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Katekeo v. Felker

March 25, 2009


The opinion of the court was delivered by: Gregory G. Hollows United States Magistrate Judge


I. Introduction

Petitioner is a state prisoner proceeding pro se with a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254. Petitioner challenges his 2006 conviction for attempted murder (Cal. Penal Code §§ 184, 187(a)), discharging a firearm at an occupied motor vehicle (Cal. Penal Code § 246) and a special firearm allegation (Cal. Penal Code § 12022.53(d)) (personal discharge of a firearm causing great bodily injury during the commission of an offense).

Petitioner is serving a sentence of life with the possibility of parole plus a consecutive 25 years to life sentence. In particular, petitioner was sentenced to life with the possibility of parole for attempted murder and to a consecutive term of 25 years to life for the firearm enhancement. Petitioner's sentence for discharging a firearm at an occupied motor vehicle (5 years plus 25 years to life for the enhancement) was stayed.

This action is proceeding on the original petition filed November 12, 2008, raising the following claims: 1) the trial court improperly denied petitioner's motion to substitute counsel; 2) the trial court improperly denied trial counsel's motion for a continuance; and 3) the trial court erred in admitting gang evidence.

After carefully reviewing the record, the court recommends that the petition be denied.

II. Anti-Terrorism and Effective Death Penalty Act (AEDPA)

The Antiterrorism and Effective Death Penalty Act (AEDPA) applies to this petition for habeas corpus which was filed after the AEDPA became effective. Neelley v. Nagle, 138 F.3d 917 (11th Cir.), citing Lindh v. Murphy, 521 U.S. 320, 117 S.Ct. 2059 (1997). The AEDPA "worked substantial changes to the law of habeas corpus," establishing more deferential standards of review to be used by a federal habeas court in assessing a state court's adjudication of a criminal defendant's claims of constitutional error. Moore v. Calderon, 108 F.3d 261, 263 (9th Cir. 1997).

In Williams (Terry) v. Taylor, 529 U.S. 362, 120 S.Ct. 1495 (2000), the Supreme Court defined the operative review standard set forth in § 2254(d). Justice O'Connor's opinion for Section II of the opinion constitutes the majority opinion of the court. There is a dichotomy between "contrary to" clearly established law as enunciated by the Supreme Court, and an "unreasonable application of" that law. Id. at 1519. "Contrary to" clearly established law applies to two situations: (1) where the state court legal conclusion is opposite that of the Supreme Court on a point of law, or (2) if the state court case is materially indistinguishable from a Supreme Court case, i.e., on point factually, yet the legal result is opposite.

"Unreasonable application" of established law, on the other hand, applies to mixed questions of law and fact, that is, the application of law to fact where there are no factually on point Supreme Court cases which mandate the result for the precise factual scenario at issue.

Williams (Terry), 529 U.S. at 407-08, 120 S.Ct. at 1520-1521 (2000). It is this prong of the AEDPA standard of review which directs deference to be paid to state court decisions. While the deference is not blindly automatic, "the most important point is that an unreasonable application of federal law is different from an incorrect application of law....[A] federal habeas court 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. Rather, that application must also be unreasonable." Williams (Terry), 529 U.S. at 410-11, 120 S.Ct. at 1522 (emphasis in original). The habeas corpus petitioner bears the burden of demonstrating the objectively unreasonable nature of the state court decision in light of controlling Supreme Court authority. Woodford v. Viscotti, 537 U.S. 19, 123 S.Ct. 357 (2002).

The state courts need not have cited to federal authority, or even have indicated awareness of federal authority in arriving at their decision. Early v. Packer, 537 U.S. 3, 123 S.Ct. 362 (2002). Nevertheless, the state decision cannot be rejected unless the decision itself is contrary to, or an unreasonable application of, established Supreme Court authority. Id. An unreasonable error is one in excess of even a reviewing court's perception that "clear error" has occurred. Lockyer v. Andrade, 538 U.S. 63, 75-76, 123 S.Ct. 1166, 1175 (2003). Moreover, the established Supreme Court authority reviewed must be a pronouncement on constitutional principles, or other controlling federal law, as opposed to a pronouncement of statutes or rules binding only on federal courts. Early v. Packer, 537 U.S. at 9, 123 S.Ct. at 366.

However, where the state courts have not addressed the constitutional issue in dispute in any reasoned opinion, the federal court will independently review the record in adjudication of that issue. "Independent review of the record is not de novo review of the constitutional issue, but rather, the only method by which we can determine whether a silent state court decision is objectively unreasonable." Himes v. Thompson, 336 F.3d 848, 853 (9th Cir. 2003).

When reviewing a state court's summary denial of a claim, the court "looks through" the summary disposition to the last reasoned decision. Shackleford v. Hubbard, 234 F.3d 1072, 1079 n. 2 (9th Cir. 2000).

III. Factual Background

The opinion of the California Court of Appeal contains a factual summary. After independently reviewing the record, the court finds the summary to be accurate and adopts it below.


The August 2004 Fight One evening in August 2004, N.X. (the victim) was hanging out with his friend, S.T., at S.T.'s house on Las Palmas Avenue. They heard a loud commotion and went outside to investigate. A group of people, including the defendant, stood in the street. S.T. approached the group and defendant pushed him. When the victim intervened, the defendant pushed him as well. Defendant and the victim "square[d] off" and began to fight. The victim soon gained the upper hand, and one of defendant's friends jumped in and started fighting with S.T. Soon, "everybody started jumping in" to the fight, including defendant's girlfriend, J.M. When the crowd picked up bottles and pieces of wood to use as weapons, the victim and S.T. ran back into the house. Someone in the crowd threw a piece of wood through one of the windows. The police were called but never responded. The victim did not report the incident to police for fear of retaliation.

The September 2004 Shooting In September 2004, the victim, S.T. and a friend went to Family Billiards to play pool. Defendant and three other men drove up in front of the pool hall. When defendant walked inside the pool hall, the victim and S.T. went outside to talk with defendant's friends to "try to resolve [the] problem." Defendant returned to the car and suggested they take it somewhere else. Defendant and his friends drove to the corner and the victim and S.T. followed on foot. Once there, defendant got out of the car, pulled out a handgun and started shooting. One of the shots grazed the victim's ankle. The victim and S.T. ran back inside the pool hall and defendant and his friends drove away. The victim did not call the police because he did not want to create "a bigger problem."

The December 16, 2004 Shooting At approximately 6:00 p.m. on December 16, 2004, the victim was home playing video games with his little brother, P. P. left the house to go visit some friends down the street, but returned momentarily, telling the victim the defendant was outside. Not wanting the defendant to know where he lived, the victim stayed inside and continued playing video games. P. walked down the street and hung out with defendant's younger brother and another friend, for several hours until the defendant came and picked his brother up around 7:00 or 8:00 p.m.

That same evening, the victim went over to S.T.'s house to watch a basketball game. He brought some beer with him, which he and S.T. decided to drink in the car parked out in front of the house because S.T.'s father did not approve of drinking in the house.

The two men sat in the car and drank a couple of beers while they talked and checked the basketball score on the victim's cell phone. After about 10 minutes, S.T. went back inside the house to change into some warmer clothes. A moment later, defendant walked up to the driver's side window and fired five or six shots into the car, hitting the victim in the chest, arm and back. S.T. and his brother heard the gunshots and the sound of the victim moaning. S.T. called 911 while his younger brother ran out to help the victim until help arrived. The victim was taken to the hospital where he remained for over two months. FN3 Police conducted a videotaped interview at the victim's hospital bedside during which the victim identified defendant as the person who shot him.

[FN3. As a result of the shooting, the victim is now a paraplegic.] Defendant was arrested and charged by amended information with attempted murder (Count One), discharge of a firearm at an occupied motor vehicle (Count Two), and two counts of assault with a deadly weapon (Counts Three and Four). FN4 The information specially alleged personal use and personal discharge of a firearm during commission of Count One, personal discharge of a firearm during commission of Count Two, and personal use of a firearm during the commission of Counts Three and Four.

[FN4. Counts Three and Four related to the September 2004 shooting incident at the pool hall.]

Prior to commencement of trial, the prosecution filed a motion in limine seeking to admit evidence of defendant's gang affiliation to prove motive and to impeach alibi testimony from defendant's girlfriend. The court's ruling precluded evidence of gang affiliation under Evidence Code section 352, but noted the issue might need to be revisited at a later time.

At trial, the victim identified defendant as the shooter with "100 percent" certainty.

During trial, the court revisited the issue of eliciting testimony regarding defendant's gang affiliation from defendant's girlfriend, J.M., for the purpose of impeaching her with prior inconsistent statements. Despite its earlier ruling, the court concluded over defendant's objection that the prosecution would be allowed to ask J.M. questions pertaining to defendant's status as a gang member in order to impeach her testimony, and that an appropriate limiting instruction would be given.

On direct examination, J.M. testified that she and defendant were home on the morning of December 16, 2004, until defendant took her to work. She said he picked her up from work at 2:00 p.m. and drove her to his mother's house to have something to eat. Sometime that afternoon, defendant and J.M. brought papaya salad from a neighbor, dropped defendant's two younger brothers off down the street, and went to visit defendant's friend (a mechanic), to have him look at J.M.'s van FN5 J.M. and defendant drove back home to North Highlands (a 30- to 40-minute drive), arriving there at approximately 6:00 or 6:30 p.m. They ate in and watched a movie and remained home the rest of the night.

[FN5. The mechanic's house is located next door to the victim's house.] On cross-examination, J.M. was questioned about inconsistencies between her trial testimony and prior statements she had given to police, including statements regarding defendant's gang affiliation. At defense counsel's request, the court gave a limiting instruction regarding use of J.M.'s testimony related to defendant's alleged gang affiliation.

The jury found defendant guilty of attempted murder and discharge of a firearm into an occupied vehicle, and found the related special allegations to be true. The court declared a mistrial on the remaining charges.

At the sentencing hearing one month later, defense counsel requested a continuance, telling the court he had recently obtained information, and conducted some investigation, regarding the "real shooter" (a person named A.P.) and a possible percipient witness (a person named P.S.), and needed additional time to conduct further investigation in that regard. The court considered the information "sketchy and [ ] uncorroborated," and denied the request.

Prior to imposition of sentence, defendant read a statement to the court which set forth various complaints regarding the adequacy of his legal representation at trial. Characterizing those complaints as a Marsden request, the court conducted ...

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