as explained by the state court, is "contrary to" clearly
established governing federal law. See Lockhart v. Terhune,
250 F.3d 1223, 1230 (9th Cir. 2001). If the state court, relying on
state law, correctly identified the governing federal legal
rules, the federal court must ask whether the state court applied
them unreasonably to the facts. See Lockhart, 250 F.3d at 1232. DISCUSSION
I. Claim of Jury Instruction Error
Petitioner was charged with an enhancement under Penal Code
section 12022.7(a). The enhancement provides that a person who
"personally inflicts great bodily injury on any person other than
an accomplice in the commission or attempted commission of a
felony . . . in addition and consecutive to the punishment
prescribed for the felony or attempted felony of which he or she
has been convicted, be punished by an additional term of three
years . . . (.)"
Using CALJIC 17.20, the trial court instructed the jury as
If you find beyond a reasonable doubt that a victim
or victims suffered great bodily injury, you must
then decide whether or not the defendant personally
inflicted the great bodily injury.
In order to prove that the defendant personally
inflicted great bodily injury, either of the
following must be proved beyond a reasonable doubt:
1. The defendant personally inflicted great bodily
2. (a) The defendant participated in a group beating;
(b) It is not possible to determine which assailant
inflicted which injuries; and
(c) The defendant's conduct was of a nature that
could have caused the great bodily injury.
Clerk's Transcript ("CT") at 263.
Petitioner contends that the instruction was improper because
it provided a standard of proof less than the constitutionally
required standard of proof beyond a reasonable doubt for every
element of the charged crime. Petitioner argues that the
instruction eliminated from the jury's consideration the
determination of whether Petitioner was the direct perpetrator of
the crime or merely an aider and abettor. According to
Petitioner, the use of CALJIC 17.20, defining personal infliction
of great bodily injury under California Penal Code § 12022.7(a),
violated his right to have an essential element of the
enhancement proven beyond a reasonable doubt. Petitioner contends
that the instruction served to lessen the prosecution's burden to
prove that he "personally inflicted" the injury due to the
language in the charge that defendant's conduct "was of a nature
that could have caused" the injury. Petitioner additionally
argues that the jury instruction improperly applied state law.
A person in custody pursuant to the judgment of a state court
can obtain a federal writ of habeas corpus only on the ground
that he is in custody in violation of the Constitution or laws or treaties of the United States. 28 U.S.C. § 2254(a). In other
words, a writ of habeas corpus is available under § 2254(a) "only
on the basis of some transgression of federal law binding on the
state courts." Middleton v. Cupp, 768 F.2d 1083, 1085 (9th Cir.
1985) (citing Engle v. Isaac, 456 U.S. 107, 119 (1982)), cert.
denied, 478 U.S. 1021 (1986). It is unavailable for violations
of state law or for alleged error in the interpretation or
application of state law. See Estelle v. McGuire, 502 U.S. 62,
67-68 (1991); Peltier v. Wright, 15 F.3d 860, 861-62 (9th Cir.
1994); see, e.g., Moore v. Rowland, 367 F.3d 1199, 1200 (9th
Cir. 2004) (per curiam) (state's violation of its
separation-of-powers principles does not give rise to a federal
due process violation); Stanton v. Benzler, 146 F.3d 726, 728
(9th Cir. 1998) (state law determination that arsenic trioxide is
a poison as a matter of law and not an element of the crime for
jury determination is not open to challenge on federal habeas
review); Franklin v. Henry, 122 F.3d 1270, 1272-73 (9th Cir.
1997) (court was bound by state court finding that a violation of
state law had occurred, but still had to consider whether the
violation amounted to a federal constitutional error).
It is unavailable merely because "something in the state
proceedings was contrary to general notions of fairness or
violated some federal procedural right unless the Constitution or
other federal law specifically protects against the alleged
unfairness or guarantees the procedural right in state court."
Middleton, 768 F.2d at 1085. A state court's procedural or
evidentiary ruling may be subject to federal habeas review,
however, if it 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); Middleton, 768 F.2d at 1085. A federal court can
disturb on due process grounds a state court's procedural or
evidentiary ruling only if the ruling was arbitrary or so
prejudicial that it rendered the trial fundamentally unfair. See
Walters v. Maass, 45 F.3d 1355, 1357 (9th Cir. 1995); Colley v.
Sumner, 784 F.2d 984, 990 (9th Cir.) cert. denied,
479 U.S. 839 (1986).
The Due Process Clause of the Fourteenth Amendment protects the
accused against conviction except upon proof beyond a reasonable
doubt of every fact necessary to constitute the crime with which he is charged. See In re Winship,
397 U.S. 358, 364 (1970). This constitutional principle prohibits the
State from using evidentiary presumptions in a jury charge that
have the effect of relieving the State of its burden of
persuasion beyond a reasonable doubt of every essential element
of a crime. See Yates v. Evatt, 500 U.S. 391, 400-03 (1991);
Carella v. California, 491 U.S. 263, 265-66 (1989); Francis v.
Franklin, 471 U.S. 307, 313 (1985); Sandstrom v. Montana,
442 U.S. 510, 520-24 (1979).
The Supreme Court's holdings in Carella and Sandstrom
provide the controlling authority on mandatory presumptions in
jury instructions on habeas corpus review. Powell v.Galaza,
328 F.3d 558, 563 (9th Cir. 2003) (on remand from United States
Supreme Court). An instruction that creates a mandatory
presumption violates due process because it "directly
foreclose[s] independent jury consideration of whether the facts
proved establish? certain elements of [the charged offense] . . .
and relieve[s] the State of its burden of . . . proving by
evidence every essential element of [the] crime beyond a
reasonable doubt." Carella, 491 U.S. at 265-66 (citations
omitted); see Sandstrom, 442 U.S. at 521 (holding
unconstitutional jury instruction that "[t]he law presumes that a
person intends the ordinary consequences of his voluntary acts"
because the jury could have interpreted it as either a
burden-shifting or conclusive presumption); Powell,
328 F.3d at 563-64 (finding that court's midtrial instruction to jury that
defendant's testimony was admission that specific intent element
had been satisfied essentially directed jury's verdict, went
beyond mandatory presumption instructions in Carella and
Sandstrom, and was not cured by court's later instructions);
Patterson v. Gomez, 223 F.3d 959, 965-66 (9th Cir. 2000);
United States v. Washington, 819 F.2d 221, 225 (9th Cir. 1987).
A mandatory presumption can be reviewed for harmless error
because it is not equivalent to a directed verdict for the state
the jury is still required to find the predicate facts
underlying each element beyond a reasonable doubt. Carella,
491 U.S. at 266; but cf. Powell, 328 F.3d at 566-67 (harmless error
review inapplicable where trial court's midtrial instruction
effectively directed jury to find defendant guilty, thereby
depriving him of right to jury verdict under Sixth Amendment). To obtain federal collateral relief for ...