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Bustamante v. Garcia

September 8, 2009

JESUS BUSTAMANTE, PETITIONER,
v.
S. GARCIA, RESPONDENT.



The opinion of the court was delivered by: M. James Lorenz United States District Court Judge

ORDER ADOPTING REPORT AND RECOMMENDATION; OVERRULING OBJECTIONS; DENYING PETITION FOR WRIT OF HABEAS CORPUS and DIRECTING ENTRY OF JUDGMENT

Petitioner Jesus Bustamante filed a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254 that has been fully briefed. The matter was referred to United States Magistrate Judge Cathy Ann Bencivengo, for a Report and Recommendation ("Report") under 28 U.S.C. § 636(b)(1)(B) and Civil Local Rule 72.3. The magistrate judge issued a Report recommending the petition be denied in its entirety. Petitioner timely filed objections. Respondent did not file an objection or a response to petitioner's objections.

Standard of Review

A federal court may not grant an application for writ of habeas corpus on behalf of a person in state custody with respect to any claim that was adjudicated on the merits in state court proceedings unless the 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). However, the state court need not cite or even be aware of the controlling Supreme Court cases, "so long as neither the reasoning nor the result of the state-court decision contradicts them." Early v. Packer, 537 U.S. 3, 8 (2002).

Before a federal court may overturn a conviction resulting from a state trial... it must be established not merely that the [State's action] is undesirable, erroneous, or even 'universally condemned,' but that it violated some right which was guaranteed to the defendant by the Fourteenth Amendment.

Cupp v. Naughten, 414 U.S. 141, 146 (1973)

Under 28 U.S.C. § 636(b)(1), in reviewing a magistrate judge's report and recommendation, the district court "shall make a de novo determination of those portions of the report... to which objection is made," and "may accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate judge." Under this statute, "the district judge must review the magistrate judge's findings and recommendations de novo if objection is made, but not otherwise." United States v. Reyna-Tapia, 328 F.3d 1114, 1121 (9th Cir.) (en ) (emphasis in original); see Schmidt v. Johnstone, 263 F. Supp. 2d 1219, 1225-26 & n.5 (D. Ariz. 2003) (applying Reyna-Tapia to habeas review). As previously noted, petitioner filed objections ("Obj.") to the Report.

Discussion

1. Factual and Procedural Background

Petitioner does not object to the factual and procedural background contained within the California Court of Appeals decision*fn1 (Lodgment 5) and as set forth in the Report. The facts as found by the state appellate court are as follows:

I. Factual Background

A. The Witnesses' Relationships

The principal prosecution witnesses were Tina Carranza (Tina), Nathan Truehitt (Nathan) and Sherry Jacobson (Sherry). These three persons and the victim [Kevin Schaum] were involved in a web of relationships.

In the late spring of 1992 Tina met Nathan. At that time Tina had been dating [Kevin]. However, on meeting Nathan she broke up with [Kevin] and a week later began seeing Nathan. Shortly thereafter, Tina began living with Nathan. She lived with Nathan until approximately one week before the August 15, 1992 murder. Nathan threw Tina out of the Wardlow house because he was jealous of her continued relationship with [Kevin] and because Tina was unable to get along with Sherry, who was to move into the Wardlow house. [footnote 2: Tina conceded she and [Kevin] had been intimate while Nathan was in jail during July 1992 and had also spent the night with [Kevin] the night prior to Nathan's throwing her out. Sherry had reported her suspicions of Tina's infidelity to Nathan while Nathan was in jail, and Nathan and Tina had violent arguments over Tina's relationship to [Kevin].]

Sherry was a friend of Nathan's daughter, became close to Nathan and viewed him as an uncle. Sherry was a methamphetamine user. Nathan provided her with a home, money and drugs; in return she sold drugs for Nathan.

Sherry first met [Kevin] through Tina in June 1992 when Tina requested [Kevin] to repair Sherry's car. Although Sherry at first liked [Kevin], she became antagonistic when convinced [Kevin] had stolen property belonging to Nathan and her. [footnote 3: During July 1992 Nathan was jailed for possession of methamphetamine. While Nathan was in jail, Tina and [Kevin] packed and moved Nathan's belongings from his old house and stored them in a U-Haul truck at a friend's home. Sherry believed [Kevin] had stolen some of the property while it was being stored. Sherry enlisted the help of Bustamante and Mr. Jacobo to try to convince [Kevin] to return the property. After [Kevin] refused, Bustamante used a small knife to puncture the tire of the U-Haul.] Sherry also disliked [Kevin] because she suspected he was sleeping with Tina while Nathan was in jail. Sherry reported her suspicions of the Tina-victim relationship to Nathan.

B. The Relationship of the Co-defendants

Sherry met Bustamante through a Mr. Jacobo and began dating Bustamante in the summer of 1992. [footnote 4: Mr. Jacobo and Nathan were business acquaintances in the drug business.] Bustamante introduced [co-defendant] Gonzalez to Sherry about 10 days before the murder, stating Gonzalez was like a brother to him and that he (Bustamante) would die for Gonzalez. Bustamante also introduced [co-defendant] Flores to Sherry about a week before the murder, stating Flores was like a brother to him. Sherry saw Bustamante give Flores a knife as a gift.

Sherry introduced Bustamante to Nathan sometime during the two weeks prior to the murder. Bustamante was staying at the Wardlow house (with Nathan and Sherry) for several days prior to the murder. Nathan met the other co-defendants at the Wardlow house when Nathan arrived home on the day of the murder and found them and many others at the house.

C. The Shooting

On the evening of August 15, 1992, Nathan, Tina, Sherry, Jacobo, a Ms. Morris, a Mr. Pagel, the three co-defendants and others were at the Wardlow house. During the day, Bustamante was drinking with his friends. Several people, including Gonzalez and Nathan, were ingesting drugs.

During the same day, Sherry saw Gonzalez in the living room of the Wardlow house showing off a large revolver and heard Gonzalez comment: "Imagine what this can do with a hollow point bullet." Jacobo was present while Gonzalez and Bustamante examined the gun and Jacobo looked at it before returning it to Gonzalez. Jacobo later told police he had seen some hollow point bullets Gonzalez had for the revolver and that the revolver was a.44 caliber special. [footnote 5: Jacobo was testifying under a grant of immunity. At trial, he denied seeing any hollow point ammunition in Gonzalez's possession and claimed that his statement to police about the ammunition was untruthful. He claimed to have told police what they wanted to hear because he feared being charged in the murder. However, police testified Jacobo told them of the hollow point ammunition before they had revealed to him the type of ammunition recovered at the scene. Sherry confirmed seeing Jacobo holding hollow point bullets prior to the shooting.] Another person present, Mr. Guadiana, saw Gonzalez lift his shirt to display the gun tucked in Gonzalez's waistband. Jacobo also told police he had seen Flores with a knife earlier that day and Flores would occasionally pull it from his pocket and play with it. Jacobo told police the knife was "legal" because the blade was less than three inches long.

At approximately 8 p.m., [Kevin] unexpectedly arrived at the Wardlow house and pulled his car into the driveway. Ms. Morris went outside to see what [Kevin] wanted and then returned to the house to tell Tina that [Kevin] wanted to see her. When Tina did not go outside, Sherry went out, spoke with [Kevin] and then returned inside to tell Tina that [Kevin] was waiting for her. Sherry then went back outside to tell [Kevin] that Tina would be right out.

Tina, accompanied by Nathan, went outside. Tina went to the passenger side window, began screaming at [Kevin] and asked, "What are you doing here? How did you know where I lived?" While Tina was yelling, Nathan went to the driver's side and told [Kevin] to leave. Sherry heard the yelling from inside and came back outside.

Sherry then saw Bustamante, followed by Flores and Gonzalez, emerge from the house and walk toward the car. Sherry, seeing they had angry looks on their faces, told them not to do anything stupid or crazy, but Flores had a smirk on his face and rolled his eyes. Sherry testified Flores and Bustamante went to the passenger side window, leaned through it and made striking motions at [Kevin]. Nathan testified that he saw Bustamante on the passenger side attacking [Kevin] and that Gonzalez was leaning in through the driver's side window. Nathan saw someone inside the car wielding a bottle but could not tell who it was.

Tina screamed at Sherry to tell them to stop. Ten to twenty seconds after the co-defendants began their attack a shot rang out. Sherry heard the gunshot, saw the flash and ran inside. Tina saw the car jerk as if the clutch pedal had been released. Nathan saw the flash of the shot, saw [Kevin]'s head go forward and immediately thereafter saw a gun in Gonzalez's hand.

When Tina heard the shot she turned and saw Nathan standing near the left front wheel of [Kevin]'s car holding his hands in the air and saying, "Oh, my god, they shot him." Sherry came back outside and saw Nathan holding his head and saying, "I can't believe they did this" and saw Tina crying hysterically and yelling, "Oh, my god, they shot him." Nathan almost immediately told Sherry that Gonzalez had been the shooter.

Jacobo, who was inside when the shot was fired, ran out and saw Nathan, Bustamante, Gonzalez and Flores standing around the car. Jacobo heard someone say, "Let's get out of here." Then Jacobo (along with Flores, Bustamante and Guadiana) got into Jacobo's car and left. As he and the others left the scene, Jacobo saw Gonzalez putting a gun into his waistband. Gonzalez left in his own car.

D. Post Shooting Events

Nathan remained at the Wardlow house waiting for police to arrive, cleaning up beer bottles and disposing of the drugs around the house. Nathan instructed Sherry and Tina not to go near the car because they might disturb the fingerprints.

Jacobo, accompanied by Flores and Bustamante, drove to a house owned by Bustamante's brother, Sergio Bustamante (Sergio). During the trip, Flores was laughing and bragging that Flores "stuck him." Flores also told Bustamante: "You're my family. I'd kill for you." While at Sergio's house, Flores told Gonzalez: "I got him." He also told Gonzalez: "If you want, I'll do time for it." Bustamante stated he had struck [Kevin] in the face with a beer bottle and had left a beer bottle at the scene, saying, "Damn, they got my fingerprints."

Sergio later told police Gonzalez said he had hit [Kevin] and the gun accidentally discharged. Sergio also told police Gonzalez said he had used a.44 or.45 caliber revolver.

Bustamante told police he was one of the first to come out of the Wardlow house and he had a beer bottle in his hands which may have dropped inside [Kevin]'s car. Bustamante also told police the shooter was pistol-whipping [Kevin] when the gun discharged by accident.

E. Physical Evidence

Police recovered beer bottles from around the car and inside the car. A palm print taken from the passenger side door of [Kevin]'s car matched Flores's prints.

The bullet retrieved from [Kevin] was a hollow point.44 caliber, which only one company manufactures. The bullet could only have been fired from a.44 caliber revolver and the criminalist explained that because of the design of the revolver it cannot fire by accident; firing requires that someone pull the trigger.

The pathologist found [Kevin] had suffered three stab wounds in the right chest area consistent with a single-edged folding knife of less than three inches in length. [Kevin] also had a gunshot wound to his head that indicted the gun had been fired at very close range. [Kevin] also had cuts on the right side of his face. The cause of death was the gunshot wound to the head and two of the three stab wounds which had punctured the lungs.

F. The Defense Theory

Gonzalez denied owning a gun or showing a gun around the Wardlow house. He claimed he saw a gun at the house that day when Nathan opened a drawer to retrieve drugs for them to consume. Gonzalez's version was as follows:

Gonzalez came out of the bathroom and saw Nathan pacing back and forth. Gonzalez then went outside and saw Tina arguing with someone as she stood next to the driver's window of a car. Nathan then ran up to Tina, pulled her away and began yelling at [Kevin] and poking [Kevin] with his finger. As the fight escalated Bustamante pulled Tina away. Gonzalez saw Nathan lean into the car and then saw a flash and heard a gunshot. Bustamante jumped back from the car. Gonzalez heard someone say, "Let's get out of here." Gonzalez then left. Later the next morning Gonzalez learned, through Jacobo, that Nathan was accusing Gonzalez of the shooting.

The defense also relied on Tina's testimony that Nathan was a violent person and had a tendency to become angry after ingesting methamphetamine. Nathan was under the influence of methamphetamine that day and was behaving irrationally. Jacobo claimed Nathan had threatened violence against [Kevin] prior to the shooting. After the shooting, Nathan threatened Tina with "the same thing done to you that was done to Kevin."

(Lodgment No. 5 at 3-9; Report at 2-5.)

The procedural background provided in the Report ...


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