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Buenrostro v. Felker


October 31, 2005


The opinion of the court was delivered by: Claudia Wilken United States District Judge


Petitioner Abraham Adam Buenrostro is a prisoner of the State of California who is incarcerated at the High Desert State Prison at Susanville, California. He brings this petition pro se seeking a writ of habeas corpus pursuant to 28 U.S.C. § 2254. Respondent was ordered to show cause why the writ should not be granted and has filed an answer supported by a memorandum of points and authorities, the State trial record and the unpublished opinion of the California Court of Appeal. Petitioner had the opportunity to file a traverse, but did not do so.

Having considered all of the papers filed by the parties and the State court trial record, the Court DENIES the petition for writ of habeas corpus.


On October 19, 1999, at about 2:30 a.m., Fortunado Noyola, Luis Rodriguez and a third man stopped to purchase gas at a 7-Eleven convenience store at the intersection of Mayfair Drive and Sanborn Road in Salinas, California. RT 259. The three men, all migrant farm workers, were riding to work in Mr. Noyola's car. RT 260. Mr. Noyola went into the store to purchase gas, but the clerk told him that the store was closed. RT 261.

Mr. Noyola went back to his car; two young men approached him. RT 261. One man had a gun. RT 261. They asked Mr. Noyola for money and he gave them $90 to $100 in cash. RT 262. The man holding the gun demanded more money. RT 262. Mr. Noyola gave the man three uncashed checks. RT 262. The man asked one of the clerks to cash the check, but the clerk told him that 7-Eleven did not cash checks. RT 262-63.

The man with the gun then approached Mr. Rodriguez and told him to take out his money. RT 264. The man without the gun told Mr. Rodriguez to give him the money. RT 264. Mr. Rodriguez said that he had no money. RT 264. The man with the gun shot Mr. Rodriguez in the left side of his chest. RT 265, 357-58. Mr. Noyola was shot twice in the back. RT 265-67. And the two young men fled. RT 285.

Mr. Rodriguez died before the police and emergency medical personnel arrived. RT 356-57. Mr. Noyola went to the hospital, where he was treated for two bullet wounds. RT 266.

On February 7, 2000, Petitioner was charged by information filed in the Superior Court of Monterey County with the murder and attempted robbery of Mr. Rodriguez and the attempted murder and robbery of Mr. Noyola. Petitioner plead not guilty.

As described in the unpublished opinion of the Sixth Appellate District of the California Court of Appeal in People v. Buenrostro, H022870 (Dec. 9, 2002), before his trial:

[Petitioner] brought a motion in limine seeking to admit the testimony of Ernesto Gonzalez regarding statements made to him by "Animal" and "Drifter" in support of the defense theory of third party culpability. During the hearing on the motion, Gonzalez testified to certain exchanges he had with other inmates while in jail. He stated that Marcos Perez told him that "Drifter" did the shooting at the 7-Eleven on Mayfair Street. Gonzalez testified that "Animal" told him that Animal's cousin had said that "Drifter and them other guys had done the shooting" and that Animal's girlfriend had said the same thing. He conceded that "Animal" never told him that "Drifter had done anything in particular with regard to this robbery-shooting." Gonzalez also conceded that neither Perez nor "Animal" ever said that he was present at the crimes.

Gonzalez further testified that as he passed "Drifter" in jail, he asked, "'What happened?'" or "'What's up?'" According to Gonzalez, "Drifter" made a hand gesture as if he were pulling the trigger of a gun. Gonzalez stated that he assumed that "Drifter" "was telling [him] what everybody else had been telling [him] already." Gonzalez was not aware of the reason Drifter was in jail or that he had just been arrested for carrying a concealed weapon. Gonzalez admitted that he never had a direct conversation with "Drifter" and explained "Drifter" was "just going by through the rotunda at the time" and the officers "wouldn't let me talk with him."

At the hearing, Lisa Sobalvarro, an investigator with the Monterey County Public Defender's Office, testified that they knew that Aaron Contreras was called "Drifter" and Gonzalez had identified the photograph of Contreras as being "Drifter." She testified regarding her unsuccessful efforts to locate Contreras.

The court denied the motion to introduce the evidence. It explained in part: "The statements were clearly hearsay, and not of any personal knowledge of the people speaking. And the most you can say is it was speculation."

On January 25, 2001, the jury found Petitioner guilty of first degree murder, attempted second degree murder, attempted second degree robbery and second degree robbery. The court sentenced him to State prison for an indeterminate term of life without possibility of parole, plus a consecutive indeterminate term of twenty-five years to life and a consecutive determinate term of forty-four years.

On April 11, 2001, Petitioner filed a timely notice of appeal. And on December 9, 2002, the California Court of Appeal, Sixth Appellate District, affirmed the judgment in an unpublished opinion, rejecting Petitioner's arguments that the trial court erred in denying his motion in limine to admit Ernesto Gonzalez's testimony and in giving the reasonable doubt instruction: the same arguments that Petitioner now raises before this Court. The California Supreme Court denied the petition for review.


A federal court may entertain a habeas petition from a State prisoner "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).

Under the Antiterrorism and Effective Death Penalty Act (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). A decision is contrary to clearly established federal law if it fails to apply the correct controlling authority, or if it applies the controlling authority to a case involving facts materially indistinguishable from those in a controlling case, but nonetheless reaches a different result. Clark v. Murphy, 331 F.3d 1062, 1067 (9th. Cir. 2003).

An unreasonable application of federal law occurs when the State court identifies the correct governing legal principle, but unreasonably applies that principle to the facts. Id. An unreasonable application of federal law is different from an incorrect application of federal law. Id. Relief is not proper where the State court decision is "merely erroneous." Early v. Packer, 537 U.S. 3, 10 (2002).

The only definitive source of clearly established federal law under 28 U.S.C. § 2254(d) is the holdings of the Supreme Court as of the time of the relevant State court decision. Williams v. Taylor, 529 U.S. 362, 412 (2000). Circuit law may be persuasive authority for purposes of determining whether a State court decision is an unreasonable application of Supreme Court law. Clark, 331 F.3d at 1070-71.

To determine whether the State court's decision is contrary to, or involved an unreasonable application of, clearly established law, a federal court looks to the decision of the highest State court that addressed the merits of a petitioner's claim in a reasoned decision. LaJoie v. Thompson, 217 F.3d 663, 669 n.7 (9th Cir. 2000).

Under 28 U.S.C. § 2254, a federal court gives deference to a State court's factual determinations. Lambert v. Blodgett, 393 F.3d 943, 968 (9th Cir. 2004). Title 28 U.S.C. § 2254(e)(1) provides that "a determination of a factual issue made by a State court shall be presumed to be correct. The applicant shall have the burden of rebutting the presumption of correctness by clear and convincing evidence."


I. Exclusion of Testimony

Petitioner contends that the appellate court erred by affirming the trial court's decision to exclude Ernesto Gonzalez's testimony that Drifter, Aaron Contreras, admitted that he had committed the 7-Eleven robberies and shooting. Petitioner argues that this testimony was admissible because it was a declaration against interest, an exception to the hearsay rule. Cal. Evid. Code § 1230. A State court's evidentiary ruling, however, 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). Here, Petitioner argues that the exclusion of Gonzalez's testimony violated his due process right to a fundamentally fair trial.

The Due Process Clause does not guarantee the right to introduce all relevant evidence. Montana v. Egelhoff, 518 U.S. 37, 42 (1996). As recognized by the appellate court, "The accused does not have an unfettered right to offer evidence that is incompetent, privileged or otherwise inadmissible under standard rules of evidence." Taylor v. Illinois, 484 U.S. 400, 410 (1988). The exclusion of evidence does not violate the Due Process Clause unless "it offends some principle of justice so rooted in the traditions and conscience of our people as to be ranked as fundamental." Patterson v. New York, 432 U.S. 197, 201-02 (1977).

"It is not the State which bears the burden of demonstrating that its rule is deeply rooted." Egelhoff,, 518 U.S. at 47. But rather the defendant must establish that his right to have the jury consider the excluded evidence in the case was a "fundamental principle of justice." See Egelhoff, 518 U.S. at 43; see also Chia v. Cambra, 360 F.3d 997, 1003 (9th Cir. 2004) (it is clearly established federal law that when a hearsay statement bears persuasive assurances of trustworthiness and is critical to the defense, the exclusion of that statement may rise to the level of a due process violation). One of the fundamental rules that may be violated by the erroneous exclusion of critical, corroborative defense evidence is the Sixth Amendment right to present a defense. DePetris v. Kuykendall, 239 F.3d 1057, 1062 (9th Cir. 2001) (citing Chambers v. Mississippi, 410 U.S. 284, 294 (1973), and Washington v. Texas, 388 U.S. 14, 18-19 (1967)).

When deciding whether the exclusion of evidence violates the Due Process right to a fair trial or the Sixth Amendment right to present a defense, the court balances the following five factors:

(1) the probative value of the excluded evidence on the central issue; (2) its reliability; (3) whether it is capable of evaluation by the trier of fact; (4) whether it is the sole evidence on the issue or merely cumulative; and (5) whether it constitutes a major part of the attempted defense. Chia, 360 F.3d at 1004; Drayden v. White, 232 F.3d 704, 711 (9th Cir. 2000).

Reviewing Petitioner's claims, the appellate court, citing applicable United States Supreme Court precedent, concluded that Ernesto Gonzalez's testimony failed to meet appropriate standards of relevance and reliability. The court reasoned that, even assuming that the proffered testimony regarding Drifter's hand gesture might fall within an exception to the hearsay rule, Drifter's hand gesture as if he were pulling the trigger of a gun had no probative value. There was no evidence that Drifter understood that he was being asked whether he committed the crimes of which Petitioner was convicted. Thus, the court ruled that the trial court reasonably found that any inference from the evidence of the hand gesture was too speculative and affirmed the judgment.

The appellate court's conclusion withstands examination under the Chia factors. Chia, 281 F.3d at 1037. Though the excluded evidence constituted a major part of Petitioner's defense, namely that someone else committed the crimes, the appellate court did not unreasonably apply clearly established federal law in concluding that the evidence was properly excluded. As noted by Respondents, the proffered evidence consisted of a hand gesture and third-hand jailhouse gossip. The evidence here, unlike in Chia, does not bear persuasive assurances of trustworthiness. Drifter did not offer explicit self-incriminatory testimony like the witness in Chia did. The witness in Chia stated that Chia was not involved in the plot and that Chia had told him not to get involved in a drug conspiracy that resulted in the deaths of federal agents. 360 F.3d at 1005. Here, when asked what was up, Drifter gestured as if he was pulling the trigger of a gun. And Ernesto Gonzalez assumed that this meant that he was the shooter at 7-Eleven, in part, because people had told him that Drifter was the shooter. Gonzalez confessed that he did not have a direct conversation with Drifter and did not know that Drifter was arrested for carrying a concealed weapon. The proffered evidence is not reliable; nor is it capable of evaluation by the trier of fact. Instead, a juror would be forced to speculate whether the hand gesture meant (a) that Drifter admitted that he was the 7-Eleven shooter, (b) that Drifter admitted that he had been arrested for carrying a gun or (c) something entirely different. Petitioner's claim for relief on the ground that the trial court erroneously excluded evidence is DENIED.

II. Reasonable Doubt Instruction

Petitioner contends that the trial court's instruction on reasonable doubt was unconstitutional. The trial court gave the standard jury instruction CALJIC No. 2.90, which provided:

A defendant in a criminal action is presumed to be innocent until the contrary is proved, and in a case of a reasonable doubt whether his guilt is satisfactorily shown, he is entitled to a verdict of not guilty. This presumption places upon the People the burden of proving him guilty beyond a reasonable doubt.

Reasonable doubt is defined as follows: It is not mere possible doubt; because everything relating to human affairs is open to some possible or imaginary doubt. It is that state of the case which, after the entire comparison and consideration of all the evidence, leaves the minds of the jurors in that condition that they cannot say they feel an abiding conviction of the truth of the charge.

Although the "beyond a reasonable doubt" standard is a requirement of due process, the Constitution neither prohibits trial courts from defining reasonable doubt nor dictates that they do so as a general rule. Victor v. Nebraska, 511 U.S. 1, 6 (1994). A trial court must instruct a jury on the necessity of finding that the government has proven a defendant's guilt beyond a reasonable doubt, but the Constitution does not mandate that the court use certain words in advising a jury on the government's burden. Id. Taken as a whole, the instructions must correctly convey to a jury the general concept of reasonable doubt. Id. (citing Holland v. United States, 348 U.S. 121, 140 (1954)).

California's previous instruction on reasonable doubt read as follows:

It is not a mere possible doubt; because everything relating to human affairs, and depending on moral evidence, is open to some possible or imaginary doubt. It is that state of the case which, after the entire comparison and consideration of all the evidence, leaves the minds of the jurors in that condition that they cannot say they feel an abiding conviction, to a moral certainty, of the truth of the charge.

CALJIC No. 2.90 (5th ed. 1988).

In Victor, the United States Supreme Court rejected a challenge to this instruction and affirmed the judgment of the California Supreme Court which recognized the constitutionality of the instruction. Victor, 511 U.S. at 6. The Court, however, noted that the phrase "moral certainty" might not be recognized by jurors as a synonym for "beyond a reasonable doubt," stating that "an instruction cast in terms of an abiding conviction as to guilt, without reference to moral certainty, correctly states the government's burden of proof." Id. at 14-15.

Based on Victor, the California Supreme Court declared in People v. Freeman, 8 Cal. 4th 450, 504 (1994), that "trial courts might, in the future, safely delete the following phrases in the standard instruction: 'and depending on moral evidence' and 'to a moral certainty.'" Following Freeman, CALJIC No. 2.90 was revised as quoted above, to heed the California Supreme Court's suggestion. Five years later, in Lisenbee v. Henry, 166 F.3d 997, 999-1000 (9th Cir. 1999), the Ninth Circuit rejected a constitutional challenge to the revised instruction, relying on the Supreme Court's rationale in Victor that use of the term "abiding conviction" to define reasonable doubt is constitutionally sound.

Here, the trial court's instruction on reasonable doubt mirrored revised CALJIC No. 2.90, which has been approved by the Ninth Circuit in Lisenbee. The appellate court's decision that the trial court's reasonable doubt instruction satisfied due process concerns was neither contrary to nor an unreasonable application of controlling federal law. Petitioner's claim for relief on the ground that the jury instruction on reasonable doubt violated due process is DENIED.


For the foregoing reasons, the petition for writ of habeas corpus (Docket No. 1) is DENIED. The Clerk shall enter judgment and close the file.



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